Republic of the Philippines SUPREME COURT Manila FIRST ... [PDF]

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION A.C. No. 5321

September 27, 2006

RAMON C. GONZALEZ, complainant, vs. ATTY. ARNEL C. ALCARAZ, respondent. PANGANIBAN, C.J.: Disbarment cases are sui generis. Being neither criminal nor civil in nature, these are not intended to inflict penal or civil sanctions. The main question to be determined is whether respondent is still fit to continue to be an officer of the court in the dispensation of justice. The Case and the Facts This case arose from a Complaint-Affidavit 1 filed by Ramon C. Gonzalez with the Office of the Bar Confidant of the Supreme Court. The Complaint was subsequently referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 2 Complainant charged Atty. Arnel C. Alcaraz with grave misconduct, abuse of authority, and acts unbecoming a lawyer. The antecedents were summarized by the IBP Commission on Bar Discipline (IBP-CBD) as follows: "x x x [C]omplainant alleges that on 11 August 2000, while he was driving along the South Superhighway upon entering the Sucat Toll Gate heading towards Makati, respondent, who was driving a Nissan Infiniti suddenly cut across his path while overtaking him and almost hit his car had he not been able to evade it. According to complainant, he chased respondent's car and when he was side by side with respondent's car, he angrily confronted respondent and then drove on. Complainant claims that respondent then chased him and shot him twice but fortunately missed him by a few inches[,] but broken glass coming from the shattered window allegedly hit him and slightly wounded his right arm and stomach. Complainant adds that respondent allegedly tried to escape but he was able to chase him and block his way at the Nichols Toll Gate where the PNCC guards responded to his call for assistance. According to complainant, respondent attempted to escape and avoid the PNCC guards by 'proclaiming boisterously that he is a lawyer and a customs official' but complainant was able to block his way again and their vehicles collided in the process. Complainant claims that he requested the PNCC guards to confiscate respondent's firearm and accompany them to the nearest police station. At the time of the 'arrest,' respondent allegedly opened the back door of his car and pretended to have accidentally dropped so much money which distracted the policemen from further searching the car. "At the police station, respondent allegedly identified himself and his lady companion, a certain Ferlita Semeniano, and [said] that he was the Deputy Customs Collector assigned at Batangas City. Complainant claims that respondent yielded 'one (1) Super .38 cal. Springfield Automatic Pistol, SN NMII 3138, one (1) magazine with seven (7) live ammos and three (3) spent (empty) shells.' Complainant adds that respondent presented only an unsigned Memorandum Receipt (MR) of the firearm without any Mission Order or Permit to Carry. Complainant claims that respondent allegedly kept calling persons to help him and a 'fabricated Mission Order was brought and presented by another person more than eight hours after the shooting incident and apprehension.' "Complainant alleges that the Nissan Infiniti used by respondent is allegedly a luxury vehicle which was not covered by any document whatsoever and 'it was not verified whether stolen or smuggled.' "Complainant finally alleges that the PNP Crime Laboratory examined his car and 'they recovered one slug in between the wall of the left rear door while the other bullet went through the right front seat and exited at the left rear door of complainant's car and that cases of Frustrated Homicide and Illegal Possession of Firearms were already filed at the Parañaque City Prosecutor's Office. xxx

xxx

xxx

"In his Comment dated 04 January 2001, respondent claims that the present administrative case is unfounded and unwarranted

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and was allegedly filed in bad faith, with malice and ill motive and allegedly has no other purpose but to harass, vex, humiliate and dishonor him. In support thereof, respondent points to the fact that complainant filed 'substantially identical complaint affidavits with the same identical alleged cause of action as that of the present administrative case at [various] judicial, quasijudicial and administrative tribunals and accused him of forum-shopping. "Respondent denied the narration of facts stated in complainant's Complaint-Affidavit as 'self-serving, a misrepresentation of facts and obviously tainted.' Respondent claims that he was not the aggressor during the incident and that he did not provoke complainant. Respondent claims that he 'justly acted in self-defense and defense of a stranger under the true actuality of facts and circumstances the[n] prevailing.' "Respondent also claims that the acts complained of in the present case were not connected with the practice of the legal profession and the fact that he was a lawyer is merely coincidental, immaterial and irrelevant. xxx

xxx

xxx

"In connection with the cases filed by the parties against each other, respondent submitted the xxx Resolutions/Decisions issued in said cases to show that the charges filed against him by the complainant were dismissed while the criminal cases he filed against the latter [were] filed in court. xxx

xxx

xxx

"Finally, it is the submission of the respondent that since the alleged acts complained of are not within the sphere of his professional duties as a lawyer, but rather are acts done in his non-professional or private capacity, the same, cannot allegedly be the subject of an administrative complaint for disbarment."3 Report and Recommendation of the Integrated Bar of the Philippines In his Report,4 IBP Investigating Commissioner Rafael Antonio M. Santos said that the dismissal of the criminal and other administrative charges filed by complainant indicated that respondent's version of the incident was given credence by the investigating officials and agencies of the various other tribunals in which these charges were filed. Consequently, since no sufficient evidence warranted the imposition of further disciplinary sanctions on respondent, the investigating commissioner recommended the dismissal of the administrative case. In Resolution No. XVI-2005-29 dated March 12, 2005, the board of governors of the IBP adopted the Report and Recommendation of Commissioner Santos. On July 8, 2005, the Resolution, together with the records of the case, was transmitted to this Court for final action, pursuant to Section 12(b) of Rule 139-B of the Rules of Court. On August 4, 2005, complainant asked this Court to set aside Resolution No. XVI-2005-29 of the IBP board of governors. Upon orders of this Court,5 respondent filed on August 22, 2005, his Comment on complainant's plea. The Court's Ruling The Court disagrees with the findings and recommendation of the IBP. Administrative Liability of Respondent At the outset, we stress that the dismissal of the criminal cases against respondent did not erase the occurrence of the shooting incident, which he himself does not deny. Moreover, this incident has been established by clear and convincing evidence. Thus, he must face the consequences of his actions. The first Canon of the Code of Professional Responsibility provides as follows: "CANON 1. - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes."6 Furthermore, respondent bound himself to "obey the laws" in his attorney's oath, 7 which underscores the role of lawyers as officers of our

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legal system. A lawyer's brash transgression of any, especially a penal, law is repulsive and reprehensible and cannot be countenanced by this Court.8 Admitting that he fired shots in the direction of complainant while they were speeding along South Luzon Expressway, 9 respondent justifies his actions by claiming self-defense and defense of a stranger. During the traffic altercation, complainant allegedly exchanged angry words with respondent and, from an open car window, even threw a handful of coins at the latter. 10 Respondent further avers that, from his higher vantage point, he saw complainant draw a pistol. 11 The former contends that when he fired the shots, he had no intention of hitting complainant but merely wanted to scare him away. Reviewing the factual circumstances, we are convinced that the defenses proffered are mere afterthoughts. Based on the physical and documentary evidence, complainant's version of the incident is more credible. First, the allegation of respondent that complainant hit him with coins is highly improbable. At that time, both vehicles were speeding along the highway. Since the PNP Crime Laboratory Report 12 showed that the bullets fired by respondent had come from the right side, his vehicle must have been to the right of complainant's. If we were to accept this version, the coins hurled by complainant had to pass through his car's right window and then through the left window of respondent's admittedly taller sports utility vehicle (SUV). Given their relative positions, it is highly incredible that the coins could have hit respondent and his companion. Second, assuming that respondent and his companion were indeed hit by coins, this alleged fact was not a sufficient unlawful aggression that would justify shooting at complainant. As a lawyer, respondent should know that the following three requisites must concur to justify self-defense: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-defense.13 On the other hand, in defense of a stranger, the first two requisites must also be present together with the element that the person defending was not induced by revenge, resentment or other evil motive. 14 Of these requisites, unlawful aggression is a conditio sine qua non for upholding both self-defense and defense of a stranger; the fundamental raison d'etre of these defenses is the necessity to prevent or repel an aggression. 15 The alleged throwing of coins by complainant cannot be considered a sufficient unlawful aggression. Unlawful aggression presupposes actual, sudden, unexpected or imminent threat to life and limb. 16 There was no aggression to prevent or repel. Absent this imminent threat, respondent had no legal reason to shoot "in the direction of complainant." Third, for lack of supporting evidence, neither can merit be accorded to respondent's claim of imminent threat after allegedly seeing complainant draw a pistol. The Joint Affidavit 17 of PNCC Officers Florencio Celada y Seso, Jr. and Mario Puso y Visaya mentioned no firearm found in the possession of complainant. Except for the bare and belated allegations of respondent, there was no showing that complainant's alleged possession of the pistol had been reported to the PNCC officers or later to the police headquarters. Thus, without proof of the existence of the firearm, respondent has not convincingly shown any legal justification for his act of firing at complainant. 18 Fourth, right after the shooting incident, respondent fled the scene. He stopped only when PNCC officers blocked his vehicle in response to complainant's call for assistance. If respondent was only protecting himself and his companion, then his righteous indignation should have propelled him to report immediately his version of the incident to the PNCC officers. Disbarment Proceedings Sui Generis Respondent maintains that the dismissal of the cases filed by complainant against him in the various tribunals and agencies proves that the present case for disbarment is unfounded. We do not agree. Well-established is the rule that administrative cases against lawyers belong to a class of their own. These cases are distinct from and proceed independently of civil and criminal cases. 19 In Re Almacen,20 the Court discoursed on this point thus: "x x x [D]isciplinary proceedings [against lawyers] are sui generis. Neither purely civil nor purely criminal, x x x [they do] not

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involve x x x a trial of an action or a suit, but [are] rather investigation[s] by the Court into the conduct 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. x x x." 21 Respondent's administrative liability stands on grounds different from those in the other cases previously filed against him; thus, the dismissal of these latter cases does not necessarily result in administrative exculpation. Settled is the rule that, being based on a different quantum of proof, the dismissal of a criminal case on the ground of insufficiency of evidence does not necessarily foreclose the finding of guilt in an administrative proceeding.22 Misconduct Committed in a Private Capacity Untenable is respondent's argument that the acts complained of cannot be the subject of a complaint for disbarment, because they were done in his private capacity. Whether in their professional or in their private capacity, lawyers may be disbarred or suspended for misconduct. This penalty is a consequence of acts showing their unworthiness as officers of the courts; as well as their lack of moral character, honesty, probity, and good demeanor.23 When the misconduct committed outside of their professional dealings is so gross as to show them to be morally unfit for the office and the privileges conferred upon them by their license and the law, they may be suspended or disbarred. 24 In Cordon v. Balicanta,25 this Court explained the rationale for this holding as follows: "x x x. If the practice of law is to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not only master its tenets and principles but should also, in their lives, accord continuing fidelity to them. Thus, the requirement of good moral character is of much greater import, as far as the general public is concerned, than the possession of legal learning. Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also throughout their legal career, in order to maintain 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.'" 26 The vengeful and violent behavior exhibited by respondent in what should have been a simple traffic altercation reveals his conceit and delusions of self-importance. By firing his gun openly in a congested highway and exposing complainant and the general public to danger, he showed his utter lack of a sense of responsibility, as well as of respect for law and order. Accordingly, administrative sanction is warranted by respondent's gross misconduct. In line with Lao v. Medel,27 Co v. Bernardino,28 and Saburnido v. Madroño,29 suspension from the practice of law for one year is appropriate in this case. WHEREFORE, Atty. Arnel C. Alcaraz is found GUILTY of gross misconduct and is hereby SUSPENDED for one year from the practice of law, effective upon his receipt of this Decision. He is warned that a repetition of the same or a similar act will be dealt with more severely.

A.C. No. 6678

October 9, 2006

JOCELYN A. SAQUING, complainant, vs.

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ATTY. NOEL A. MORA, respondent.

DECISION

YNARES-SANTIAGO, J.: Complainant Jocelyn A. Saquing seeks the disbarment of respondent Atty. Noel A. Mora for grave misconduct for allegedly conspiring with spouses Paulino and Manuela Mora in inducing her to buy an unregistered parcel of land, and for performing a notarial act without a commission, he being a lawyer of the Public Attorney’s Office (PAO). Complainant alleged that in June 2004, she bought from the spouses Mora 7,828 square meter parcel of allegedly registered land located at Sitio Paquiel, Camasi, Peñablanca, Cagayan, for P782,800.00. 1 On July 8, 2004, she paid the amount of P550,000.00 to the spouses Mora at the house of the respondent, who prepared a handwritten acknowledgment receipt, which reads: 2 ACKNOWLEDGMENT RECEIPT This is to acknowledge receipt the amount of FIVE HUNDRED FIFTY THOUSAND PESOS (P550,000.00) from MS. JOCELYN [A.] SAQUING as partial payment of the Lot 108-3, PSU-(2f) 02-165983 Amd 3 with an area of Seven Thousand Eight Hundred Twenty Eight (7,828) square meters located at Camasi, Peñablanca, Cagayan. The balance in the amount of TWO HUNDRED THIRTY TWO THOUSAND EIGHT HUNDRED PESOS (P232,800.00) shall be paid within the period of three (3) months. Executed this 8th day of July, 2004 at Tuguegarao City. (Sgd.) JOCELYN [A.] SAQUING

(Sgd.) PAULINO MORA

(Sgd.) MANUELA ASPA MORA SIGNED IN THE PRESENCE OF: ____________________________ SUBSCRIBED AND SWORN to before me this 8th day of July, 2004 at Tuguegarao. (Sgd.) ATTY. NOEL A. MORA3 After payment of the remaining balance, respondent prepared the Deed of Absolute Sale of a Portion of Unregistered Land, 4 but complainant refused to affix her signature on the deed because it was stated therein that the land was unregistered, contrary to the representations of the spouses and the respondent.5 When the spouses Mora refused to return the contract price, complainant filed a complaint for estafa against them at the City Prosecutor’s Office, Tuguegarao City, and an administrative case for disbarment against the respondent at the Office of the Bar Confidant. 6 Respondent denied conspiring with spouses Mora regarding the sale of the land. He alleged that before he prepared the acknowledgment receipt, the parties had already agreed on the terms of the contract; thus, there was no need for him to convince complainant to buy the land. He admitted that he asked the parties to subscribe the acknowledgment receipt and swear before him but claimed that he did it only for complainant’s protection in case any problem would arise. He denied giving any assurance that the land was registered. In fact, he explained to her the status of the case with the Department of Environment and Natural Resources (DENR) and that the spouses were facilitating the titling of the property in their names. 7

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Complainant filed a Reply8 to respondent’s comment, after which the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 9 In its Resolution No. XVII-2006-238, dated April 27, 2006, the IBP Board of Governors approved the report and recommendation of the Investigating Commissioner, Lolita A. Quisumbing, finding respondent guilty of violating Rule 1.01, Canon 1 of the Code of Professional Responsibility for notarizing the Acknowledgment Receipt without notarial commission and recommending that he be reprimanded with warning that repetition of the same act will be dealt with more severely. 10 This resolution is now before us for review. In disbarment proceedings, the burden of proof is upon the complainant and this Court will exercise its disciplinary power only if the former establishes its case by clear, convincing, and satisfactory evidence. 11 Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty. 12 Complainant’s evidence consists mainly of her Affidavit-Complaint, Acknowledgment Receipt, Deed of Absolute Sale of a Portion of Unregistered Land and her testimony before the Commission attesting to the truth of the allegations in her affidavit. We agree with the Investigating Commissioner that while the evidence of complainant is sufficient to support the charge that respondent notarized the Acknowledgment Receipt without a notarial commission, the same however is insufficient to prove that respondent conspired with spouses Mora in inducing her to purchase the land. Thus, Other than complainant’s bare allegation, there is no extant proof adequately showing that respondent told her that the property was registered land. Instead, we find sufficient evidence to support the finding that there was no connivance and that complainant was aware that the property was still to be titled: 1. The Acknowledgment Receipt describes the property as "Lot 108-3, PSU (2f) 02-165983 xxx" and not by TCT or OCT Number. 2. The Acknowledgment Receipt provides that the balance shall be paid within a period of three (3) months. Thus, complainant had sufficient time to demand or verify if the property was registered with the Registry of Deeds. But instead of doing so, she made further payments on 16 August 2004 and 8 September 2004. 3. Complainant was present when the property was being surveyed for the purpose of segregating the lot to be adjudicated to her. The status of the property was further explained to her by Engr. Camb[r]i during the segregation survey of the property she bought. 4. The Lot Descriptions attached to the Survey Plan prepared by Engr. Cambri specifically states that Lot No. 15 was complainant’s. 5. The property was adjudicated to the spouses Mora by the DENR in the Order dated 5 October 2001 which already became final and executory. In a way, the title of spouses of the lot was confirmed and in the process of making it perfect through the approval of the subdivision plan and the appropriate public land application. This was explained by respondent to complainant since he is the lawyer of the spouses in the DENR case. 13 Anent the charge of notarizing a document without a notarial commission, we agree that such an act violates Rule 1.01, Canon 1 of the Code of Professional Responsibility, which reads: Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. In Nunga v. Viray,14 the Court held that: 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 without such commission is a violation of the lawyer’s 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 lawyer’s 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

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conduct." For such misconduct, the Court has sanctioned erring lawyers with suspension from the practice of law, revocation of the notarial commission and disqualification from acting as such, and even disbarment. 15 Disbarment is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution for only the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and a member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe – such as a reprimand, suspension, or fine – would accomplish the end desired. 16 In Joson v. Baltazar,17 the Court suspended a lawyer for three months for unauthorized notarization of a deed of sale. Considering, however, that in the instant case, it was only an Acknowledgment Receipt that was notarized; that it was done to protect the complainant; that it was the first offense of the respondent; and the heavy workload of the respondent as Public Attorney, we find the recommended penalty of reprimand sufficient under the present circumstances. WHEREFORE, in view of the foregoing, Resolution No. XVII-2006-238, dated April 27, 2006, of the IBP Board of Governors which adopted and approved the report and recommendation of Investigating Commissioner Lolita A. Quisumbing, finding respondent Atty. Noel A. Mora GUILTY of violating Rule 1.01, Canon 1 of the Code of Professional Responsibility for notarizing an acknowledgment receipt without a notarial commission and recommending that he be REPRIMANDED with warning that repetition of the same act will be dealt with more severely, is AFFIRMED. SO ORDERED. A.C. No. 6968

August 9, 2006

ATTY. ORLANDO vs. ATTY. MARICHU C. LAMBINO, Respondent.

V.

DIZON,

Complainant,

x-----------------------------------------x ATTY. MARICHU vs. ATTY. ORLANDO V. DIZON, Respondent.

C.

LAMBINO,

Complainant,

DECISION CARPIO MORALES, J.: The killing during a rumble on December 8, 1994 of University of the Philippines (UP) graduating student Dennis Venturina, the chairperson of the UP College of Public Administration Student Council, drew the then Chancellor of UP Diliman Roger Posadas to seek the assistance of the National Bureau of Investigation (NBI). Acting on the request of Chancellor Posadas, Atty. Orlando Dizon, then Chief of the Special Operations Group (SOG) of the NBI, together with his men, repaired to the Office of Col. Eduardo Bentain, head of the UP Security Force on December 12, 1994. As two student-suspects in the killing, Francis Carlo Taparan and Raymundo Narag, were at the time in the office of Col. Bentain, Atty. Dizon requested to take them into his custody. Atty. Marichu Lambino, Legal Counsel of UP Diliman, who repaired to the Office of Col. Bentain, advised against Atty. Dizon’s move, however, he not being armed with a warrant for their arrest. Chancellor Posadas and Vice Chancellor for students Rosario Torres-Yu, who also repaired to the office of the colonel, joined Atty. Lambino in opposing the turn-over of the suspects to Atty. Dizon, despite the latter’s claim that under its Charter the NBI was authorized to make warrantless arrests. The suspects’ lawyer, one Atty. Villamor, later also showed up at the office of Col. Bentain and after what appeared to be a heated discussion between Atty. Dizon and the UP officials, the students were allowed to go back to their dormitories, with Atty. Villamor undertaking to accompany them to the NBI the following morning.

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The two student-suspects were eventually indicted in court. Hence, spawned the filing of a complaint by Atty. Dizon against Atty. Lambino before the Integrated Bar of the Philippines (IBP), for violation of Canon 1, Rules 1.1 to 1.3 of the Code of Professional Responsibility, docketed as CBD Case No. 346. Atty. Dizon had earlier filed a criminal complaint also against Atty. Lambino, together with Chancellor Posadas and Vice Chancellor Torres-Yu and Col. Bentain, before the Ombudsman, for violation of P.D. 1829 which makes it unlawful for anyone to obstruct the apprehension and prosecution of criminal offenses. Atty. Lambino in turn charged Atty. Dizon before the IBP with violation of the Code of Professional Responsibility, specifically Canon 1, Rule 1.01, 1.02, and 1.03; Canon 6, Rules 6.01 and 6.02; and Canon 8, Rule 8.01, docketed as CBD Case No. 373. The administrative cases were, on motion of Atty. Lambino, consolidated. Before the IBP Commission on Bar Discipline (CBD), the issues were defined as follows: 1. Whether the act of Atty. Lambino in refusing to turn over the suspected students to the group of Atty. Dizon constitutes violation of Code of Professional Responsibility. 2. Whether the act of Atty. Dizon in trying to arrest the student-suspects constitutes violation of the Code of Professional Responsibility. By Report and Recommendation submitted to the Board of Governors of the IBP on June 20, 2005, CBD Investigating Commissioner Siegfrid B. Mison recommended the dismissal of the complaint against Atty. Lambino in light of a finding that she "acted within her official duties as she safeguarded the rights of the students in accordance with the school’s substitute parental authority" and "within the bounds of the law as the NBI agents had no warrants of arrest." With respect to the complaint against Atty. Dizon, the Commissioner recommended to reprimand him for violating the Code of Professional Responsibility in "recklessly tr[ying] to arrest" the suspects without warrant. The IBP Board of Governors, by Resolution of October 22, 2005, adopted and approved the Commissioner’s Report. The IBP thereupon transferred to this Court its Notice of Resolution, together with the records of the cases which this Court noted by Resolution of February 1, 2006. As earlier stated, the issue against Atty. Lambino is whether she violated the Canons of Professional Ethics in "refusing to turn over the suspected students to the group of Atty. Dizon." When the complaint of Atty. Dizon before the Ombudsman against Chancellor Posadas, Vice Chancellor Torres-Yu and Atty. Lambino was elevated on Certiorari and Prohibition, this Court addressing in the negative the two issues raised therein, to wit: (1) Whether the attempted arrest of the student suspects by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for prosecuting petitioner for violation of P.D. No. 1829. x x x, 1 held that the objection of the said UP officials to the arrest of the students "cannot be construed as a violation of P.D. No. 1829, Sec. 1 (c) without rendering it unconstitutional,"2 they having "a right to prevent the arrest [of the students] at the time because their attempted arrest was illegal."3 Indeed, Atty. Lambino was legally justified in advising against the turn over of the suspects to Atty. Dizon, there being no basis for him to effect a warrantless arrest. Atty. Dizon’s administrative complaint against her must then be dismissed. Respecting the complaint against Atty. Dizon, this Court, also in Posadas v. Ombudsman, held that "[f]or the failure of the NBI agents to comply with the constitutional and procedural requirements, . . . their attempt to arrest [the two student-suspects] without a warrant was illegal."4 In the main, Atty. Dizon invoked Section 1 (a) of Republic Act 157 (The NBI Charter) which empowers the NBI "to undertake investigations of crimes and other offenses against the laws of the Philippines, upon its own initiative and as public interest may require" 5 and to make arrests. The invocation does not impress. Said section does not grant the NBI the power to make warrantless arrests. The NBI Charter clearly qualifies the power to make arrests to be "in accordance with existing laws and rules."

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Members of the investigation staff of the Bureau of Investigation shall be peace officers, and as such have the following powers: (a) To make arrests, searches and seizures in accordance with existing laws and rules.6 x x x x (Emphasis supplied) By persisting in his attempt to arrest the suspected students without a warrant, Atty. Dizon violated Rule 1.02 of Canon 1 of the Code of Professional Responsibility which provides: CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. xxxx Rule 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. (Emphasis supplied). WHEREFORE, CBD Case No. 346 against Atty. Marichu C. Lambino is DISMISSED. Atty. Orlando V. Dizon is, in CBD Case No. 373, found guilty of violation of Canon 1 of Rule 1.02 of the Code of Professional Responsibility and is REPRIMANDED and WARNED that a repetition of the same or similar infraction shall be dealt with more severely. Let a copy of this Decision be furnished the Office of the Bar Confidant, the National Bureau of Investigation, and the Department of Justice. SO ORDERED. [A.C. No. 1261. December 29, 1983.] TAN TEK BENG, Complainant, v. TIMOTEO A. DAVID, Respondent. Basilio Lanoria for complainant. Timoteo A. David for and in his own behalf.

SYLLABUS

1. LEGAL ETHICS; MEMBER OF THE BAR; SOLICITING CASES AT LAW FOR THE PURPOSE OF GAIN; CONSTITUTES MALPRACTICE. — Where in the agreement lawyer David not only agreed to give one-half of his professional fees to an intermediary or commission agent but he also bound himself not to deal directly with the clients, the Court held that the said agreement is void because it was tantamount to malpractice which is "the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers" (Sec. 27, Rule 138, Rules of Court). Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical meaning to the term "malpractice" (Act No. 2828, amending Sec. 21 of Act No. 190). That meaning is in consonance with the elementary notion that the practice of law is a profession, not a business. "The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional" (2 R.C.L. 1097 cited in In re Tagorda, 33 Phil. 37, 42). 2. ID.; ID.; ID.; UNPROFESSIONAL CONDUCT; CAUSE FOR CENSURE. — The commercialization of law practice is condemned in certain canons of professional ethics adopted by the American Bar Association. "Unprofessional conduct in an attorney is that which violates the rules or ethical code of his profession or which is unbecoming a member of that profession" (Note 14, 7 C.J.S. 743). We censure lawyer David for having entered and acted upon such void and unethical agreement. We discountenance his conduct, not because of the complaint of Tan Tek Beng (who did not know legal ethics) but because David should have known better.

DECISION

AQUINO, J.:

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The issue in this case is whether disciplinary action should be taken against lawyer Timoteo A. David (admitted to the bar in 1945) for not giving Tan Tek Beng, a nonlawyer (alleged missionary of the Seventh Day Adventists), one-half of the attorney’s fees received by David from the clients supplied by Tan Tek Beng. Their agreement reads:jgc:chanrobles.com.ph "December 3, 1970 "Mr. Tan Tek Beng "Manila "Dear Mr. Tan:chanrob1es virtual 1aw library In compliance with your request, I am now putting into writing our agreement which must be followed in connection with the accounts that you will entrust to me for collection. Our terms and conditions shall be as follows:jgc:chanrobles.com.ph "1. On all commission or attorney’s fees that we shall receive from our clients by virtue of the collection that we shall be able to effect on their accounts, we shall divide fifty-fifty. Likewise you are entitled to commission, 50/50 from domestic, inheritance and commercial from our said clients or in any criminal cases where they are involved. "2. I shall not deal directly with our clients without your consent. "3. You shall take care of collecting our fees as well as advances for expenses for the cases referred to us by our clients and careful in safeguarding our interest. "4. It is understood that legal expenses that we shall recover from the debtors shall be turned over to our clients. Other clients who directly or indirectly have been approached or related (sic) to you as a result of your labor are your clients. "I hereby pledge in the name of God, our Heavenly Father, that I will be sincere, honest and fair with you in connection with our transactions with our clients. Likewise you must be sincere, honest and fair with me. Very truly yours, (Sgd.) Illegible TIMOTEO A. DAVID "P.S. I will be responsible for all documents entrusted me by our clients. (Sgd.) Initial "CONFORME to the above and likewise will reciprocate my sincerity to Atty. David as stated in the last paragraph of this letter. (Sgd.) Tan Tek Beng MR. TAN TEK BENG" The foregoing was a reiteration of an agreement dated August 5, 1969. Note that in said agreement lawyer David not only agreed to give one-half of his professional fees to an intermediary or commission agent but he also bound himself not to deal directly with the clients. The business relationship between David and Tan Tek Beng did not last. There were mutual accusations of doublecross. For allegedly not living up to the agreement, Tan Tek Beng in 1973 denounced David to Presidential Assistant Ronaldo B. Zamora, to the Office of Civil Relations at Camp Crame and to this Court. He did not file any civil action to enforce the agreement. In his 1974 comment, David clarified that the partnership was composed of himself as manager, Tan Tek Beng as assistant manager and lawyer Pedro Jacinto as president and financier. When Jacinto became ill and the costs of office maintenance mounted, David suggested that Tan Tek Beng should also invest some money or shoulder a part of the business expenses but Tan Tek Beng refused.chanrobles.com : virtual law library

10

This case was referred to the Solicitor General for investigation, report and recommendation. Hearings were scheduled from 1974 to 1981. It was proposed that respondent should submit a stipulation of facts but that did not materialize because the scheduled hearings were not held due to the nonavailability of Tan Tek Beng and his counsel. On September 16, 1977 Tan Tek Beng died at the Philippine Union Colleges Compound, Baesa, Caloocan City but it was only in the manifestation of his counsel dated August 10, 1981 that the Solicitor General’s Office was informed of that fact. A report on this case dated March 21, 1983 was submitted by the Solicitor General to this Court. We hold that the said agreement is void because it was tantamount to malpractice which is "the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers" Sec. 27, Rule 138, Rules of Court). Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical meaning to the term "malpractice" (Act No. 2828, amending sec. 21 of Act No. 190). That meaning is in consonance with the elementary notion that the practice of law is a profession, not a business. "The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional" (2 R.C.L. 1097 cited in In re Tagorda, 53 Phil. 37, 42; Malcolm, J., Jayme v. Bualan, 58 Phil. 422; Arce v. Philippine National Bank, 62 Phil. 569). The commercialization of law practice is condemned in certain canons of professional ethics adopted by the American Bar Association:jgc:chanrobles.com.ph "34. Division of Fees. — No division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility."cralaw virtua1aw library "35. Intermediaries. — The professional services of a lawyer should not be controlled or exploited by any law agency, personal or corporate, which intervenes between client and lawyer. A lawyer’s responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer’s relation to his client should be personal, and the responsibility should be direct to the client. . . ."cralaw virtua1aw library "38. Compensation, Commissions and Rebates. — A lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure." (Appendix, Malcolm, Legal Ethics). We censure lawyer David for having entered and acted upon such void and unethical agreement. We discountenance his conduct, not because of the complaint of Tan Tek Beng (who did not know legal ethics) but because David should have known better.chanrobles law library "Unprofessional conduct in an attorney is that which violates the rules or ethical code of his profession or which is unbecoming a member of that profession" (Note 14, 7 C.J.S. 743). WHEREFORE, respondent is reprimanded for being guilty of malpractice. A copy of this decision should be attached to his record in the Bar Confidant’s office. SO ORDERED. [A.C. No. 5299. August 19, 2003] ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information Office, complainant, vs. ATTY. RIZALINO T. SIMBILLO, respondent. [G.R. No. 157053. August 19, 2003] ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant Court Administrator and Chief, Public Information Office, respondents. RESOLUTION YNARES-SANTIAGO, J.: This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.”[1] Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up the published telephone

11

number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at the time of filing of the case and the other half after a decision thereon has been rendered. Further research by the Office of the Court Administrator and the Public Information Office revealed that similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.[2] On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.[3] In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified.[4] The case was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002-306,[6] finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was noted by this Court on November 11, 2002.[7] In the meantime, respondent filed an Urgent Motion for Reconsideration,[8] which was denied by the IBP in Resolution No. XV-2002606 dated October 19, 2002[9] Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, “Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public Information Office, Respondents.” This petition was consolidated with A.C. No. 5299 per the Court’s Resolution dated March 4, 2003. In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to submit the case for resolution on the basis of the pleadings.[10] Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its early resolution on the basis of pleadings and records thereof. [11] Respondent, on the other hand, filed a Supplemental Memorandum on June 20, 2003. We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-2002-606. Rules 2.03 and 3.01 of the Code of Professional Responsibility read: Rule 2.03. – A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 3.01. – A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Rule 138, Section 27 of the Rules of Court states: SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so. It has been repeatedly stressed that the practice of law is not a business.[12] It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.[13] The gaining of a livelihood should be a secondary consideration.[14] The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe

12

to themselves.[15] The following elements distinguish the legal profession from a business: 1. A duty of public service, of which the emolument is a by-product, and in which one may attain the highest eminence without making much money; 2. A relation as an “officer of the court” to the administration of justice involving thorough sincerity, integrity and reliability; 3.

A relation to clients in the highest degree of fiduciary;

4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.[16] There is no question that respondent committed the acts complained of. He himself admits that he caused the publication of the advertisements. While he professes repentance and begs for the Court’s indulgence, his contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer, he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months later, he caused the same advertisement to be published in the October 5, 2001 issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous affront on the Court’s authority. What adds to the gravity of respondent’s acts is that in advertising himself as a self-styled “Annulment of Marriage Specialist,” he wittingly or unwittingly erodes and undermines not only the stability but also the sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from the time of the filing of the case,[19] he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bonds, to do so. Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar.[20] Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now acceptable. [21] Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22] Such data must not be misleading and may include only a statement of the lawyer’s name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinctions; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented. The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession. The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. (emphasis and italics supplied) WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely.

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Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED.

PEDRO L. LINSANGAN,

A.C. No. 6672

Complainant, Present:

PUNO, C.J., Chairperson, CARPIO, - versus -

CORONA, LEONARDO-DE CASTRO and BERSAMIN, JJ.

ATTY. NICOMEDES TOLENTINO, Respondent.

Promulgated:

September 4, 2009

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

RE SO LUTI ON

CORONA, J.:

This is a complaint for disbarment[1] filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients[2] to transfer legal representation. Respondent promised them financial assistance[3] and expeditious collection on their claims.[4] To induce them to hire his

14

services, he persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit[5] of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000. Complainant also attached “respondent’s” calling card:[6]

Front

NICOMEDES TOLENTINO LAW OFFFICE CONSULTANCY & MARITIME SERVICES W/ FINANCIAL ASSISTANCE

Fe Marie L. Labiano Paralegal

1st MIJI Mansion, 2nd Flr. Rm. M-01

Tel: 362-7820

6th Ave., cor M.H. Del Pilar

Fax: (632) 362-7821

Grace Park, Caloocan City

Cel.: (0926) 2701719

Back SERVICES OFFERED: CONSULTATION AND ASSISTANCE TO OVERSEAS SEAMEN REPATRIATED DUE TO ACCIDENT, INJURY, ILLNESS, SICKNESS, DEATH AND INSURANCE BENEFIT CLAIMS ABROAD. (emphasis supplied)

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Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.[7]

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[8]

Based on testimonial and documentary evidence, the CBD, in its report and recommendation,[9] found that respondent had encroached on the professional practice of complainant, violating Rule 8.02[10] and other 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 Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides:

CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS. Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as 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 public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.[14]

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Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers. [15] Such actuation constitutes malpractice, a ground for disbarment.[16]

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

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE.

This rule proscribes “ambulance chasing” (the solicitation of almost any kind 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 and champerty.[18]

Complainant presented substantial evidence[19] (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits.

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s 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.

17

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s 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 Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office.[21] Respondent committed an unethical, predatory overstep into another’s 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 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.

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

The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected.[22] It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome.[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 client’s cause.[24]

As previously mentioned, any act of solicitation constitutes malpractice[25] which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its

18

findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct.[27] For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a)

lawyer’s name;

(b)

name of the law firm with which he is connected;

(c)

address;

(d)

telephone number and

(e)

special branch of law practiced.[28]

Labiano’s calling card contained the phrase “with financial assistance.” The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of 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 Labiano’s 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.

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SO ORDERED.

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

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Yours respectfully, (Sgd.) LUIS TAGORDA Attorney Notary Public. The facts being conceded, it is next in order to write down the applicable legal provisions. Section 21 of the Code of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the instigation of the Philippine Bar Association, said codal section was amended by Act No. 2828 by adding at the end thereof the following: "The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice." The statute as amended conforms in principle to the Canons of Professionals Ethics adopted by the American Bar Association in 1908 and by the Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics provide: 27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal communications or interview not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable. 28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. — It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to the employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof to the end that the offender may be disbarred. Common barratry consisting of frequently stirring up suits and quarrels between individuals was a crime at the common law, and one of the penalties for this offense when committed by an attorney was disbarment. Statutes intended to reach the same evil have been provided in a number of jurisdictions usually at the instance of the bar itself, and have been upheld as constitutional. The reason behind statutes of this type is not difficult to discover. The law is a profession and not a business. The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625; People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.) It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation of cases by lawyers. It is destructive of the honor of a great profession. It lowers the standards of that profession. It works against the confidence of the community in the integrity of the members of the bar. It results in needless litigation and in incenting to strife otherwise peacefully inclined citizens. The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be distinctly understood. Giving application of the law and the Canons of Ethics to the admitted facts, the respondent stands convicted of having solicited cases in defiance of the law and those canons. Accordingly, the only remaining duty of the court is to fix upon the action which should here be taken. The provincial fiscal of Isabela, with whom joined the representative of the Attorney-General in the oral presentation of the case,

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suggests that the respondent be only reprimanded. We think that our action should go further than this if only to reflect our attitude toward cases of this character of which unfortunately the respondent's is only one. The commission of offenses of this nature would amply justify permanent elimination from the bar. But as mitigating, circumstances working in favor of the respondent there are, first, his intimation that he was unaware of the impropriety of his acts, second, his youth and inexperience at the bar, and, third, his promise not to commit a similar mistake in the future. A modest period of suspension would seem to fit the case of the erring attorney. But it should be distinctly understood that this result is reached in view of the considerations which have influenced the court to the relatively lenient in this particular instance and should, therefore, not be taken as indicating that future convictions of practice of this kind will not be dealt with by disbarment. In view of all the circumstances of this case, the judgment of the court is that the respondent Luis B. Tagorda be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1, 1929, Bar Matter No. 553 June 17, 1993 MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC., respondent. R E SO L U T I O N

REGALADO, J.: Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law." The advertisements complained of by herein petitioner are as follows: Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am— 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAM DIVORCE. DON PARKINSON an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic. THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 5217251; 522-2041; 521-0767 It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted.

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

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Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered. It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not. B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy. It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is: Article 26. . . . Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law. It must not be forgotten, too, that the Family Code (defines) a marriage as follows: Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code. By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. Rule 1.02. — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed.

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Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar. xxx xxx xxx It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general. The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by non-members of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business. Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill. Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved. It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law. If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services. The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and By-laws must conform to each and every provision of the Code of Professional Responsibility and the Rules of Court. 5 2. Philippine Bar Association:

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xxx xxx xxx. Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certain Atty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39). It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6 3. Philippine Lawyers' Association: The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. The Legal Clinic is engaged in the practice of law; 2. Such practice is unauthorized; 3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and 4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court. As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws. Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience. Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7

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4. U.P. Women Lawyers' Circle: In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law. At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law. While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so. In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public from falling prey to those who advertise legal services without being qualified to offer such services. 8 A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name — The Legal Clinic, Inc. — does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc. Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9 5. Women Lawyer's Association of the Philippines: Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of gain which, as provided for under the above cited law, (are) illegal and against the Code of Professional Responsibility of lawyers in this country. Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the celebration of a secret marriage which is not only illegal but immoral in this country. While it is advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnized only by officers authorized to do so under the law. And to employ an agency for said purpose of contracting marriage is not necessary. No amount of reasoning that in the USA, Canada and other countries the trend is towards allowing lawyers to advertise their special skills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the use of advertisements such as are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit the illegal act may serve. The law has yet to be amended so that such act could become justifiable. We submit further that these advertisements that seem to project that secret marriages and divorce are possible in this

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country for a fee, when in fact it is not so, are highly reprehensible. It would encourage people to consult this clinic about how they could go about having a secret marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It is also against good morals and is deceitful because it falsely represents to the public to be able to do that which by our laws cannot be done (and) by our Code of Morals should not be done. In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify permanent elimination from the Bar. 10 6. Federacion Internacional de Abogados: xxx xxx xxx 1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law does not necessarily make respondent guilty of unlawful practice of law. . . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law — accurate or inaccurate — moulds our conduct not only when we are acting for ourselves, but when we are serving others. Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law. But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or information, and the legal question is subordinate and incidental to a major non-legal problem. It is largely a matter of degree and of custom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff.

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The handling of industrial relations is growing into a recognized profession for which appropriate courses are offered by our leading universities. The court should be very cautious about declaring [that] a widespread, well-established method of conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by the graduates in their business. In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I can imagine defendant being engaged primarily to advise as to the law defining his client's obligations to his employees, to guide his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees' wills. Another branch of defendant's work is the representations of the employer in the adjustment of grievances and in collective bargaining, with or without a mediator. This is not per se the practice of law. Anyone may use an agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the person appointed is free to accept the employment whether or not he is a member of the bar. Here, however, there may be an exception where the business turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers. But if the value of the land depends on a disputed right-of-way and the principal role of the negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy between an employer and his men grows from differing interpretations of a contract, or of a statute, it is quite likely that defendant should not handle it. But I need not reach a definite conclusion here, since the situation is not presented by the proofs. Defendant also appears to represent the employer before administrative agencies of the federal government, especially before trial examiners of the National Labor Relations Board. An agency of the federal government, acting by virtue of an authority granted by the Congress, may regulate the representation of parties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation before the agency by one whom the agency admits. The rules of the National Labor Relations Board give to a party the right to appear in person, or by counsel, or by other representative. Rules and Regulations, September 11th, 1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a lawyer. In this phase of his work, defendant may lawfully do whatever the Labor Board allows, even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to Paralegalism [1974], at pp. 154-156.). 1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may involve knowledge of the law) is not engaged in the practice of law provided that: (a) The legal question is subordinate and incidental to a major non-legal problem;. (b) The services performed are not customarily reserved to members of the bar; . (c) No separate fee is charged for the legal advice or information. All these must be considered in relation to the work for any particular client as a whole. 1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional Responsibility succintly states the

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rule of conduct: Rule 15.08 — A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. 1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A" Petition). Services on routine, straightforward marriages, like securing a marriage license, and making arrangements with a priest or a judge, may not constitute practice of law. However, if the problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the unauthorized practice of law. 1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials may not constitute of law. The business is similar to that of a bookstore where the customer buys materials on the subject and determines on the subject and determines by himself what courses of action to take. It is not entirely improbable, however, that aside from purely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice of law. It cannot be claimed that the publication of a legal text which publication of a legal text which purports to say what the law is amount to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE — THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Similarly the defendant's publication does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person in a particular situation — in their publication and sale of the kits, such publication and sale did not constitutes the unlawful practice of law . . . . There being no legal impediment under the statute to the sale of the kit, there was no proper basis for the injunction against defendant maintaining an office for the purpose of selling to persons seeking a divorce, separation, annulment or separation agreement any printed material or writings relating to matrimonial law or the prohibition in the memorandum of modification of the judgment against defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding that for the change of $75 or $100 for the kit, the defendant gave legal advice in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of necessary documents (The injunction therefore sought to) enjoin conduct constituting the practice of law, particularly with reference to the giving of advice and counsel by the defendant relating to specific problems of particular individuals in connection with a divorce, separation, annulment of separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.). 1.12. Respondent, of course, states that its services are "strictly non-diagnostic, non-advisory. "It is not controverted, however, that if the services "involve giving legal advice or counselling," such would constitute practice of law

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(Comment, par. 6.2). It is in this light that FIDA submits that a factual inquiry may be necessary for the judicious disposition of this case. xxx xxx xxx 2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be secret. 2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11 A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account. Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12 The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13 In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14 When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to determine whether certain acts constitute "practice of law," thus: Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when he: . . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in

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the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852). This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters or estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139, 144). The practice of law, therefore, covers a wide range of activities in and out of court. Applying the aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of law." The contention of respondent that it merely offers legal support services can neither be seriously considered nor sustained. Said proposition is belied by respondent's own description of the services it has been offering, to wit: Legal support services basically consists of giving ready information by trained paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing, storage, transmission and reproduction of information and communication, such as computerized legal research; encoding and reproduction of documents and pleadings prepared by laymen or lawyers; document search; evidence gathering; locating parties or witnesses to a case; fact finding investigations; and assistance to laymen in need of basic institutional services from government or non-government agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20 While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule.

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What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily have to explain to the client the intricacies of the law and advise him or her on the proper course of action to be taken as may be provided for by said law. That is what its advertisements represent and for the which services it will consequently charge and be paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact that respondent corporation does not represent clients in court since law practice, as the weight of authority holds, is not limited merely giving legal advice, contract drafting and so forth. The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where an insight into the structure, main purpose and operations of respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales: This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation, and family law. These specialist are backed up by a battery of paralegals, counsellors and attorneys. Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford the services of the big law firms. The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the problem. That's what doctors do also. They ask you how you contracted what's bothering you, they take your temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one of our specialists. There are cases which do not, in medical terms, require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea," explains Atty. Nogales. Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of property, we would refer you to a specialist in taxation. There would be real estate taxes and arrears which would need to be put in order, and your relative is even taxed by the state for the right to transfer her property, and only a specialist in taxation would be properly trained to deal with the problem. Now, if there were other heirs contesting your rich relatives will, then you would need a litigator, who knows how to arrange the problem for presentation in court, and gather evidence to support the case. 21 That fact that the corporation employs paralegals to carry out its services is not controlling. What is important is that it is engaged in the practice of law by virtue of the nature of the services it renders which thereby brings it within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22 It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23

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Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24 The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27 We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done. Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines. 28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30 Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or statutory authority, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32 Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like selflaudation. 36 The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without violating the ethics of

34

his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation. The pertinent part of the decision therein reads: It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the money-changers of old defiled the temple of Jehovah. "The most worthy and effective advertisement possible, even for a young lawyer, . . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.). We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. 40 Of course, not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. 41 The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. "Such data must not be misleading and may include only a statement of the lawyer's name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented." 42 The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43 The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. 44 Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions.

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The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers: Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14% Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession. In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly determined, albeit in a different proceeding and forum, since, under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition by respondent is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, 50 after due ascertainment of the factual background and basis for the grant of respondent's corporate charter, in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor General for such action as may be necessary under the circumstances. ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting, directly or indirectly, any activity, operation or transaction proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith. B.M. No. 850

August 22, 2000

MANDATORY CONTINUING LEGAL EDUCATION (MCLE) ADOPTING THE RULES ON MANDATORY CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE INTEGRATED

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BAR OF THE PHILIPPINES EN BANC RESOLUTION Considering the Rules on Mandatory Continuing Legal Education (MCLE) for members of the Integrated Bar of the Philippines (IBP), recommended by the IBP, endorsed by the Philippine Judicial Academy, and reviewed and passed upon by the Supreme Court Committee on Legal Education, the Court hereby resolves to adopt, as it hereby adopts, the following rules for proper implementation: RULE 1 PURPOSE Section 1. Purpose of the MCLE Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. RULE 2 MANDATORY CONTINUING LEGAL EDUCATION Section 1. Constitution of the MCLE Committee Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted in accordance with these Rules. Section 2. Requirements of completion of MCLE Members of the IBP not exempt under Rule 7 shall complete, every three (3) years, at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours: (a) At least six (6) hours shall be devoted to legal ethics. (b) At least (4) hours shall be devoted to trial and pretrial skills. (c) At least five (5) hours shall be devoted to alternative dispute resolution. (d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence. (e) At least four (4) hours shall be devoted to legal writing and oral advocacy. (f) At least two (2) hours shall be devoted to international law and international conventions. (g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee. RULE 3 COMPLIANCE PERIOD Section 1. Initial compliance period The initial compliance period shall begin not later than three (3) months from the constitution of the MCLE Committee. Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period. Section 2. Compliance Group 1. Members in the National Capital Region (NCR) or Metro Manila shall be permanently assigned to Compliance Group 1. Section 3. Compliance Group 2. Members in Luzon outside NCR shall be permanently assigned to Compliance Group 2.

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Section 4. Compliance Group 3. Members in Visayas and Mindanao shall be permanently assigned to Compliance Group 3. Section 5. Compliance period for members admitted or readmitted after establishment of the program. Members admitted or readmitted to the Bar after the establishment of the program shall be permanently assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission. The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group. (a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance. (b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number. RULE 4 COMPUTATION OF CREDIT UNITS Section 1. Guidelines The following are the guidelines for computation of credit units (CU): PROGRAMS CREDIT UNITS SUPPORTING DOCUMENTS 1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND OTHER RELATED RULES 1.1 PARTICIPANT 1 CU PER HOUR CERTIFICATE OF ATTENDANCE WITH NUMBER OF HOURS 1.2 LECTURER 5 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S CERTIFICATION 1.3 RESOURCE 3 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S SPEAKER CERTIFICATION 1.4 ASSIGNED 2 CU PER HOUR CERTIFICATION FROM SPONSORING PENALIST/ ORGANIZATION REACTOR/COMMENTATOR 1.5 MODERATOR/ 2 CU PER ORGANIZATION FACILITATOR

HOUR

CERTIFICATION

FROM

SPONSORING

COORDINATOR/

2. AUTHORSHIP, EDITING AND REVIEW 2.1 RESEARCH/ 5-10 CREDIT UNITS DULY CERTIFIED/PUBLISHED INNOVATIVE TECHNICAL REPORT/PAPER PROGRAM/CREATIVE PROJECT 2.2 BOOK 50-100 PP 101+ 2 AUTHORS 3 OR MORE 5-6 CU 7-11 CU

PUBLISHED 10-12

BOOK

SINGLE CU

AUTHOR

12-16 CU 13-16

17-20

CU CU

2.3 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK WITH PROOF AUTHORSHIP AS EDITOR CATEGORY 2.4 2

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LEGAL ARTICLE 5-10 AUTHORS

PP 11+

PUBLISHED ARTICLE SINGLE AUTHOR 4 CU 6

6

CU

8

CU CU

3 OR MORE 2 CU 4 CU 2.5 LEGAL 3-6 CU PER ISSUE PUBLISHED NEWSLETTER/JOURNAL NEWSLETTER/LAW JOURNAL EDITOR 3. PROFESSIONAL 6 CU PER CHAIR CERTIFICATION OF LAW DEAN CHAIR/BAR 1 CU PER LECTURE OR BAR REVIEW DIRECTOR REVIEW/ HOUR LECTURE/LAW TEACHING Section 2. Limitation on certain credit units In numbers 2 and 3 of the guidelines in the preceding Section, the total maximum credit units shall not exceed twenty (20) hours per three (3) years. RULE 5 CATEGORIES OF CREDIT Section 1. Classes of credits The credits are either participatory or non-participatory. Section 2. Claim for participatory credit Participatory credit may be claimed for: (a) Attending approved education activities like seminars, conferences, symposia, in-house education programs, workshops, dialogues or round table discussions. (b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. (c) Teaching in a law school or lecturing in a bar review class. Section 3. Claim for non-participatory credit Non-participatory credit may be claimed per compliance period for: (a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member's practice or employment. (b) Editing a law book, law journal or legal newsletter. RULE 6 COMPUTATION OF CREDIT HOURS Section 1. Computation of credit hours Credit hours are computed based on actual time spent in an activity (actual instruction or speaking time), in hours to the nearest onequarter hour. RULE 7 EXEMPTIONS Section 1. Parties exempted from the MCLE The following members of the Bar are exempt from the MCLE requirement: (a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments; (b) Senators and Members of the House of Representatives; (c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent

39

members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education; (d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; (e) The Solicitor General and the Assistant Solicitor General; (f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; (g) The Chairmen and Members of the Constitutional Commissions; (h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; (i) Heads of government agencies exercising quasi-judicial functions; (j) Incumbent deans, bar reviews and professors of law who have teaching experience for at least 10 years accredited law schools; (k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy; and (l) Governors and Mayors. Section 2. Other parties exempted from the MCLE The following Members of the Bar are likewise exempt: (a) Those who are not in law practice, private or public. (b) Those who have retired from law practice with the approval of the IBP Board of Governors. Section 3. Good cause for exemption from or modification of requirement A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee. Section 4. Change of status The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group. Section 5. Proof of exemption Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. RULE 8 STANDARDS FOR APPROVAL OF EDUCATION ACTIVITIES Section 1. Approval of MCLE program Subject to the rules as may be adopted by the MCLE Committee, continuing legal education program may be granted approval in either of two (2) ways: (1) the provider of the activity is an approved provider and certifies that the activity meets the criteria of Section 3 of this Rules; and (2) the provider is specially mandated by law to provide continuing legal education. Section 2. Standards for all education activities All continuing legal education activities must meet the following standards: (a) The activity shall have significant current intellectual or practical content.

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(b) The activity shall constitute an organized program of learning related to legal subjects and the legal profession, including cross profession activities (e.g., accounting-tax or medical-legal) that enhance legal skills or the ability to practice law, as well as subjects in legal writing and oral advocacy. (c) The activity shall be conducted by a provider with adequate professional experience. (d) Where the activity is more than one (1) hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered. (e) In-house education activities must be scheduled at a time and location so as to be free from interruption like telephone calls and other distractions. RULE 9 APPROVAL OF PROVIDERS Section 1. Approval of providers Approval of providers shall be done by the MCLE Committee. Section 2. Requirements for approval of providers Any persons or group may be approved as a provider for a term of two (2) years, which may be renewed, upon written application. All providers of continuing legal education activities, including in-house providers, are eligible to be approved providers. Application for approval shall: (a) Be submitted on a form provided by the IBP; (b) Contain all information requested on the form; (c) Be accompanied by the approval fee; Section 3. Requirements of all providers All approved providers shall agree to the following: (a) An official record verifying the attendance at the activity shall be maintained by the provider for at least four (4) years after the completion date. The provider shall include the member on the official record of attendance only if the member's signature was obtained at the time of attendance at the activity. The official record of attendance shall contain the member's name and number in the Roll of Attorneys and shall identify the time, date, location, subject matter, and length of the education activity. A copy of such record shall be furnished the IBP. (b) The provider shall certify that: (1) This activity has been approved for MCLE by the IBP in the amount of ________ hours of which hours will apply in (legal ethics, etc.), as appropriate to the content of the activity; (2) The activity conforms to the standards for approved education activities prescribed by these Rules and such regulations as may be prescribed by the IBP pertaining to MCLE. (c) The provider shall issue a record or certificate to all participants identifying the time, date, location, subject matter and length of the activity. (d) The provider shall allow in-person observation of all approved continuing legal education activities by members of the IBP Board of Governors, the MCLE Committee, or designees of the Committee and IBP staff for purposes of monitoring compliance with these Rules. (e) The provider shall indicate in promotional materials, the nature of the activity, the time devoted to each devoted to each topic and identify of the instructors. The provider shall make available to each participant a copy of IBP-approved Education Activity Evaluation Form.

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(f) The provider shall maintain the completed Education Activity Evaluation Forms for a period of not less than one (1) year after the activity, copy furnished the IBP. (g) Any person or group who conducts an unauthorized activity under this program or issues a spurious certificate in violation of these Rules shall be subject to appropriate sanctions. Section 4. Renewal of provider approval The approval of a provider may be renewed every two (2) years. It may be denied if the provider fails to comply with any of the requirements of these Rules or fails to provide satisfactory education activities for the preceding period. Section 5. Revocation of provider approval The approval of any provider referred to in Rule 9 may be revoked by a majority vote of the IBP Board of Governors, upon recommendation of the MCLE Committee, after notice and hearing and for good cause. RULE 10 ACTIVITY AND PROVIDER APPROVAL FEE Section 1. Payment of fees Application for approval of an education activity or as a provider requires payment of an appropriate fee. RULE 11 GENERAL COMPLIANCE PROCEDURES Section 1. Compliance card Each member shall secure from the MCLE Committee a Compliance Card before the end of his compliance period. He shall complete the card by attesting under oath that he has complied with the education requirement or that he is exempt, specifying the nature of the exemption. Such Compliance Card must be returned to the address indicated therein not later than the day after the end of the member's compliance period. Section 2. Member record keeping requirement Each member shall maintain sufficient record of compliance or exemption, copy furnished the MCLE Committee. The record required to be provided to the members by the provider pursuant to Section 3(c) of Rule 9 should be sufficient record of attendance at a participatory activity. A record of non-participatory activity shall also be maintained by the member, as referred to in Section 3 of Rule 5. RULE 12 NON-COMPLIANCE PROCEDURES Section 1. What constitutes non-compliance The following shall constitute non-compliance (a) Failure to complete the education requirement within the compliance period; (b) Failure to provide attestation of compliance or exemption; (c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; (d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of a non-compliance notice; (e) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements. Section 2. Non-compliance notice and 60-day period to attain compliance A member failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given sixty (60) days from

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the date of notification to explain the deficiency or otherwise show compliance with the requirements. Such notice shall contain, among other things, the following language in capital letters: YOUR FAILURE TO PROVIDE ADEQUATE JUSTIFICATION FOR NON-COMPLIANCE OR PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM THE DATE OF NOTICE), SHALL BE A CAUSE FOR LISTING AS A DELINQUENT MEMBER. The Member may use this period to attain the adequate number of credit hours for compliance. Credit hours earned during this period may only be counted toward compliance with the prior compliance period requirement unless hours in excess of the requirement are earned, in which case, the excess hours may be counted toward meeting the current compliance period requirement.lawphil.net RULE 13 CONSEQUENCES OF NON-COMPLIANCE Section 1. Non-compliance fee A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a non-compliance fee. Section 2. Listing as delinquent member Any member who fails to satisfactorily comply with Section 2 of Rule 12 shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A of the Rules of Court shall apply. RULE 14 REINSTATEMENT Section 1. Process The involuntary listing as a delinquent member shall be terminated when the member provides proof of compliance with the MCLE requirement, including payment of non-compliance fee. A member may attain the necessary credit hours to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit hours may not be counted toward meeting the current compliance period requirement. Credit hours attained during the period of non-compliance in excess of the number needed to satisfy the prior compliance period requirement may be counted toward meeting the current compliance period requirement.lawphil.net Section 2. Termination of delinquent listing administrative process The termination of listing as a delinquent member is administrative in nature but it shall be made with notice and hearing by the MCLE Committee. RULE 15 MANDATORY CONTINUING LEGAL EDUCATION COMMITTEE Section 1. Composition The MCLE Committee shall be composed of five (5) members, namely: a retired Justice of the Supreme Court, as Chair, and four (4) members, respectively, nominated by the IBP, the Philippine Judicial Academy, a law center designated by the Supreme Court and associations of law schools and/or law professors. The members of the Committee shall be of proven probity and integrity. They shall be appointed by the Supreme Court for a term of three (3) years and shall receive such compensation as may be determined by the Court. Section 2. Duty of the Committee The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval by the Supreme Court. It shall, in consultation with the IBP Board of Governors, prescribe a schedule of MCLE fees with the approval of the Supreme Court. Section 3. Staff of the IBP The IBP shall employ such staff as may be necessary to perform the record-keeping, auditing, reporting, approval and other necessary

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functions. Section 4. Submission of annual budget The IBP shall submit to the Supreme Court an annual budget for a subsidy to establish, operate and maintain the MCLE Program. This resolution shall take effect in October 2000, following its publication in two (2) newspaper of general circulation in the Philippines. Adopted this 22nd day of August, 2000. SPOUSES DAVID and

A.C. No. 6353

MARISA WILLIAMS, Complainants, Present: PANGANIBAN, C.J., Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ.

- versus -

ATTY. RUDY T. ENRIQUEZ,

Promulgated:

Respondent. February 27, 2006 x----------------------------------- ---------------x RESOLUTION

CALLEJO, SR., J.:

Atty. Rudy T. Enriquez stands charged with “unlawful, dishonest, immoral and deceitful acts in violation of the Code of Professional Responsibility and the Canons of Professional Ethics, and with conduct unbecoming an attorney.” The charges are contained in the Joint Complaint-Affidavit for Disbarment[1] filed by the spouses David W. Williams and Marisa B. Williams.

It appears that respondent is the counsel of record of the plaintiffs in Civil Case No. 13443[2] pending before the Regional Trial Court, Branch 33, Dumaguete City where complainants are the defendants. According to the complainant-spouses, Marisa Williams bought the lot subject of the controversy. A Transfer Certificate of Title (TCT) was then issued in her favor, stating that she is “Filipino, married to David W. Williams, an American citizen.”[3] On January 8, 2004, respondent charged her with falsification of public documents before the Office of the City Prosecutor of Dumaguete City. The complaint was docketed as I.S. No. 2004-34.[4]

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The spouses Williams further alleged, thus:

21. That, in malicious violation of the rules governing the practice of law, Attorney Rudy T. Enriquez cited outdated material in his complaint-affidavit (Annex A-1) and in his comments to counter-affidavit (Annex A-2). He then knowingly applied this stale law in a perverse fashion to argue that Marisa Batacan Williams automatically lost her Filipino citizenship when she married an American, and was thus prohibited to own land in the Philippines, thereby making her guilty of falsification in the Deed she executed to buy property in Negros Oriental. 2.2. That in paragraph #1 of her counter-affidavit (Annex A-2) Marisa cites Article IV, Section 4 of the 1987 Constitution, which provides that she would not lose her citizenship when she married an American unless she renounced it in a specific act. 2.3 That, in reply, Attorney Enriquez, quotes more outdated law, declaring that her “act of marrying” her husband was equivalent to renouncing her citizenship. He also doggedly attempts to show that the 1987 Constitution supports his position, not Marisa’s (Annex A-4).[5]

Complainants pointed out that the respondent is a retired judge, who knows that the false charge (that Marisa Williams is an American) “will not prevail in the end.”[6]

In his “Comments by Way of Motion to Dismiss,”[7] respondent enumerated matters which to his mind were evidence of the acts of falsification of complainant Marisa Williams. He insisted that the complaint for disbarment was a mere tactic to divert attention from the criminal charges against the complainants, and that the charges against him were bereft of any factual basis.

On December 1, 2004, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. [8] Forthwith, the IBP Commission on Bar Discipline scheduled the case for mandatory conference/hearing. However, only the respondent appeared. The parties were then directed to submit their verified position papers.

In their Position Paper, complainants claimed that respondent had maliciously and knowingly filed fabricated cases against them and that his acts were forms of attempted extortion. They also adopted their joint complaint-affidavit by way of incorporation, along with their other pleadings.

For his part, respondent maintained that complainant Marisa Williams was no longer a citizen of the Republic of the Philippines as a result of her marriage to David Williams.

In her Report and Recommendation dated June 10, 1995, Commissioner Rebecca Villanueva-Maala ruled that respondent was guilty of gross ignorance of the law and should be suspended for six (6) months. The IBP Commission on Bar Discipline adopted the foregoing recommendation in its Resolution No. XVII-2005-114 dated October 22, 2005, with the modification that respondent be “reprimanded,

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with a warning and advice to study each and every opinion he may give to his clients.”

The Court agrees that respondent is administratively liable for his actuations. As found by the Investigating Commissioner:

There is no evidence shown by respondent that complainant Marisa Bacatan-Williams has renounced her Filipino citizenship except her Certificate of Marriage, which does not show that she has automatically acquired her husband’s citizenship upon her marriage to him. The cases cited by respondent are not applicable in this case as it is clear that they refer to aliens acquiring lands in the Philippines.

The Bar has been integrated for the attainment of the following objectives: (a) elevate the standards of the legal profession, (b) improve the administration of justice, and (c) to enable the bar to discharge its public responsibility more effectively (In re: Integration of the Bar of the Philippines, 49 SCRA 22). In line with these objectives of the Integrated Bar, lawyers must keep themselves abreast of legal developments. To do this, the lawyer must walk with the dynamic movements of the law and jurisprudence. He must acquaint himself at least with the newly promulgated laws, the recent decisions of the Supreme Court and of the significant decisions of the Court of Appeals. There are other executive orders, administrative circulars, regulations and other rules promulgated by other competent authorities engaged in the administration of justice. The lawyer’s life is one of continuous and laborious study, otherwise, his skill and knowledge of the law and related disciplines will lag behind and become obscure due to obsoleteness (Canon 5, Code of Professional Responsibility.)[9]

As pointed out by the Investigating Commissioner, Canon 5 of the Code of Professional Responsibility requires that a lawyer be updated in the latest laws and jurisprudence.[10] Indeed, when the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law.[11] As a retired judge, respondent should have known that it is his duty to keep himself wellinformed of the latest rulings of the Court on the issues and legal problems confronting a client.[12] In this case, the law he apparently misconstrued is no less than the Constitution,[13] the most basic law of the land.[14] Implicit in a lawyer’s mandate to protect a client’s interest to the best of his/her ability and with utmost diligence is the duty to keep abreast of the law and legal developments, and participate in continuing legal education programs.[15] Thus, in championing the interest of clients and defending cases, a lawyer must not only be guided by the strict standards imposed by the lawyer’s oath, but should likewise espouse legally sound arguments for clients, lest the latter’s cause be dismissed on a technical ground.[16] Ignorance encompasses both substantive and procedural laws.[17]

We find too harsh the recommended penalty of the Investigating Commissioner. It must be stressed that the power to disbar or suspend must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of a lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty. [18] Pursuant to the IBP Commission on Bar Discipline’s Guidelines for Imposing Lawyer Sanctions,[19] and considering further that this is respondent’s first infraction, we find that the penalty of reprimand as recommended by the IBP Commission on Bar Discipline, will suffice.

We likewise note that in their pleadings in this case, the parties repeatedly invoked their arguments in their pending cases below. Thus, we find it unnecessary to rule over such arguments, which have yet to be determined on the merits in the courts a quo.

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WHEREFORE, for gross ignorance of the law, Atty. Rudy T. Enriquez is REPRIMANDED and ADVISED to carefully study the opinions he may give to his clients. He is STERNLY WARNED that a repetition of a similar act shall be dealt with more severely.

SO ORDERED. A.C. No, 6854 April 25, 2007 [Formerly CBD Case No. 04-1380] JUAN DULALIA, JR., Complainant, vs. ATTY. PABLO C. CRUZ, Respondent. DECISION CARPIO MORALES, J.: Atty. Pablo C. Cruz, Municipal Legal Officer of Meycauayan, Bulacan (respondent), is charged by Juan Dulalia, Jr. (complainant) of violation Rules 1.01,1 6.02,2 and 7.033 of the Code of Professional Responsibility. The facts which gave rise to the filing of the present complaint are as follows: Complainant’s wife Susan Soriano Dulalia filed an application for building permit for the construction of a warehouse. Despite compliance with all the requirements for the purpose, she failed to secure a permit, she attributing the same to the opposition of respondents who wrote a September 13, 2004 letter to Carlos J. Abacan, Municipal Engineer and concurrent Building Official of Meycauayan, reading as follows, quoted verbatim: xxxx This is in behalf of the undersigned himself and his family, Gregoria F. Soriano, Spouses David Perez and Minerva Soriano-Perez and Family and Mr. and Mrs. Jessie de Leon and family, his relatives and neighbors. It has been more than a month ago already that the construction of the building of the abovenamed person has started and that the undersigned and his family, and those other families mentioned above are respective owners of the residential houses adjoining that of the high-rise building under construction of the said Mrs. Soriano-Dulalia. There is no need to mention the unbearable nuisances that it creates and its adverse effects to the undersigned and his above referred to clients particularly the imminent danger and damage to their properties, health and safety. It was represented that the intended construction of the building would only be a regular and with standard height building and not a high rise one but an inspection of the same would show otherwise. Note that its accessory foundation already occupies portion of the vacant airspace of the undersigned’s residential house in particular, which readily poses danger to their residential house and life. To avert the occurrence of the above danger and damage to property, loss of life and for the protection of the safety of all the people concerned, they are immediately requesting for your appropriate action on the matter please at your earliest opportune time. Being your co-municipal official in the Municipal Government of Meycauayan who is the Chief Legal Counsel of its Legal Department, and by virtue of Sub par. (4), Paragraph (b), Section 481 of the Local Government Code of 1991, he is inquiring if there was already full compliance on the part of the owner of the Building under construction with the requirements provided for in Sections 301, 302 and 308 of the National Building Code and on the part of your good office, your compliance with the provisions of Sections 303 and 304 of the same foregoing cited Building Code. Please be reminded of the adverse and unfavorable legal effect of the non-compliance with said Sections 301, 302, 303 and 304 of the National Building Code by all the parties concerned. (Which are not confined only to penalties provided in Sections 211 and 212 thereof.) x x x x4 (Emphasis and underscoring partly in the original, partly supplied) By complainant’s claim, respondent opposed the application for building permit because of a personal grudge against his wife Susan who

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objected to respondent’s marrying her first cousin Imelda Soriano, respondent’s marriage with Carolina Agaton being still subsisting. 5 To the complaint, complainant attached a copy of his Complaint Affidavit 6 he filed against respondent before the Office of the Ombudsman for violation of Section 3 (e) 7 of Republic Act No. 3019, as amended (The Anti-Graft and Corrupt Practices Act) and Section 4 (a) and (c)8 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). 9 By Report and Recommendation dated May 6, 2005, 10 the IBP Commission on Bar Discipline, through Commissioner Rebecca Villanueva-Maala, recommended the dismissal of the complaint in light of the following findings: The complaint dealt with mainly on the issue that respondent allegedly opposes the application of his wife for a building permit for the construction of their commercial building. One of the reason[s] stated by the complainant was that his wife was not in favor of Imelda’s relationship with respondent who is a married man. And the other reason is that respondent was not authorized to represent his neighbors in opposing the construction of his building. From the facts and evidence presented, we find respondent to have satisfactorily answered all the charges and accusations of complainant . We find no clear, convincing and strong evidence to warrant the disbarment or suspension of respondent. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved. The burden of proof rests upon the complainant to overcome the presumption and establish his charges by a clear preponderance of evidence. In the absence of the required evidence, the presumption of innocence on the part of the lawyer continues and the complaint against him should be dismissed (In re De Guzman, 55 SCRA 1239; Balduman vs. Luspo, 64 SCRA 74; Agbayani vs. Agtang, 73 SCRA 283). x x x x.11 (Underscoring supplied) By Resolution of June 25, 2005, 12 the Board of Governors of the IBP adopted and approved the Report and Recommendation of Commissioner Villanueva-Maala. Hence, the present Petition for Review13 filed by complainant. Complainant maintains that respondent violated Rule 1.01 when he contracted a second marriage with Imelda Soriano on September 17, 1989 while his marriage with Carolina Agaton, which was solemnized on December 17, 1967, is still subsisting. Complainant further maintains that respondent used his influence as the Municipal Legal Officer of Meycauayan to oppose his wife’s application for building permit, in violation of Rule 6.02 of the Code of Professional Responsibility. And for engaging in the practice of law while serving as the Municipal Legal Officer of Meycauayan, complainant maintains that respondent violated Rule 7.03. To his Comment,14 respondent attached the July 29, 2005 15 Joint Resolution of the Office of the Deputy Ombudsman for Luzon dismissing complainant’s complaint for violation of Sec. 3 (e) of RA 3019 and Section 4 (a) and (c) of RA 6713, the pertinent portion of which joint resolution reads: x x x A perusal of the questioned letter dated September 13, 2004 of herein respondent Atty. Pablo Cruz addressed to the Building official appears to be not an opposition for the issuance of complainant’s building permit , but rather to redress a wrong and an inquiry as to whether compliance with the requirements for the construction of an edifice has been met. In fact, the Office of the Building Official after conducting an investigation found out that there was [a] violation of the Building Code for constructing without a building permit committed by herein complainant’s wife Susan Dulalia. Hence, a Work Stoppage Order was issued. Records disclose fu[r]ther [that] it was only after the said violation had been committed that Susan Dulalia applied for a building permit. As correctly pointed out by respondent, the same is being processed pending approval by the Building Official and not of the Municipal Zoning Administrator as alleged by complainant. Anent the allegation that respondent was engaged in the private practice of his law profession despite being employed in the government as Municipal Legal Officer of Meycauayan, Bulacan, the undersigned has taken into consideration the explanation and clarification made by the respondent to be justifiable and meritorious. Aside from the bare allegations of herein complainant, there is no sufficient evidence to substantiate the complaints against the respondent. 16 (Underscoring supplied) After a review of the record of the case, this Court finds the dismissal of the charges of violating Rules 6.02 and 7.03 in order.

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Indeed, complaint failed to prove that respondent used his position as Municipal Legal Officer to advance his own personal interest against complainant and his wife. As for respondent’s September 13, 2004 letter, there is nothing to show that he opposed the application for building permit. He just inquired whether complainant’s wife fully complied with the requirements provided for by the National Building Code, on top of expressing his concerns about "the danger and damages to their properties, health and safety" occasioned by the construction of the building. Besides, as reflected above, the application for building permit was filed on September 28, 2004, 17 whereas the questioned letter of respondent was priorly written and received on September 13, 2004 by the Municipal Engineer/ Building Official, who on the same day, ordered an inspection and issued a Cease and Desist Order/Notice stating that "[f]ailure to comply with th[e] notice shall cause this office to instate proper legal action against you."18 Furthermore, as the Certification dated April 4, 2005 19 from the Office of the Municipal Engineer showed, complainant’s wife eventually withdrew the application as she had not yet secured clearances from the Municipal Zoning Administrator and from the barangay where the building was to be constructed. Respecting complainant’s charge that respondent engaged in an unauthorized private practice of law while he was the Municipal Legal Officer of Meycauayan, a position coterminous to that of the appointing authority, suffice it to state that respondent proffered proof that his private practice is not prohibited.20 It is, however, with respect to respondent’s admitted contracting of a second marriage while his first marriage is still subsisting that this Court finds respondent liable, for violation of Rule 1.01 of the Code of Professional Responsibility. Respondent married Imelda Soriano on September 17, 1989 at the Clark County, Nevada, USA, 21 when the Family Code of the Philippines had already taken effect. 22 He invokes good faith, however, he claiming to have had the impression that the applicable provision at the time was Article 83 of the Civil Code. 23 For while Article 256 of the Family Code provides that the Code shall have retroactive application, there is a qualification thereunder that it should not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Immoral conduct which is proscribed under Rule 1.01 of the Code of Professional Responsibility, as opposed to grossly immoral conduct, connotes "conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community."24 Gross immoral conduct on the other hand must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.25 In St. Louis University Laboratory High School v. De la Cruz, 26 this Court declared that the therein respondent’s act of contracting a second marriage while the first marriage was still subsisting constituted immoral conduct, for which he was suspended for two years after the mitigating following circumstances were considered: a. After his first failed marriage and prior to his second marriage or for a period of almost seven (7) years, he has not been romantically involved with any woman; b. His second marriage was a show of his noble intentions and total love for his wife, whom he described to be very intelligent person; c. He never absconded from his obligations to support his wife and child; d. He never disclaimed paternity over the child and husbandry (sic) with relation to his wife; e. After the annulment of his second marriage, they have parted ways when the mother and child went to Australia; f. Since then up to now, respondent remained celibate. 27 In respondent’s case, he being out of the country since 1986, he can be given the benefit of the doubt on his claim that Article 83 of the Civil Code was the applicable provision when he contracted the second marriage abroad. From 1985 when allegedly his first wife abandoned him, an allegation which was not refuted, until his marriage in 1989 with Imelda Soriano, there is no showing that he was

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romantically involved with any woman. And, it is undisputed that his first wife has remained an absentee even during the pendency of this case. As noted above, respondent did not deny he contracted marriage with Imelda Soriano. The community in which they have been living in fact elected him and served as President of the IBP-Bulacan Chapter from 1997-1999 and has been handling free legal aid cases. Respondent’s misimpression that it was the Civil Code provisions which applied at the time he contracted his second marriage and the seemingly unmindful attitude of his residential community towards his second marriage notwithstanding, respondent may not go scotfree. As early as 1957, this Court has frowned on the act of contracting a second marriage while the first marriage was still in place as being contrary to honesty, justice, decency and morality. 28 In another vein, respondent violated Canon 5 of the Code of Professional Responsibility which provides: CANON 5 – A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence. Respondent’s claim that he was not aware that the Family Code already took effect on August 3, 1988 as he was in the United States from 1986 and stayed there until he came back to the Philippines together with his second wife on October 9, 1990 does not lie, as "ignorance of the law excuses no one from compliance therewith." Apropos is this Court’s pronouncement in Santiago v. Rafanan:29 It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes. They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence. It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.30 (Emphasis and underscoring supplied) WHEREFORE, respondent Atty. Pablo C. Cruz is guilty of violating Rule 1.01 and Canon 5 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for one year. He is WARNED that a similar infraction will be dealt with more severely. Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts throughout the country. SO ORDERED. A.C. No. 4517

September 11, 2006

AQUILINO Q. PIMENTEL, JR., complainant, vs. ATTYS. VITALIANO C. FABROS and PACIFICO S. PAAS, respondents. RESOLUTION CORONA, J.: A complaint for disbarment was filed against Attys. Vitaliano C. Fabros and Pacifico S. Paas by Senator Aquilino Q. Pimentel Jr. for "unlawful, dishonest, immoral or deceitful conduct" in relation to the discharge of their duties as chairman and vice-chairman, respectively, of the provincial board of canvassers, Province of Isabela (PBC-Isabela) in the 1995 elections. Complainant alleged that: xxx

xxx

xxx

8. Among the duties of the [PBC-Isabela] was to canvass the results of the elections from the various municipalities and component cities of the Province of Isabela and submit the Provincial Certificate of Canvass to the Commission on Elections

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(COMELEC). This Provincial Certificate of Canvass was to be submitted to the COMELEC together with its supporting Statement of Votes per Municipality for the Province of Isabela, and as required by law, these documents were prepared under the control and supervision of the [PBC-Isabela] of which herein respondents are officials. 9. In fact, with respect to the Provincial Certificate of Canvass of Isabela, respondents were required to certify under oath that they duly canvassed the votes cast for each candidate for Senator in the election held on May 8, 1995. And with respect to the Statement of Votes per Municipality, they were required to certify that each entry made is true and correct. xxx

xxx

xxx

11. It would appear, however, that the Statement of Votes per Municipality (annex "B") prepared and certified to be true and correct by herein respondents was actually a fraudulent statement which had been altered and which contain false and untrue entries. By comparing the said statements with the Municipal/City Certificates of Canvass of some of the municipalities and component cities for the Province of Isabela, it is clearly apparent that in nine (9) municipalities and one (1) city of the said province, the votes of candidates Enrile, Honasan and Mitra were padded and increased by some 27,755, 10,000 and 7,000, respectively…. xxx

xxx

xxx

13. The anomalous, irregular and illegal padding of the votes in the Provincial Certificate of Canvass for the Province of Isabela cannot be attributed [to] mere computation or recording error, but was ostensibly the result of a premeditated scheme knowingly implemented by herein respondents. 14. The respondents, chairman and vice chairman of the [PBC-Isabela], willfully, feloniously, unethically and in wanton and reckless regard of the duties and responsibilities reposed upon them by virtue of their official positions, signed the Provincial Certificate of Canvass (annex "A") and the Statement of Votes per Municipality (annex "B") for the Province of Isabela, well aware that the same contained false statements which has altered the results of the senatorial elections in said province. Their submission of these falsified documents to the COMELEC is an act constituting a gross violation of the Omnibus Election Code and existing penal laws, and a serious breach of public trust and of their oaths as duly licensed members of the Philippine Bar. 15. For under section 27 of R.A. 6646 it is provided that any member of the board of canvasser who tampers, increases, or decreases the votes received by a candidate in any election shall be guilty of [an] election offense. 16. And, under provisions of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. xxx xxx xxx.1 (Emphasis ours) In his comment, respondent Fabros reproduced the counter-affidavit he filed with the COMELEC-Manila since the issues raised in the complaint were identical to those brought before the Commission. He denied committing any act which violated his oath as a lawyer. Specifically, he stated that: (1) he neither consented nor allowed any member of PBC-Isabela to increase the votes of Senators Enrile, Honasan and Mitra; (2) the canvassing was done in public view; (3) he faithfully read the votes as reflected in the municipal/city certificates of canvass, repeating the same twice or thrice and (4) the canvassing proceeded in an orderly manner after counsels and watchers were given the chance to examine the certificates of canvass. 2 Aside from substantially echoing the statements of Fabros, respondent Paas alleged that he was in no position to manipulate the figures since Fabros did the reading throughout the canvass, while he attended to maintaining the integrity of the envelopes containing the statement of votes. Both attributed to human fatigue or simple negligence any error in the figures since the board and its staff allegedly worked continuously to finish the canvassing within 72 hours as directed. 3 Paas claimed that if there were figures in the certificates of canvass which did not match the statement of votes prepared by the PBC, he honestly believed that this was due to human fatigue. 4 He alleged that, if at all, he could only be faulted for failing to see for himself if the reading by Fabros of the number of votes and the tabulation thereof faithfully reflected the figures in the PBC's copy of the election returns. Both respondents do not, however, deny that they authenticated the provincial certificate of canvass and signed the statement of votes as

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"true and correct." Their only excuse for any discrepancy was their alleged reliance on the documents prepared by the secretary of PBCIsabela, Olympia Marquez. The Integrated Bar of the Philippines (IBP) Investigating Commissioner George Briones heard the case on January 20, 1997. 5 By agreement of the parties, the Investigating Commissioner ordered the parties to submit simultaneous verified position papers with the affidavits of their witnesses. 6 On June 21, 2003, the IBP board of governors issued a resolution adopting the report and recommendation of the Investigating Commissioner. Respondents were found guilty of violating Rule 1.01 of the Code of Professional Responsibility and were penalized with a fine of P10,000 each, with a warning that a violation on similar grounds will be dealt with more severely. Based on the evidence presented, we find respondents guilty of misconduct. The records reflect, and respondents admit, the discrepancy between the questioned certificate of canvass and the statement of votes of the Province of Isabela in the 1995 elections. While there was no question that the municipal/city certificates of canvass were not tampered with, the tabulation of the figures on the statement of votes was anomalous. For this, respondents were responsible.7 As chairman and vice-chairman of PBC-Isabela, respectively, respondents were mandated to receive the municipal/city certificates of canvass, and to canvass them for the votes of the members of the Senate, among others. 8 They were also required to determine the provisional total votes of each candidate as of each adjournment. On final adjournment, they were tasked to prepare a statement of votes with a certification of the same as official. 9 In addition, they prepared the provincial certificate of canvass (in which the padded figures were discovered) with the certification under oath as public officers that the entries were true and correct. 10 More than simply affixing their signatures for the purpose of identifying the documents, respondents signed the documents certifying (and vouching) for the correctness and accuracy of their contents. Even if they allegedly had no participation in the misdeed, they nevertheless remained responsible for it as officials of PBC-Isabela. Respondents must bear the consequences of any misstatement or falsehood arising from such certification.11 They cannot evade responsibility by pointing to other persons who supposedly prepared the documents in question.12 They had the opportunity to check, as they should have checked, the accuracy of the figures they were certifying to. 13 By certifying to false figures, they committed misconduct subject to disciplinary action. 14 In fact, by invoking the defenses of honest mistake, oversight due to fatigue, even simple negligence, respondents virtually admitted the existence of the discrepancies in the number of votes reflected in the questioned documents.15 As public officers, respondents failed to live up to the high degree of excellence, professionalism, intelligence and skill required of them.16 As lawyers, they were found to have engaged in unlawful, dishonest, immoral and deceitful conduct. 17 They also violated their oath as officers of the court to foist no falsehood on anyone. Furthermore, by express provision of Canon 6 of the Code of Professional Responsibility, the avoidance of such conduct is demanded of them as lawyers in the government service: CANON 6 – These canons shall apply to lawyers in government service in the discharge of their official tasks. As lawyers in the government service, respondents were under an even greater obligation to observe the basic tenets of the legal profession because public office is a public trust. 18 WHEREFORE, the Court finds respondents Atty. Vitaliano C. Fabros and Atty. Pacifico S. Paas GUILTY of misconduct and imposes on them a FINE in the amount of P10,000 each, with a WARNING that the commission in the future of a similar act will be dealt with more severely. Let a copy of this resolution be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines, and entered in the records of respondents. SO ORDERED. [A.M. No. 2001-9-SC. October 11, 2001] DOROTEO IGOY, complainant, vs. ATTY. GILBERT SORIANO, Court Attorney VI, Office of the Clerk of Court, First Division, respondent. RESOLUTION

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PER CURIAM: As an officer of the court, it is the duty of a lawyer to uphold the dignity and authority of the court to which he owes fidelity according to the oath he has taken. It is his foremost responsibility “to observe and maintain the respect due to the courts of justice and judicial officers.”[1] Arrogating unto oneself, as in this case, the mantle of a Justice of the Highest Court of the land for the purpose of extorting money from a party-litigant is an ultimate betrayal of this duty which can not and should never be countenanced, because “[i]t is this kind of gross and flaunting misconduct on the part of those who are charged with the responsibility of administering the law and rendering justice that so quickly and surely corrodes the respect for the law and the courts without which government cannot continue and that tears apart the very bonds of our polity.”[2] Complainant Doroteo A. Igoy is one of the petitioners in G.R. No. 141843, entitled “Heirs of Gavino Igoy, et al, v. Mactan Shangrila Hotel”.[3] In a letter-complaint dated October 8, 2000,[4] written in the Cebuano dialect and addressed to the Chief Justice, complainant alleged that while the aforesaid case was still pending before the Court of Appeals, he tried to look for a person in the Supreme Court who may assist him in obtaining justice. Sometime in July 1999, a friend introduced complainant to a certain “Justice” of the Supreme Court. He narrated to the said Justice the history of their case. In turn, the said Justice asked for and received from him the sum of P20,000.00. However, the said Justice reminded complainant that he could offer no help while the case was pending before the Court of Appeals. In February 2000, they received an unfavorable decision from the Court of Appeals. Thus, complainant immediately visited the said Justice at his office in the Supreme Court to inform him of the decision of the Court of Appeals. The Justice offered to prepare the petition for review to be filed with the Supreme Court. Complainant subsequently met the said Justice at the Max’s Restaurant, where the latter turned over the prepared petition for review. In consideration therefor, the Justice asked for an additional P20,000.00. Since complainant did not have that amount of money with him at that time, he undertook to send the same by courier as soon as he arrives in Cebu. Complainant asked for the said Justice’s complete name and address, which he readily gave as: Atty. Gilbert Soriano, 22 Melon Street, Gatchalian Subdivision, Phase 3-13, Las Piñas City. As promised, complainant sent the amount of P20,000.00 through the Aboitiz Express on May 2, 2000. The parcel was received by a certain Alvin Soriano, who turned out to be respondent’s son, on May 5, 2000. Complainant was surprised to learn that on May 31, 2000, this Court denied the Petition for Review. Accordingly, they filed a Motion for Reconsideration, which this Court denied with finality on July 31, 2000. Together with his letter, complainant submitted the following documents: 1. Photocopy of the Petition for Review allegedly prepared by the “Justice;”[5] 2. Shipper’s Copy of Prepaid Consignment Note No. E0993783C dated May 2, 2000, addressed to one Atty. Gilbert Soriano of 22 Melon St., Gatchalian Subdivision, Phase 3-13, Las Piñas City, with telephone numbers 826-1018, containing cash in the amount of P20,000.00, [6] and sent by one Doroteo Igoy of Mactan, Lapu-lapu City, with telephone numbers 495-8-49;[7] 3. Letter dated May 5, 2000 of one Atty. Gilbert F. Soriano, addressed to Aboitiz Express, authorizing his daughter, Christine Soriano, or his son, Alvin A. Soriano, to receive Parcel No. E0993783C on his behalf;[8] 4. Note dated May 5, 2000, evidencing receipt by one Alvin Soriano of the package on that date at 11:30 o’clock in the morning.[9] In his comment dated November 6, 2000,[10] Atty. Gilbert Soriano denied that he was the “Justice” alluded to. He alleged that his friend, Nic Taneo, introduced complainant to him because the latter was seeking help regarding a pending case involving his poor relatives; that complainant requested him to go over their petition to be filed with the Supreme Court, to ensure that the same would not be denied on technical grounds; he acceded to the request, after which complainant told him that he will be sending him a token of gratitude, but he did not know that it was money. Respondent further narrated that on May 4, 2000, he received a telephone call from Aboitiz Express, informing him that complainant had sent him a parcel but the messenger was unable to locate his given address, and asking him to execute a letter authorizing anyone in his house to receive the parcel. He recalled complainant’s promise of a token of gratitude, so respondent authorized his children to accept the parcel. He was surprised to find inside the parcel cash in the amount of P20,000.00. After several days of mulling over what to do with the money, respondent asked his friend to contact Atty. Rodulfo Taneo, the counsel for petitioners in G.R. No. 141843. Atty. Taneo told him to hold the money and wait until he arrives in Manila.

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Respondent denied giving complainant any assistance other than checking the formal requirements of the petition for review. He also denied that he entertained complainant in his office in the First Division of this Court which, according to him, barely accommodates the staff therein with very little elbow room. Assuming that complainant was thus accommodated in respondent’s office in the First Division, respondent could not have uttered the irresponsible and degrading statements imputed on him by complainant. Further, respondent denied having received the amount of P20,000.00 from complainant, arguing that, as a practicing catholic and active church leader, he can not in conscience deceive anyone and ask for money. Respondent likewise denied having demanded for an additional P20,000.00, countering that complainant merely promised him a token gift for the little help that he extended, without mention of any amount. In fact, he almost forgot about that promise, and he remembered it only when he was notified by the courier service that he had a parcel from complainant. That was almost two (2) months after the case petition for review was filed with this Court. In closing, respondent insinuated that if this Court should find that he committed a misconduct despite his explanation, he shall offer to retire from the service. On November 16, 2000, complainant wrote another letter to the Chief Justice, again written in the Cebuano dialect.[11] Complainant averred that respondent was introduced to him by Engr. William Redoblado as one of the Justices of the Supreme Court. He only learned that respondent was not a Justice when they met at the Cebu Mactan International Airport on October 31, 2000. Respondent offered to return the P40,000.00, but be refused to receive the same. Instead, he told respondent to just wait for the outcome of the complaint he filed against him with the Office of the Chief Justice. In the same letter, complainant provided the following questions and answers, to wit: 1. What is the name of the Justice of the Supreme Court whom you contacted? Answer:

Atty. Gilbert Soriano.

2. Where did you meet/see him? Answer:

Inside the premises of the Supreme Court.

3. Who was the person who introduced him as Justice? Answer: Engr. William Redoblado was the one who introduced to me that Gilbert Soriano is a Justice. I never knew that Gilbert Soriano is not a Justice. 4. Where did you specifically give to the Justice the first P20,000.00? Answer:

At the ground floor of the Supreme Court beside the canteen where the parking area is located.

5. Who were with you at the Max’s Restaurant when the petition was given to you? Answer: Engr. William Redoblado, Leonardo Paquibot, Atty. Rodolfo Taneo, Atty. Gilbert Soriano and myself (complainant Igoy). Atty. Taneo returned the petition because it was lacking. Respondent submitted his comment[12] to the second letter, wherein he contended that when complainant allegedly gave him the sum of P20,000.00 on July 16, 1999, his case was still pending before the Court of Appeals; hence, there was then no reason for complainant to approach respondent and give him money. Moreover, it is unnatural for a person to give money to someone whom he does not know well and whom he met only for the first time. Respondent brands as unbelievable the version that complainant handed the money to him at the parking area beside the Supreme Court canteen, where many of the Court’s employees and visitors frequently pass. He claimed that it was not Engr. William Redoblado, but Mr. Taneo who introduced him to complainant. Respondent alleged that on October 30, 2000, he informed Atty. Taneo that he was returning the money he received through Aboitiz Express. He was told by Atty. Taneo to meet him in Cebu. On October 31, 2000, respondent arrived in Cebu and met Atty. Taneo and complainant at an eatery near the airport. Respondent offered to return the P20,000.00 to complainant, but the latter refused to accept it. Complainant stated that he will withdraw his complaint only after the Supreme Court decides their case in their favor. Respondent, however, informed complainant that as a mere employee of the court, he could not dictate the outcome of the case.

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On January 8, 2001, Atty. Soriano filed his letter of resignation/retirement under R.A. 1616, without specifying its effectivity date.[13] The Office of Administrative Services, to which this case was referred for evaluation, issued a Memorandum on May 30, 2001, recommending respondent’s dismissal from the service effective immediately, with forfeiture of all retirement benefits to which he may be entitled. Respondent’s offer to resign was obviously an attempt to evade whatever penalty may be imposed on him. However, the mere expedient of resigning from the service will not extricate him from the consequences of his acts. As this Court pointed out in Rayos-Ombac v. Rayos:[14] . . . 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 attorney’s alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizen’s may have in the proper administration of justice. Settled is the rule that in administrative cases of this nature, the Court may proceed with its investigation and mete the appropriate penalty against erring officers of the court.[15] Resignation should not be used either as an escape or as an easy way out to evade administrative liability by court personnel facing administrative sanction.[16] In recommending the dismissal of respondent from service, the Office of Administrative Services (OAS) reasoned that: From the established facts, it is clear that complainant came to see respondent to plead for help in preparing a Petition for Review. The respondent, on the other hand, saw it as an opportunity to make the complainant believe that he has the “influence and connections” in the court and would be easy for him (respondent) to help the complainant. True, as respondent claimed, he was not urged by ulterior motives in preparing the Petition for Review or at least reviewing the same, but not being his official duty to do so, his actuation led complainant to believe that it should be for a fee. It would have been very easy for him to decline the offer of P20,000.00 even if it was gratuitously given if his real intention was merely to help. He knew for a fact that the petitioners have a counsel who, presumably, knows the appropriate pleadings to be filed with this Court. Sec. 7 (D) of R.A. 6713 (Code of Ethical Conduct and Standard for Public Officials and Employees) specifically provides: Sec. 7. Prohibited Acts and Transactions xxx

xxx

xxx

d. Solicitations or acceptance of gifts — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transactions which may be affected by the functions of their office. Respondent, who is himself a lawyer, should have avoided all the circumstances in which he might be accused of using his office in the guise of “helping others”, for this taints the integrity of the Court. The denial of the respondent of the receipt of initial payment of P20,000.00 cannot simply overcome the positive assertions of the complainant. If no such initial payment took place, Atty. Soriano would not have claimed the subsequent payment through the Aboitiz Express. The claim of Atty. Soriano that the amount was given gratuitously would not excuse him from any liability. To tolerate such acts would open the floodgates to fraud or graft and corruption to be committed by officials and employees of the Court. Likewise, the fact that respondent tried to return the amount to Mr. Igoy after the Chief Justice required him to comment on the complaint only strengthened the case against him. Even if the offer to return the money was accepted by the complainant, it will never exculpate him of his administrative liabilities. Respondent by his brazen conduct consummated an act that by itself is a disservice to the administration of justice and an affront of the image of the court before the public. It is admitted that respondent offered to resign, however, resignation should not be used as an easy way to escape administrative liability by a court personnel facing administrative sanction. Respondent therefore cannot go scot-free and be simply forgiven for the damage he

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caused to the institution he was bound by his oath and The Canons of Legal Ethics to serve with utmost integrity. Respondent may have been in the service for 28 years, but he has blemished his record irreparably and under the circumstances, this office believes that dismissal as a penalty is warranted. The Court adopts the foregoing findings and recommendation of the OAS. Time and again, this Tribunal has emphasized that “[t]he conduct or behavior of all officials and employees of an agency involved in the administration of justice, from the presiding judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility.[17] Their conduct must, at all times be characterized by, among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary.”[18] Indeed, Canon 6, Rule 6.02, of the Code of Professional Responsibility states in no uncertain terms that — 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.

The foregoing command acquires particular significance given the prevailing facts of this case considering that respondent is a senior lawyer of this Court. It bears stressing that government lawyers who are public servants owe utmost fidelity to the public service, for public service is 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.[19] The Court could not help but express its great disappointment over the conduct of respondent who, as a lawyer with twenty-eight (28) years of government service behind him, should have been among the first to set an example to his co-employees and fellow civil servants. Instead, he badly tainted the image of this Tribunal as well as the judiciary. Only recently in In Re: Derogatory News Items Charging Court of Appeals Associate Justice Demetrio Demetria with Interference on Behalf of a Suspected Drug Queen,[20] this Court said that: Men and women of the courts must conduct themselves with honor, probity, fairness, prudence and discretion. Magistrates of justice must always be fair and impartial. They should avoid not only acts of impropriety, but all appearances of impropriety. Their influence in society must be consciously and conscientiously exercised with utmost prudence and discretion. For theirs is the assigned role of preserving the independence, impartiality and integrity of the Judiciary. Respondent should be reminded in this regard that the nature and responsibilities of public officers enshrined in the Constitution, and oftrepeated in our case law, are not mere rhetorical words to be taken lightly as idealistic sentiments but as working standards and attainable goals, that should be matched with actual deeds.[21] Those involved in the administration of justice must live up to the strictest standards of honesty and integrity in the public service,[22] In sanctioning errant officers and employees involved in the administration of justice, the Court has held: Since the administration of justice is a sacred task, the persons involved in it ought to live up to the strictest standard of honesty, integrity and uprightness. It bears stressing once again that public service requires utmost integrity and the strictest discipline possible of every public servant. A public office is a public trust that enjoins all public officers and employees, particularly those serving in the judiciary to respond to the highest degree of dedication often even beyond personal interest.[23] All too often, this Court has declared that any act which falls short of the exacting standards for public office, especially on the part of those expected to preserve the image of the judiciary, shall not be countenanced.[24] To reiterate, public office is a public trust. Public officers must at all times be accountable to the people, serve them with the utmost degree of responsibility, integrity, loyalty and efficiency.[25] This Court has also ruled that: Time and again, we have emphasized the heavy burden and responsibility which court personnel are saddled with in view of their exalted positions as keepers of the public faith. They must be constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. As we have held in the case of Mendoza v. Mabutas (223 SCRA 411 [1993], citing Sy v. Academia, 198 SCRA 705 [1991]), this Court condemns and would never countenance such conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.[26]

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Respondent’s acts seriously undermined the trust and confidence of the public in the entire judicial system. What makes his infraction worse is the fact that he is not a mere court employee, but a senior attorney employed in the Highest Court of the Land. He has indelibly sullied his record of government service spanning twenty-eight years, and in so doing he has prejudiced the integrity of the Court as a whole. Once more, this Court is called upon to apply disciplinary sanction on an errant member, and again it will not shirk from its responsibility. Thus, this Court imposes on respondent the only penalty that he deserves --- that of dismissal from the service. ACCORDINGLY, respondent Atty. Gilbert Soriano is hereby DISMISSED from the service, with forfeiture of all retirement benefits and leave credits and with prejudice to reemployment in any branch or instrumentality of the government including government-owned or controlled corporations. This dismissal shall be immediately executory. Further, respondent Atty. Gilbert Soriano is DIRECTED to SHOW CAUSE within ten (10) days from notice hereof why he should not, be DISBARRED. In the meantime, respondent is SUSPENDED from the practice of law. Let copies of this Resolution be attached to the records of Atty. Gilbert Soriano and furnished the Integrated Bar of the Philippines and all the courts throughout the country. SO ORDERED. OVITO S. OLAZO, Complainant,

A.M. No. 10-5-7-SC

Present:

CORONA, C.J., CARPIO, -

versus

CARPIO MORALES, *VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN,

JUSTICE DANTE O. TINGA (Ret.),

Respondent.

DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and

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SERENO, JJ.

Promulgated:

December 7, 2010 x----------------------------------------------------------------------------------------x

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 6.03[2] and Rule 1.01[3] of 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

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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.

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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 P50,000.00 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

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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]

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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. Soriano[19] 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.

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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, 1996[23]), 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 Conveyance[27] 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

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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:

x x x x

(b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

x x x x

(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

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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.

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.,[32] we 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

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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 Appeals [35] 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. [AC-5365. April 27, 2005] Spouses FRANKLIN and LOURDES OLBES, complainants, vs. Atty. VICTOR V. DECIEMBRE, respondent. DECISION PANGANIBAN, J.: Constituting a serious transgression of the Code of Professional Responsibility was the malevolent act of respondent, who filled up the blank checks entrusted to him as security for a loan by writing on those checks amounts that had not been agreed upon at all, despite his full knowledge that the loan they were meant to secure had already been paid. The Case Before us is a verified Petition[1] for the disbarment of Atty. Victor V. Deciembre, filed by Spouses Franklin and Lourdes Olbes with the Office of the Bar Confidant of this Court. Petitioners charged respondent with willful and deliberate acts of dishonesty, falsification and conduct unbecoming a member of the Bar. After he had filed his Comment[2] on the Petition, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The IBP’s Commission on Bar Discipline (CBD), through Commissioner Caesar R. Dulay, held several hearings. During those hearings, the last of which was held on May 12, 2003,[3] the parties were able to present their respective witnesses and documentary evidence. After the filing of the parties’ respective formal offers of evidence, as well as petitioners’ Memorandum,[4] the case was considered

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submitted for resolution. Subsequently, the commissioner rendered his Report and Recommendation dated January 30, 2004, which was later adopted and approved by the IBP Board of Governors in its Resolution No. XV-2003-177 dated July 30, 2004. The Facts In their Petition, Spouses Olbes allege that they were government employees working at the Central Post Office, Manila; and that Franklin was a letter carrier receiving a monthly salary of P6,700, and Lourdes, a mail sorter, P6,000.[5] Through respondent, Lourdes renewed on July 1, 1999 her application for a loan from Rodela Loans, Inc., in the amount of P10,000. As security for the loan, she issued and delivered to respondent five Philippine National Bank (PNB) blank checks (Nos. 0046241-45), which served as collateral for the approved loan as well as any other loans that might be obtained in the future.[6] On August 31, 1999, Lourdes paid respondent the amount of P14,874.37 corresponding to the loan plus surcharges, penalties and interests, for which the latter issued a receipt,[7] herein quoted as follows: “August 31, 1999 Received the amount of P14,874.37 as payment of the loan of P10,000.00 taken earlier by Lourdes Olbes. (Sgd.) Atty. Victor V. Deciembre 8-31-99 P10,000.00 PNB Check No. 46241 –8/15/99”[8] Notwithstanding the full payment of the loan, respondent filled up four (of the five) blank PNB Checks (Nos. 0046241, 0046242, 0046243 and 0046244) for the amount of P50,000 each, with different dates of maturity -- August 15, 1999, August 20, 1999, October 15, 1999 and November 15, 1999, respectively.[9] On October 19, 1999, respondent filed before the Provincial Prosecution Office of Rizal an Affidavit-Complaint against petitioners for estafa and violation of Batas Pambansa (BP) 22. He alleged therein that on July 15, 1999, around one-thirty in the afternoon at Cainta, Rizal, they personally approached him and requested that he immediately exchange with cash their postdated PNB Check Nos. 0046241 and 0046242 totaling P100,000.[10] Several months after, or on January 20, 2000, respondent filed against petitioners another Affidavit-Complaint for estafa and violation of BP 22. He stated, among others, that on the same day, July 15, 1999, around two o’clock in the afternoon at Quezon City, they again approached him and requested that he exchange with cash PNB Check Nos. 0046243 and 0046244 totaling P100,000.[11] Petitioners insisted that on the afternoon of July 15, 1999, they never went either to Cainta, Rizal, or to Quezon City to transact business with respondent. Allegedly, they were in their office at the time, as shown by their Daily Time Records; so it would have been physically impossible for them to transact business in Cainta, Rizal, and, after an interval of only thirty minutes, in Quezon City, especially considering the heavy traffic conditions in those places.[12] Petitioners averred that many of their office mates -- among them, Juanita Manaois, Honorata Acosta and Eugenia Mendoza -- had suffered the same fate in their dealings with respondent.[13] In his Comment,[14] respondent denied petitioners’ claims, which he called baseless and devoid of any truth and merit. Allegedly, petitioners were the ones who had deceived him by not honoring their commitment regarding their July 15, 1999 transactions. Those transactions, totaling P200,000, had allegedly been covered by their four PNB checks that were, however, subsequently dishonored due to “ACCOUNT CLOSED.” Thus, he filed criminal cases against them. He claimed that the checks had already been fully filled up when petitioners signed them in his presence. He further claimed that he had given them the amounts of money indicated in the checks, because his previous satisfactory transactions with them convinced him that they had the capacity to pay. Moreover, respondent said that the loans were his private and personal transactions, which were not in any way connected with his profession as a lawyer. The criminal cases against petitioners were allegedly private actions intended to vindicate his rights against their deception and violation of their obligations. He maintained that his right to litigate should not be curtailed by this administrative action.

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Report of the Investigating Commissioner In his Report and Recommendation, Commissioner Dulay recommended that respondent be suspended from the practice of law for two years for violating Rule 1.01 of the Code of Professional Responsibility. The commissioner said that respondent’s version of the facts was not credible. Commissioner Dulay rendered the following analysis and evaluation of the evidence presented: “In his affidavit-complaint x x x executed to support his complaint filed before the Provincial Prosecution Office of Rizal respondent stated that: 2. That last July 15, 1999, in the jurisdiction of Cainta, Rizal, both LOURDES E. OLBES and FRANKLIN A. OLBES x x x, personally met and requested me to immediately exchange with cash, right there and then, their postdated checks totaling P100,000.00 then, to be immediately used by them in their business venture. “Again in his affidavit-complaint executed to support his complaint filed with the Office of the City Prosecutor of Quezon City respondent stated that: 2. That last July 15, 1999, at around 2PM, in the jurisdiction of Quezon City, M.M., both LOURDES E. OLBES and FRANKLIN A. OLBES x x x, personally met and requested me to immediately exchange with cash, right there and then, their postdated checks totaling P100,000.00 then, to be immediately used by them in their business venture. “The above statements executed by respondent under oath are in direct contrast to his testimony before this Commission on crossexamination during the May 12, 2003 hearing, thus: ATTY PUNZALAN: (continuing) Q. Based on these four (4) checks which you claimed the complainant issued to you, you filed two separate criminal cases against them, one, in Pasig City and the other in Quezon City, is that correct? A. Yes, Your Honor, because the checks were deposited at different banks. Q. These four checks were accordingly issued to you by the complainants on July 15, 1999, is that correct? A. I will consult my records, You Honor, because it’s quite a long time. Yes, Your Honor, the first two checks is in the morning and the next two checks is in the afternoon (sic). COMM. DULAY: Which are the first two checks? ATTY. DECIEMBRE: The first two checks covering check Nos. 46241 and 46242 in the morning. And Check No. 46243 and 46244 in the afternoon, Your Honor. ATTY. PUNZALAN: Q. Could you recall what particular time in the morning that these two checks with number 0046241 and 0046242 xxx have been issued to you? A.

I could not remember exactly but in the middle part of the morning around 9:30 to 10:00.

Q. This was issued to you in what particular place? A.

Here in my office at Garnet Road, Ortigas Center, Pasig City.

Q. Is that your house? A.

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No, it’s not my house?

Q. What is that, is that your law office? A. That is my retainer client. Q. What is the name of that retainer client of yours? ATTY. DECIEMBRE: Your Honor, may I object because what is the materiality of the question? ATTY. PUNZALAN: That is very material. I am trying to test your credibility because according to you these checks have been issued in Pasig in the place of your client on a retainer. That’s why I am asking your client… COMM. DULAY: The name of the client is not material I think. It is enough that he said it was issued here in Pasig. What building? ATTY. DECIEMBRE: AIC Corporate Center, Your Honor. COMM. DULAY: What is the materiality of knowing the name of his client’s office? ATTY. PUNZALAN: Because, Your Honor, the materiality is to find out whether he is telling the truth. The place, Your Honor, according to the respondent is his client. Now I am asking who is that client? COMM. DULAY: Your answer. ATTY. DECIEMBRE: A.

It is AIC Realty Corporation at AIC Building.

Q. And the same date likewise, the complainants in the afternoon issued PNB Check Nos. 0046243 and 0046244, is that correct? A. Yes. Q. So would you want to tell this Honorable office that there were four checks issued in the place of your client in Pasig City, two in the morning and two in the afternoon? A. That is correct, sir. “Respondent was clearly not being truthful in his narration of the transaction with the complainants. As between his version as to when the four checks were given, we find the story of complainant[s] more credible. Respondent has blatantly distorted the truth, insofar as the place where the transaction involving the four checks took place. Such distortion on a very material fact would seriously cast doubt on his version of the transaction with complainants. “Furthermore respondent’s statements as to the time when the transactions took place are also obviously and glaringly inconsistent and contradicts the written statements made before the public prosecutors. Thus further adding to the lack of credibility of respondent’s version of the transaction. “Complainants’ version that they issued blank checks to respondent as security for the payment of a loan of P10,000.00 plus interest, and that respondent filled up the checks in amounts not agreed upon appears to be more credible. Complainants herein are mere employees of the Central Post Office in Manila who had a previous loan of P10,000.00 from respondent and which has since been paid x x x. Respondent does not deny the said transaction. This appears to be the only previous transaction between the parties. In fact,

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complainants were even late in paying the loan when it fell due such that they had to pay interest. That respondent would trust them once more by giving them another P200,000.00 allegedly to be used for a business and immediately release the amounts under the circumstances described by respondent does not appear credible given the background of the previous transaction and personal circumstances of complainants. That respondent who is a lawyer would not even bother to ask from complainants a receipt for the money he has given, nor bother to verify and ask them what businesses they would use the money for contributes further to the lack of credibility of respondent’s version. These circumstances really cast doubt as to the version of respondent with regard to the transaction. The resolution of the public prosecutors notwithstanding we believe respondent is clearly lacking in honesty in dealing with the complainants. Complainant Franklin Olbes had to be jailed as a result of respondent’s filing of the criminal cases. Parenthetically, we note that respondent has also filed similar cases against the co-employees of complainants in the Central Post Office and respondent is facing similar complaints in the IBP for his actions.”[15] The Court’s Ruling We agree with the findings and conclusions of Commissioner Dulay, as approved and adopted by the IBP Board of Governors. However, the penalty should be more severe than what the IBP recommended. Respondent’s Administrative Liability Membership in the legal profession is a special privilege burdened with conditions.[16] It is bestowed upon individuals who are not only learned in the law, but also known to possess good moral character.[17] “A lawyer is an oath-bound servant of society whose conduct is clearly circumscribed by inflexible norms of law and ethics, and whose primary duty is the advancement of the quest for truth and justice, for which he [or she] has sworn to be a fearless crusader.”[18] By taking the lawyer’s oath, an attorney becomes a guardian of truth and the rule of law, and an indispensable instrument in the fair and impartial administration of justice.[19] Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in order to promote the public’s faith in the legal profession.[20] The Code of Professional Responsibility specifically mandates the following: “Canon 1. A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes. xxx

xxx

xxx

“Canon 7. A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar. xxx

xxx

xxx

“Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.” A high standard of excellence and ethics is expected and required of members of the bar.[21] Such conduct of nobility and uprightness should remain with them, whether in their public or in their private lives. As officers of the courts and keepers of the public’s faith, they are burdened with the highest degree of social responsibility and are thus mandated to behave at all times in a manner consistent with truth and honor.[22] The oath that lawyers swear to likewise impresses upon them the duty of exhibiting the highest degree of good faith, fairness and candor in their relationships with others. The oath is a sacred trust that must be upheld and kept inviolable at all times. Thus, lawyers may be disciplined for any conduct, whether in their professional or in their private capacity, if such conduct renders them unfit to continue to be officers of the court.[23] In the present case, the IBP commissioner gave credence to the story of petitioners, who said that they had given five blank personal checks to respondent at the Central Post Office in Manila as security for the P10,000 loan they had contracted. Found untrue and unbelievable was respondent’s assertion that they had filled up the checks and exchanged these with his cash at Quezon City and Cainta, Rizal. After a careful review of the records, we find no reason to deviate from these findings. Under the circumstances, there is no need to stretch one’s imagination to arrive at an inevitable conclusion. Respondent does not deny the

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P10,000 loan obtained from him by petitioners. According to Franklin Olbes’ testimony on cross-examination, they asked respondent for the blank checks after the loan had been paid. On the pretext that he was not able to bring the checks with him,[24] he was not able to return them. He thus committed abominable dishonesty by abusing the confidence reposed in him by petitioners. It was their high regard for him as a member of the bar that made them trust him with their blank checks.[25] It is also glaringly clear that the Code of Professional Responsibility was seriously transgressed by his malevolent act of filling up the blank checks by indicating amounts that had not been agreed upon at all and despite respondent’s full knowledge that the loan supposed to be secured by the checks had already been paid. His was a brazen act of falsification of a commercial document, resorted to for his material gain. And he did not stop there. Because the checks were dishonored upon presentment, respondent had the temerity to initiate unfounded criminal suits against petitioners, thereby exhibiting his vile intent to have them punished and deprived of liberty for frustrating the criminal duplicity he had wanted to foist on them. As a matter of fact, one of the petitioners (Franklin) was detained for three months[26] because of the Complaints. Respondent is clearly guilty of serious dishonesty and professional misconduct. He committed an act indicative of moral depravity not expected from, and highly unbecoming, a member of the bar. Good moral character is an essential qualification for the privilege to enter into the practice of law. It is equally essential to observe this norm meticulously during the continuance of the practice and the exercise of the privilege.[27] Good moral character includes at least common honesty.[28] No moral qualification for bar membership is more important than truthfulness and candor.[29] The rigorous ethics of the profession places a premium on honesty and condemns duplicitous behavior.[30] Lawyers must be ministers of truth. Hence, they must not mislead the court or allow it to be misled by any artifice. In all their dealings, they are expected to act in good faith.[31] Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and dishonorable;[32] they reveal a basic moral flaw. The standards of the legal profession are not satisfied by conduct that merely enables one to escape the penalties of criminal laws.[33] Considering the depravity of the offense committed by respondent, we find the penalty recommended by the IBP of suspension for two years from the practice of law to be too mild. His propensity for employing deceit and misrepresentation is reprehensible. His misuse of the filled-up checks that led to the detention of one petitioner is loathsome. In Eustaquio v. Rimorin,[34] the forging of a special power of attorney (SPA) by the respondent to make it appear that he was authorized to sell another’s property, as well as his fraudulent and malicious inducement of Alicia Rubis to sign a Memorandum of Agreement to give a semblance of legality to the SPA, were sanctioned with suspension from the practice of law for five years. Here, the conduct of herein respondent is even worse. He used falsified checks as bases for maliciously indicting petitioners and thereby caused the detention of one of them. WHEREFORE, Atty. Victor V. Deciembre is found guilty of gross misconduct and violation of Rules 1.01 and 7.03 of the Code of Professional Responsibility. He is hereby indefinitely SUSPENDED from the practice of law effective immediately. Let copies of this Decision be furnished all courts as well as the Office of the Bar Confidant, which is directed to append a copy to respondent’s personal record. Let another copy be furnished the National Office of the Integrated Bar of the Philippines. SO ORDERED. [ADM. CASE No. 6595. April 15, 2005] JOSEPH SAMALA, complainant, vs. ATTY. ANTONUITTI K. PALAÑA, respondent. RESOLUTION AZCUNA, J.: This is a complaint filed by Joseph Samala against respondent Atty. Antonuitti K. Palaña for alleged fraudulent activities that violate the Code of Professional Responsibility. Sometime in February 2001, complainant was looking for a company where he could invest his dollar savings. He met Raymond Taino, a trader-employee of First Imperial Resources, Inc. (FIRI), a company located at Legaspi Village, Makati City. Taino introduced him to FIRI Manager Jun Agustin, Chief Trader Diosdado Bernal, and Legal Officer Antonuitti K. Palaña, the respondent herein.

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Complainant expressed his concern to the said three officers of FIRI about having been warned of numerous fraudulent businesses in the Philippines. Respondent assured him that through FIRI he would be directly putting his investment with Eastern Vanguard Forex Limited, a reputable company based in the Virgin Islands which has been in the foreign exchange business for 13 years. The three officers presented to him their company profile and documents purporting to establish their relationship with Eastern Vanguard Forex Limited. Due to the personal representations and assurances of respondent, Agustin, and Bernal, complainant was convinced and he invested his dollar savings with FIRI on March 9, 2001. Subsequently, complainant decided to pull out his investment. On April 5, 2001, he sent FIRI a letter requesting the withdrawal of his investment amounting to US$10,000 and giving FIRI 10 days to prepare the money. On April 15, 2001, complainant asked Agustin when his money would be returned. Agustin told him that the request was sent to Thomas Yiu of Eastern Vanguard at Ortigas Center. Complainant went to see Thomas Yiu at his office. Yiu was surprised when he saw the documents involving complainant’s investment. Yiu phoned Agustin and demanded an explanation as to where the money was. Agustin said that he would return complainant’s investment at FIRI’s office in Makati. On the same day, in the presence of respondent, Agustin delivered to complainant a check in the amount of P574,045.09, as the peso equivalent of complainant’s investment with FIRI. On May 2, 2001, the said check was dishonored because it was drawn against insufficient funds. Complainant informed respondent of the dishonor of the check. Respondent assured him that the check would be replaced. On June 1, 2001, respondent, as legal officer of FIRI, gave complainant P250,000 in cash and a check in the amount of P329,045.09. Respondent told complainant that the check was signed by FIRI President Paul Desiderio in his (respondent’s) presence and assured complainant that the check would be funded. But on June 28, 2001, the check was dishonored because it was drawn against insufficient funds. On July 14, 2001, complainant charged Paul Desiderio of Estafa and Violation of Batas Pambansa Bilang 22 at the Prosecutor’s Office of Makati. On November 4, 2001, Judge Evelyn Arcaya-Chua of the Metropolitan Trial Court, Makati City, issued a warrant of arrest against Paul Desiderio. On March 5, 2002, complainant joined three police officers in serving the warrant of arrest against Paul Desiderio at No. 10 Damascus St., Northeast Executive Village, B.F. Homes, Parañaque City. Complainant got the said address of Paul Desiderio from the documents of FIRI. Although there was a street named Damascus in the said village, there was no residence numbered “10.” The police officers checked the existence of the said address and resident at the office of the subdivision association. They were told that no such address existed and that no resident named Paul Desiderio lived in the subdivision. Complainant alleged that respondent’s act of representing himself to be the legal officer of FIRI and his assurance that the check he personally delivered to him was signed in his presence by FIRI Officer Paul Desiderio, when no such person appears to exist, is clearly fraudulent and violative of the Canons of Professional Ethics.[1] Complainant requested the Integrated Bar of the Philippines for a thorough investigation of respondent as a member of the bar. In an Order dated January 27, 2003, Director for Bar Discipline Victor C. Fernandez required respondent to submit his Answer to the Complaint within 15 days from receipt thereof. Despite receipt of said order as evidenced by a registry return receipt dated February 3, 2003, respondent did not submit an Answer. The case was referred to Commissioner Lydia A. Navarro of the Commission on Bar Discipline for investigation. Respondent failed to appear when the case was set for hearing on April 8, 2003, despite due notice. Hence, respondent was declared in default and the case was heard ex parte. Based on the evidence adduced, Commissioner Navarro reported, thus: [R]espondent was instrumental in the issuance of the check signed by the alleged President of FIRI, Paul Desiderio, whose whereabouts could not be located and whose identity was unknown[,] for respondent was the one who handed personally to the herein complainant the check which was dishonored due to insufficient funds, when it was the very respondent, Atty. Palaña, who allegedly assured that the check was funded. Respondent was also one of those alleged officers of FIRI who assured complainant that his investment was directly placed in a re[p]utable company. Further investigation by the complainant with the assistance of NBI officers showed that respondent Palaña was also linked with Belkin’s

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whose activity was the same as the FIRI and the SEC has on file the By-Laws of FIRI wherein it was stated that[,] to wit: “the primary purpose of which is to act as consultant in providing professional expertise and reliable data analysis related to partnership and so on. And the corporation shall not engage in the business as securities advisor, stockbroker or investment house[:] Q. x x x A. First Imperial is prohibited from engaging in foreign exchange business. Q. x x x A. And despite [. . .] this prohibition, they went on and engaged in activities which are prohibited specifically in their by-laws“ (TSN pages 16 and 17 of July 17, 2003, CBD Case No. 02-1048). It is evident from the foregoing that respondent and his cohorts violated the main purpose of the FIRI By-Laws particularly investment or foreign exchange business which must have been the reason why Yiu was surprised and got mad when complainant approached him about his dollar savings investment of USD10,000 received by the respondent as Legal Officer and the two (2) other alleged officers Agustin and Bernal of the FIRI[,] a transaction expressly prohibited by the FIRI By-laws.[2] Respondent was found to have violated Rule 7.03 of Canon 7 of the Code of Professional Responsibility, which states: 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. Commissioner Navarro thus recommended that respondent be suspended from the practice of law for six (6) months. In its Resolution dated July 30, 2004, the Board of Governors of the IBP adopted and approved the Report and Recommendation of the Investigating Commissioner with the modification that respondent should be suspended from the practice of law for three (3) years. This Court agrees with the IBP Board of Governors. The Code of Professional Responsibility mandates that “a lawyer shall at all times uphold the integrity and dignity of the legal profession. [3] To this end, nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.[4] In this case, respondent assured complainant that by investing his dollar savings with FIRI, his investment was in a stable company, even if, as it was later discovered, the by-laws of FIRI prohibited it from engaging in investment or foreign exchange business and its primary purpose is “to act as consultant in providing professional expertise and reliable data analysis related to partnership and so on.” When complainant decided to withdraw his investment from FIRI, the first check given to him in the amount of his total investment bounced. Thereafter, respondent, as legal officer of FIRI, gave complainant P250,000 in cash and a check for P329,045.09. Respondent assured complainant that the second check was a “good check” and that it was signed by Paul Desiderio, the alleged president of FIRI. However, the said check bounced because it was drawn against insufficient funds, and the drawer of the check, Paul Desiderio, could not be located when sought to be served a warrant of arrest since his identity was unknown and his residential address was found to be nonexistent. Hence, it is clear that the representations of respondent as legal officer of FIRI caused material damage to complainant. In so doing, respondent failed to uphold the integrity and dignity of the legal profession and lessened the confidence of the public in the honesty and integrity of the same. WHEREFORE, respondent Atty. Antonuitti K. Palaña is found GUILTY of violating Rule 7.03 of the Code of Professional Responsibility and hereby SUSPENDED from the practice of law for a period of three (3) years effective from receipt of this Resolution, with a WARNING that a repetition of the same or similar acts will be dealt with more severely. Let a copy of this resolution be spread on the records of respondent, and furnished to all courts, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. A.C. No. 7280

November 16, 2006

DAHLIA S. vs. ATTY. ALEXANDER BULAUITAN, Respondent.

GACIAS,

DECISION GARCIA, J.:

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Complainant,

Before the Court is a complaint for disbarment instituted by the herein complainant Dahlia S. Gacias against Atty. Alexander Bulauitan on grounds of dishonesty and grave misconduct. Herein respondent Atty. Alexander Bulauitan used to own a parcel of land with an area of 1,242 square meters located at Tuguegarao City and covered by Transfer Certificate of Title No. T-79190. Sometime in February 1996, complainant and respondent entered into an agreement for the purchase, on installment basis, of a 92-square meter portion of the 1,242-square meter lot at a unit price of P3,500.00 per square meter. Out of the total consideration of P322,000.00, complainant initially paid respondent, as down payment, US$3,100.00, or its equivalent of P82,000.00, as evidenced by a receipt dated February 28, 1996. Subsequent installment payments were remitted, as mutually agreed upon, to the Bank of Philippine Islands, Kamuning Branch, under the account of respondent’s daughter, Joan Christine. All told, complainant had, as of November 1996, paid the respondent, in cash and in kind, the peso equivalent of US$6,950.00, which, per complainant’s computation, using the $1:P43 dollar-peso rate of exchange, amounted to P300,000.00. As complainant would also allege in her affidavit-complaint dated April 23, 2001, 1 as amended,2 she asked for the copy of the title over the 92-square meter portion upon learning about the mortgage the respondent constituted over his Tuguegarao property. According to complainant, respondent’s inability to produce the desired title impelled her not to complete payment anymore and to request the return of the amount she had already paid the respondent. Complainant further alleged that the respondent agreed, but has not made good his undertaking, to make reimbursement. Her request for assistance from the Integrated Bar of the Philippines (IBP) proved futile, too. Meanwhile, the mortgagee bank, China Bank, foreclosed the mortgage constituted on the respondent’s property, then consolidated the title over it in its name. In his answer in compliance with an order from the IBP Commission on Bar Discipline, respondent admitted entering into a land purchase agreement with the complainant, but stressed the private nature of the transaction between them. He described as premature the complainant’s demand for delivery of title inasmuch as the aforementioned agreement was not consummated for complainant’s failure to pay in full the purchase price of the 92-square meter portion. Respondent admitted, though, that he undertook to pay back the amount of P300,000.00 as a measure to avoid scandal, given what to him was complainant’s penchant to make a scene whenever the opportunity presented itself. To the answer, complainant countered with a reply, to which respondent filed a rejoinder. In the meantime, complainant, upon the facts above narrated, filed a criminal complaint for estafa against the respondent before the Office of the Provincial Prosecutor of Cagayan. Following several failed preliminary conferences and hearings, IBP Bar Discipline Hearing Commissioner Wilfredo E.J. E. Reyes issued, on July 22, 2005, an order3 declaring the case as submitted for resolution on the basis of the pleadings and position papers submitted by the parties, with their attachments. In its report dated November 8, 2005, the IBP Commission on Bar Discipline recommends that respondent be adjudged guilty of dishonesty and grave misconduct and meted the penalty of suspension from the practice of law for a period of two (2) years. The recommendation to suspend and the findings holding it together commend themselves for concurrence.1âwphi1 The Code of Professional Responsibility enjoins a lawyer from engaging in unlawful, dishonest or deceitful conduct. 4 The complementing Rule 7.03 of the Code, on the other hand, provides that "a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law." Another complementing provision is found in the Rules of Court providing that a member of the bar may be suspended or even removed from office as an attorney for any deceit, malpractice, or misconduct in office. 5 And 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 invest him with. To borrow from Orbe v. Adaza. 6 "[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, including dishonesty, of a lawyer in his professional or private capacity." Like Atty. Adaza in Orbe, respondent Atty. Bulauitan also refused without justifiable reason to comply with his just obligation under a contract he entered into with the complainant. There can be no quibbling as to the complainant having paid respondent the amount of P300,000.00 out of the total contract cost of P322,000.00. In other words, there had been substantial contract compliance on the part of

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the complainant. A reciprocal effort towards complying with his part of the bargain would have been becoming of respondent, as a man of goodwill. It would appear, however, that this kind of gesture was alas too much to hope for from the respondent. For, instead of going through the motion of delivering the portion of his property to its buyer after his receipt of almost the entire purchase price therefor, the respondent mortgaged the whole property without so much as informing the complainant about it. Like the IBP investigating commissioner, the Court finds the respondent’s act of giving the property in question in mortgage bordering on the fraudulent and surely dishonest. The Court, to be sure, takes stock of respondent’s attempt to make amends by promising to return the amount of P300,000.00. But this promise strikes the Court, as it did the IBP investigating commissioner, as a mere ploy by the respondent to evade criminal prosecution for estafa, what with the fact that he has yet to make good his commitment to return. Respondent had shown, through his dealing with the complainant involving a tiny parcel of land, a want of professional honesty. Such misdeed reflects on the moral stuff which he is made of. His fitness to continue in the advocacy of law and manage the legal affairs of others are thus put in serious doubt too. The private nature of the transaction or the fact that the same was concluded without the respondent taking advantage of his legal profession is really of little moment. For, a lawyer may be suspended or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him wanting in honesty, probity or good demeanor. 7 While the Court agrees with the IBP Commission on Bar Discipline respecting the guilt of respondent and the propriety of a suspension, it is not, however, inclined to impose the severe recommended penalty of suspension for two (2) years. WHEREFORE, herein respondent, ATTY. ALEXANDER BULAUITAN, is found guilty of gross misconduct and dishonesty and ordered SUSPENDED from the practice of law for a period of one (1) year effective upon his receipt hereof. Let copies of this decision be spread on his record in the Bar Confidant’s Office and furnished the IBP and the Office of the Court Administrator for proper dissemination to all courts. SO ORDERED. A.C. No. 7136

August 1, 2007

JOSELANO GUEVARRA, complainant, vs. ATTY. JOSE EMMANUEL EALA, respondent. DECISION PER CURIAM: Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment 1 before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated violation of the lawyer's oath." In his complaint, Guevarra gave the following account: He first met respondent in January 2000 when his (complainant's) then-fiancee Irene Moje (Irene) introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary Ann") Tantoco with whom he had three children. After his marriage to Irene on October 7, 2000, complainant noticed that from January to March 2001, Irene had been receiving from respondent cellphone calls, as well as messages some of which read "I love you," "I miss you," or "Meet you at Megamall." Complainant also noticed that Irene habitually went home very late at night or early in the morning of the following day, and sometimes did not go home from work. When he asked about her whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy with her work. In February or March 2001, complainant saw Irene and respondent together on two occasions. On the second occasion, he confronted them following which Irene abandoned the conjugal house. On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her and respondent celebrating with her family and friends. Out of embarrassment, anger and humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house and hauled off all her personal belongings, pieces of furniture, and her share of the household appliances.

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Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000, the day of his wedding to Irene, reading: My everdearest Irene, By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do. Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us? I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU! I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again. Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS . . . AND THE WONDERFUL THINGS YOU DO! BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE! I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!" 2 Eternally yours, NOLI Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11 th Street, New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He also learned still later that when his friends saw Irene on or about January 18, 2002 together with respondent during a concert, she was pregnant. In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted letter was handwritten. On paragraph 14 of the COMPLAINT reading: 14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP as they attended social functions together. For instance, in or about the third week of September 2001, the couple attended the launch of the "Wine All You Can" promotion of French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their attendance was reported in Section B of the Manila Standard issue of 24 September 2001, on page 21. Respondent and Irene were photographed together; their picture was captioned: "Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex C. 4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their adulterous relationship" supplied), respondent, in his ANSWER, stated: 4. Respondent specifically denies having ever flaunted an adulterous relationship with Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their relationship was low profile and known only to the immediate members of their respective families, and that Respondent, as far as the general public was concerned, was still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring supplied) On paragraph 15 of the COMPLAINT reading: 15. Respondent's adulterous conduct with the complainant's wife and his apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity, making him morally unfit to keep his membership in the bar. He flaunted his aversion to the institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the love letter to complainant's

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bride on the very day of her wedding, vowing to continue his love for her "until we are together again," as now they are. 6 (Underscoring supplied), respondent stated in his ANSWER as follows: 5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding his adulterous relationship and that his acts demonstrate gross moral depravity thereby making him unfit to keep his membership in the bar, the reason being that Respondent's relationship with Irene was not under scandalous circumstances and that as far as his relationship with his own family: 5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary Anne as in fact they still occasionally meet in public, even if Mary Anne is aware of Respondent's special friendship with Irene. xxxx 5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by calling the institution of marriage a mere piece of paper because his reference [in his above-quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a piece of paper was merely with respect to the formality of the marriage contract .7 (Emphasis and underscoring supplied) Respondent admitted8 paragraph 18 of the COMPLAINT reading: 18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The Constitution regards marriage as an inviolable social institution and is the foundation of the family (Article XV, Sec. 2). 9 And on paragraph 19 of the COMPLAINT reading: 19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he, as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the complainant's wife, he mocked the institution of marriage, betrayed his own family, broke up the complainant's marriage, commits adultery with his wife, and degrades the legal profession.10 (Emphasis and underscoring supplied), respondent, in his ANSWER, stated: 7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the reason being that under the circumstances the acts of Respondent with respect to his purely personal and low profile special relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct as would be a ground for disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and underscoring supplied) To respondent's ANSWER, complainant filed a REPLY, 12 alleging that Irene gave birth to a girl and Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to the Reply, as Annex "A," a copy of a Certificate of Live Birth 13 bearing Irene's signature and naming respondent as the father of her daughter Samantha Irene Louise Moje who was born on February 14, 2002 at St. Luke's Hospital. Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS 14 dated January 10, 2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth attached to the complainant's Reply." 15 Respondent moved to dismiss the complaint due to the pendency of a civil case filed by complainant for the annulment of his marriage to Irene, and a criminal complaint for adultery against respondent and Irene which was pending before the Quezon City Prosecutor's Office. During the investigation before the IBP-CBD, complainant's Complaint-Affidavit and Reply to Answer were adopted as his testimony on direct examination.16 Respondent's counsel did not cross-examine complainant. 17 After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a 12-page REPORT AND RECOMMENDATION 18 dated October 26, 2004, found the charge against respondent sufficiently proven. The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of Canon 1 of the Code of Professional

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Responsibility reading: Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Underscoring supplied), and Rule 7.03 of Canon 7 of the same Code reading: 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. (Underscoring supplied) The IBP Board of Governors, however, annulled and set aside the Recommendation of the Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution dated January 28, 2006 briefly reading: RESOLUTION NO. XVII-2006-06 CBD Case No. 02-936 Joselano C. Guevarra vs. Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit. 20 (Italics and emphasis in the original) Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule 139 22 of the Rules of Court. The petition is impressed with merit. Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the Investigating Commissioner and dismissing the case for lack of merit, gave no reason therefor as its above-quoted 33-word Resolution shows. Respondent contends, in his Comment 23 on the present petition of complainant, that there is no evidence against him. 24 The contention fails. As the IBP-CBD Investigating Commissioner observed: While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item published in the Manila Standard (Exh. "D"), even taken together do not sufficiently prove that respondent is carrying on an adulterous relationship with complainant's wife, there are other pieces of evidence on record which support the accusation of complainant against respondent. It should be noted that in his Answer dated 17 October 2002, respondent through counsel made the following statements to wit: "Respondent specifically denies having [ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the Complaint, the truth of the matter being [that] their relationship was low profile and known only to immediate members of their respective families . . . , and Respondent specifically denies the allegations in paragraph 19 of the complaint, the reason being that under the circumstances the acts of the respondents with respect to his purely personal and low profile relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct . . ." These statements of respondent in his Answer are an admission that there is indeed a "special" relationship between him and complainant's wife, Irene, [which] taken together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-1") sufficiently prove that there was indeed an illicit relationship between respondent and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth of Samantha it should be noted that complainant's wife Irene supplied the information that respondent was the father of the child. Given the fact that the respondent admitted his special relationship with Irene there is no reason to believe that Irene would lie or make any misrepresentation regarding the paternity of the child. It should be underscored that respondent has not categorically denied that he is the father of Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied) Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void." 26

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(Italics supplied) What respondent denies is having flaunted such relationship, he maintaining that it was "low profile and known only to the immediate members of their respective families." In other words, respondent's denial is a negative pregnant, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and underscoring supplied) A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent – a "lawyer," 38 years old – as the child's father. And the phrase "NOT MARRIED" is entered on the desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature attributed to Irene in the certificate 28 with her signature on the Marriage Certificate 29 shows that they were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner noted, respondent never denied being the father of the child. Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003 Affidavit 30 which he identified at the witness stand, declared that Irene gave the information in the Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years old and a lawyer.31 Without doubt, the adulterous relationship between respondent and Irene has been sufficiently proven by more than clearly preponderant evidence – that evidence adduced by one party which is more conclusive and credible than that of the other party and, therefore, has greater weight than the other32 – which is the quantum of evidence needed in an administrative case against a lawyer. Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. . . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required.33 (Emphasis supplied) Respondent insists, however, that disbarment does not lie because his relationship with Irene was not, under Section 27 of Rule 138 of the Revised Rules of Court, reading: 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 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 disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Emphasis and underscoring supplied), under scandalous circumstances.34 The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the phrase " grossly immoral conduct," not "under scandalous circumstances." Sexual intercourse under scandalous circumstances is, following Article 334 of the Revised Penal Code reading: ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse,

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under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. x x x x, an element of the crime of concubinage when a married man has sexual intercourse with a woman elsewhere. "Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as 'grossly immoral conduct' depends on the surrounding circumstances."35 The case at bar involves a relationship between a married lawyer and a married woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is the following pronouncement of this Court in Vitug v. Rongcal:36 On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order to merit disciplinary sanction. We disagree. xxxx While it has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.37 (Emphasis and underscoring supplied) And so is the pronouncement in Tucay v. Atty. Tucay:38 The Court need not delve into the question of whether or not the respondent did contract a bigamous marriage . . . It is enough that the records of this administrative case substantiate the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e., that indeed respondent has been carrying on an illicit affair with a married woman, a grossly immoral conduct and indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.39 (Underscoring supplied) Respondent in fact also violated the lawyer's oath he took before admission to practice law which goes: I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor 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 as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Underscoring supplied) Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe mutual love, respect and fidelity, and render mutual help and support." 40 Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon 7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law." Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's petition for nullity of his (complainant's) marriage to Irene

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had been granted by Branch 106 of the Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed against respondent and Irene "based on the same set of facts alleged in the instant case," which was pending review before the Department of Justice (DOJ), on petition of complainant, had been, on motion of complainant, withdrawn. The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to Withdraw Petition for Review reads: Considering that the instant motion was filed before the final resolution of the petition for review, we are inclined to grant the same pursuant to Section 10 of Department Circular No. 70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the petitioner may withdraw the same at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has been taken."42 (Emphasis supplied by complainant) That the marriage between complainant and Irene was subsequently declared void ab initio is immaterial. The acts complained of took place before the marriage was declared null and void. 43 As a lawyer, respondent should be aware that a man and a woman deporting themselves as husband and wife are presumed, unless proven otherwise, to have entered into a lawful contract of marriage. 44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her marriage with complainant was null and void, and despite respondent himself being married, he showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a lawyer. As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly omitted to state that before complainant filed his December 23, 2003 Motion to Withdraw his Petition for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the dismissal by the Quezon City Prosecutor's Office of complainant's complaint for adultery. In reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held: Parenthetically the totality of evidence adduced by complainant would, in the fair estimation of the Department, sufficiently establish all the elements of the offense of adultery on the part of both respondents. Indeed, early on, respondent Moje conceded to complainant that she was going out on dates with respondent Eala, and this she did when complainant confronted her about Eala's frequent phone calls and text messages to her. Complainant also personally witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself was married to another woman. Moreover, Moje's eventual abandonment of their conjugal home, after complainant had once more confronted her about Eala, only served to confirm the illicit relationship involving both respondents. This becomes all the more apparent by Moje's subsequent relocation in No. 71-B, 11 th Street, New Manila, Quezon City, which was a few blocks away from the church where she had exchange marital vows with complainant. It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle and that of Moje's were always seen there. Moje herself admits that she came to live in the said address whereas Eala asserts that that was where he held office. The happenstance that it was in that said address that Eala and Moje had decided to hold office for the firm that both had formed smacks too much of a coincidence. For one, the said address appears to be a residential house, for that was where Moje stayed all throughout after her separation from complainant. It was both respondent's love nest, to put short; their illicit affair that was carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby hospital of St. Luke's Medical Center. What finally militates against the respondents is the indubitable fact that in the certificate of birth of the girl, Moje furnished the information that Eala was the father. This speaks all too eloquently of the unlawful and damning nature of the adulterous acts of the respondents. Complainant's supposed illegal procurement of the birth certificate is most certainly beside the point for both respondents Eala and Moje have not denied, in any categorical manner, that Eala is the father of the child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied) It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery were filed in court, the same would not have been a bar to the present administrative complaint. Citing the ruling in Pangan v. Ramos,46 viz: x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in

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trying criminal case47 (Italics in the original), this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held: Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006 by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE. Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility. Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts. This Decision takes effect immediately. SO ORDERED. Adm. Case [CBD 05-1434]

No.

7252

November

22,

2006

JOHNNY NG, Complainant, vs. ATTY. BENJAMIN C. ALAR, Respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before the Court is Resolution No. XVII-2006-223 dated April 27, 2006 of the IBP Board of Governors, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s propensity to resort to undeserved language and disrespectful stance, Atty. Benjamin C. Alar is hereby REPRIMANDED with a stern Warning that severe penalties will be imposed in case similar misconduct is again committed. Likewise, the counter complaint against Atty. Jose Raulito E. Paras and Atty. Elvin Michael Cruz is hereby DISMISSED for lack of merit. A verified complaint1 dated February 15, 2005 was filed by Johnny Ng (complainant) against Atty. Benjamin C. Alar (respondent) before the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline (CBD), for Disbarment. Complainant alleges that he is one of the respondents in a labor case with the National Labor Relations Commission (NLRC) docketed as NLRC NCR CA No. 040273-04, while respondent is the counsel for complainants. The Labor Arbiter (LA) dismissed the complaint. On appeal, the NLRC rendered a Decision 2 affirming the decision of the LA. Respondent filed a Motion for Reconsideration with Motion to Inhibit (MRMI),3 pertinent portions of which read: x x x We cannot help suspecting that the decision under consideration was merely copied from the pleadings of respondentsappellees with very slight modifications. But we cannot accept the suggestion, made by some knowledgeable individuals, that the actual writer of the said decision is not at all connected with the NLRC First Division. x x x Why did the NLRC, First Division, uphold the Labor Arbiter in maintaining that the separation pay should be only one half month per year of service? Is jurisprudence on this not clear enough, or is there another reason known only to them? x x x If this is not grave abuse of discretion on the part of the NLRC, First Division, it is ignominious ignorance of the law on the part of the commissioners concerned.

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The NLRC wants proof from the complainants that the fire actually resulted in prosperity and not losses. xxx Respondents failed to prove their claim of losses. And the Honorable Commissioners of the First Division lost their ability to see these glaring facts. x x x How much is the separation pay they should pay? One month per year of service – and all of it to the affected workers – not to some people in the NLRC in part. x x x They should have taken judicial notice of this prevalent practices of employers xxx. If the Honorable Commissioners, of the First Division do not know this, they are indeed irrelevant to real life. x x x we invite the Honorable Commissioners of the First Division to see for themselves the evidence before them and not merely rely on their reviewers and on the word of their ponente. If they do this honestly they cannot help seeing the truth. Yes, honesty on the part of the Commissioners concerned is what is lacking, not the evidence. Unfair labor practice stares them in the face. If labor arbiter Santos was cross-eyed in his findings of fact, the Honorable Commissioners of the First Division are doubly so – and with malice thrown in. If the workers indeed committed an illegal strike, how come their only "penalty" is removing their tent? It is obvious that the Labor Arbiter and the Honorable Commissioners know deep in their small hearts that there was no strike . This is the only reason for the finding of "illegal strike". Without this finding, they have no basis to remove the tent; they have to invent that basis. x x x The union in its "Union Reply To The Position Paper Of Management" and its Annexes has shown very clearly that the so called strike is a myth. But Commissioner Dinopol opted to believe the myth instead of the facts. He fixed his sights on the tent in front of the wall and closed his eyes to the open wide passage way and gate beside it. His eyes, not the ingress and egress of the premises, are blocked by something so thick he cannot see through it. His impaired vision cannot be trusted, no doubt about it. Commissioner Dinopol has enshrined a novel rule on money claims. Whereas, before, the established rule was, in cases of money claims the employer had the burden of proof of payment. Now it is the other way around. x x x For lack of a better name we should call this new rule the "Special Dinopol Rule". But only retirable commissioners are authorized to apply this rule and only when the money claims involved are substantial. When they are meager the ordinary rules apply. x x x how Commissioner Dinopol is able to say that the pay slips proved that the sixteen (16) claimants were already paid their service incentive leave pay. This finding is copied verbatim from the cross-eyed decision of Labor Arbiter Santos x x x . The evidence already on record proving that the alleged blocking of the ingress and egress is a myth seem invisible to the impaired sight of Commissioner Dinopol. He needs more of it. x x x Commissioner Dinopol by his decision under consideration (as ponente [of] the decision that he signed and caused his cocommissioners in the First Division to sign) has shown great and irreparable impartiality, grave abuse of discretion and ignorance of the law. He is a shame to the NLRC and should not be allowed to have anything to do with the instant case any more. Commissioner Go and Chairman Señeres, by negligence, are just as guilty as Dinopol but, since the NLRC rules prohibit the inhibition of the entire division, Chairman Señeres should remain in the instant case and appoint two (2) other commissioners from another division to sit with him and pass final judgment in the instant case. 4 (Emphasis supplied) In his Answer with Counter-Complaint dated April 6, 2005, respondent Alar contends that the instant complaint only intends to harass him and to influence the result of the cases between complainant and the workers in the different fora where they are pending; that the Rules of Court/Code of Professional Responsibility applies only suppletorily at the NLRC when the NLRC Rules of Procedure has no provision on disciplinary matters for litigants and lawyers appearing before it; that Rule X of the NLRC Rules of Procedure provides for adequate sanctions against misbehaving lawyers and litigants appearing in cases before it; that the Rules of Court/Code of Professional Responsibility does not apply to lawyers practicing at the NLRC, the latter not being a court; that LAs and NLRC Commissioners are not judges nor justices and the Code of Judicial Conduct similarly do not apply to them, not being part of the judiciary; and that the labor lawyers who are honestly and conscientiously practicing before the NLRC and get paid on a contingent basis are entitled to some latitude of righteous anger when they get cheated in their cases by reason of corruption and collusion by the cheats from the other sectors who make their lives and the lives of their constituents miserable, with impunity, unlike lawyers for the employers who get paid, win or lose, and therefore have no reason to feel aggrieved. 5 Attached to the Counter-Complaint is the affidavit of union president Marilyn Batan wherein it is alleged that Attys. Paras and Cruz

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violated the Code of Professional Responsibility of lawyers in several instances, such that while the labor case is pending before the NLRC, respondents Paras and Cruz filed a new case against the laborers in the Office of the City Engineer of Quezon City (QC) to demolish the tent of the workers, thus splitting the jurisdiction between the NLRC and the City Engineer's Office (CEO) of QC which violates Canon 12, Rules 12.02 and 13.03; that although Ng signed the disbarment complaint against Alar, respondents Paras’s and Cruz’s office instigated the said complaint which violates Canon 8; that Ng's company did not pay income tax for the year 2000 allegedly for non-operation due to fire and respondents consented to this act of the employer which violates Canon 19, Rule 19.02; and that when the case started, there were more or less 100 complainants, but due to the acts of the employer and the respondents, the number of complainants were reduced to almost half which violates Canon 19, Rule 19-01, 19-02 and 19-03. 6 In Answer to the Counter-Complaint dated April 14, 2005, 7 respondents Paras and Cruz alleged: At no time did they file multiple actions arising from the same cause of action or brook interference in the normal course of judicial proceedings; the reliefs sought before the CEO has nothing to do with the case pending before the NLRC; the demolition of the nuisance and illegal structures is a cause of action completely irrelevant and unrelated to the labor cases of complainant; the CEO was requested to investigate certain nuisance structures located outside the employer's property, which consist of shanties, tents, banners and other paraphernalia which hampered the free ingress to and egress out of the employer's property and present clear and present hazards; the Office of the City Engineer found the structures violative of pertinent DPWH and MMDA ordinances; the pendency of a labor case with the NLRC is completely irrelevant since the holding of a strike, legal or not, did not validate or justify the construction of illegal nuisance structures; the CEO proceeded to abate the nuisance structures pursuant to its power to protect life, property and legal order; it was not their idea to file the disbarment complaint against respondent Alar; they merely instructed their client on how to go about filing the case, after having been served a copy of the derogatory MRMI; Canon 8 should not be perceived as an excuse for lawyers to turn their backs on malicious acts done by their brother lawyers; the complaint failed to mention that the only reason the number of complainants were reduced is because of the amicable settlement they were able to reach with most of them; their engagement for legal services is only for labor and litigation cases; at no time were they consulted regarding the tax concerns of their client and therefore were never privy to the financial records of the latter; at no time did they give advice regarding their client's tax concerns; respondent Alar's attempt at a disbarment case against them is unwarranted, unjustified and obviously a mere retaliatory action on his part. The case, docketed as CBD Case No. 05-1434, was assigned by the IBP to Commissioner Patrick M. Velez for investigation, report and recommendation. In his Report and Recommendation, the Investigating Commissioner found respondent guilty of using improper and abusive language and recommended that respondent be suspended for a period of not less than three months with a stern warning that more severe penalty will be imposed in case similar misconduct is again committed. On the other hand, the Investigating Commissioner did not find any actionable misconduct against Attys. Paras and Cruz and therefore recommended that the Counter-Complaint against them be dismissed for lack of merit. Acting on the Report and Recommendation, the IBP Board of Governors issued the Resolution hereinbefore quoted. While the Court agrees with the findings of the IBP, it does not agree that respondent Alar deserves only a reprimand. The Code of Professional Responsibility mandates: CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 — A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. CANON 11 – A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. Rule 11.03 – A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Rule 11.04 – A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. The MRMI contains insults and diatribes against the NLRC, attacking both its moral and intellectual integrity, replete with implied accusations of partiality, impropriety and lack of diligence. Respondent used improper and offensive language in his pleadings that does not admit any justification. In Lacurom v. Jacoba,8 the Court ratiocinated as follows:

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Well-recognized is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. However, even the most hardened judge would be scarred by the scurrilous attack made by the 30 July 2001 motion on Judge Lacurom's Resolution. On its face, the Resolution presented the facts correctly and decided the case according to supporting law and jurisprudence. Though a lawyer's language may be forceful and emphatic, it should always be dignified and respectful, befitting the dignity of the legal profession. The use of unnecessary language is proscribed if we are to promote high esteem in the courts and trust in judicial administration. In Uy v. Depasucat,9 the Court held that a lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive.10 A lawyer's language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession. 11 Submitting pleadings containing countless insults and diatribes against the NLRC and attacking both its moral and intellectual integrity, hardly measures to the sobriety of speech demanded of a lawyer. Respondent's assertion that the NLRC not being a court, its commissioners, not being judges or justices and therefore not part of the judiciary; and that consequently, the Code of Judicial Conduct does not apply to them, is unavailing. In Lubiano v. Gordolla,12 the Court held that respondent became unmindful of the fact that in addressing the NLRC, he nonetheless remained a member of the Bar, an oathbound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of law and ethics.13 Respondent’s argument that labor practitioners are entitled to some latitude of righteous anger is unavailing. It does not deter the Court from exercising its supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the Bar.14 The Court held in Rheem of the Philippines v. Ferrer,15 thus: 2. What we have before us is not without precedent. Time and again, this Court has admonished and punished, in varying degrees, members of the Bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this Court or the lower courts. Resort by an attorney – in a motion for reconsideration – to words which may drag this Court down into disrepute, is frowned upon as "neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in the motion" are "sufficient," and such words "superfluous." It is in this context that we must say that just because Atty. Armonio "thought best to focus the attention" of this Court "to the issue in the case" does not give him unbridled license in language. To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Court’s attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive. To be proscribed then is the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration, or which could have the effect of "harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief." Stability of judicial institutions suggests that the Bar stand firm on this precept. The language here in question, respondents aver, "was the result of overenthusiasm." It is but to repeat an old idea when we say that enthusiasm, or even excess of it, is not really bad. In fact, the one or the other is no less a virtue, if channeled in the right direction. However, it must be circumscribed within the bounds of propriety and with due regard for the proper place of courts in our system of government.16 Respondent has clearly violated Canons 8 and 11 of the Code of Professional Responsibility. His actions erode the public’s perception of the legal profession. However, the penalty of reprimand with stern warning imposed by the IBP Board of Governors is not proportionate to respondent’s violation of the Canons of the Code of Professional Responsibility. Thus, he deserves a stiffer penalty of fine in the amount of P5,000.00. Anent the Counter-Complaint filed against Attys. Paras and Cruz, the Court finds no reason to disturb the following findings and

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recommendation of the Investigating Commissioner, as approved by the IBP Board of Governors, to wit: The Counter-complainant Batan failed to submit any position paper to substantiate its claims despite sufficient opportunity to do so.1âwphi1 At any rate, it must be noted that the alleged case with the Office of the City Engineer really partakes of a different cause of action, which has nothing to do with the NLRC case. The decision was made by the city engineer. Respondent’s remedy should be to question that decision, not bring it to this Commission which has no jurisdiction over it. We can not substitute our judgment for the proper courts who should determine the propriety or sagacity of the city engineer’s action. Furthermore, parties are not prohibited from availing themselves of remedies available in law provided; these acts do not exceed the bounds of decency. In supporting the action against respondent’s conduct, no such abuse may be gleaned. Indeed, it is the attorney’s duty as an officer of the court to defend a judge from unfounded criticism or groundless personal attack. This requires of him not only to refrain from subjecting the judge to wild and groundless accusation but also to discourage other people from so doing and to come to his defense when he is so subjected. By the very nature of his position a judge lacks the power, outside of his court, to defend himself against unfounded criticism and clamor and it is the attorney, and no other, who can better or more appropriately support the judiciary and the incumbents of the judicial positions. (Agpalo, p. 143 citing People v. Carillo, 77 Phil. 572 (1946); Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); see Cabansag v. Fernandez, 102 Phil. 152 (1957) Whether the disbarment complaint was filed by Ng or by his lawyers is therefore not of great import, what is more apropos would be the contents of the complaint and whether the same is sufficient to consider disciplinary sanctions. Likewise, the tax case is a different matter altogether. Since the respondent lawyers have already stated that they were not engaged as counsels to take care of their client’s tax problems, then they cannot be held accountable for the same. If any wrongdoing has been committed by complainant Ng, he should answer for that and those lawyers who were responsible for such acts be held liable jointly. There is no showing [that] attorneys Paras and Cruz were responsible for that tax fiasco.1âwphi1 Finally, while it may be true that Batan’s group has been greatly diminished from about 100 claimants to less than half the number is not by itself an actionable misconduct. Lawyers are duty bound to foster amicable settlement of cases; litigation and adversarial proceedings while a necessary part of the practice is not encouraged, because it will save expenses and help unclogged [sic] the dockets. If the compromise is fair then there is no reason to prevent the same. There is nothing in the counter-complaint which shows that the compromise agreement and waivers executed appear to be unfair, hence no reason to hold lawyers liable for the same. Besides, a "compromise is as often the better part of justice as prudence the part of valor and a lawyer who encourages compromise is no less the client’s champion in settlement out of court than he is the client’s champion in the battle in court." (Curtis, The Advocate: Voices in Court, 5 (1958); cited in Agpalo’s Legal Ethics, p. 86, 1980 ed.) What is therefore respondent Alar[‘]s beef with the execution of these waivers if these were executed freely by his clients? All told, we do not find anything actionable misconduct against Attorneys Paras and Cruz; hence the dismissal of the counter-complaint against them is proper for absolute lack of merit. 17 ACCORDINGLY, we find respondent Atty. Benjamin C. Alar GUILTY of violation of Canons 8 and 11 of the Code of Professional Responsibility. He is imposed a fine of P5,000.00 with STERN WARNING that a repetition of the same or similar act in the future will be dealt with more severely. The Counter-Complaint against Atty. Jose Raulito E. Paras and Atty. Elvin Michael Cruz is DISMISSED for lack of merit. SO ORDERED.

ROSALIE DALLONG-GALICINAO,

A.C. No. 6396

Complainant,

Present:

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PUNO, J., Chairman, -

versus -

AUSTRIA-MARTINEZ, CALLEJO, TINGA, and CHICO-NAZARIO, JJ.

ATTY. VIRGIL R. CASTRO, Respondent,

Promulgated:

October 25, 2005

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

RESOLUTION

TINGA, J.:

This administrative case concerns a lawyer who hurled invectives at a Clerk of Court. Members of the bar decorum must at all times comfort themselves in a manner befitting their noble profession.

Complainant Atty. Rosalie Dallong-Galicinao is the Clerk of Court of the Regional Trial Court (RTC) of Bambang, Nueva Vizcaya. On 8 May 2003, she filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) a ComplaintAffidavit[1] with supporting documents[2] against respondent Atty. Virgil R. Castro for Unprofessional Conduct, specifically violation of Canon 7, Rule 7.03, Canon 8 and Rule 8.02 of the Code of Professional Responsibility.[3] The charge in the complaint is summed up as follows:

Respondent Atty. Castro was a private practitioner and Vice-President of IBP-Nueva Vizcaya Chapter. On 5 May 2003, respondent went to complainant’s office to inquire whether the complete records of Civil Case No. 784, entitled Sps. Crispino Castillano v. Sps.

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Federico S. Castillano and Felicidad Aberin, had already been remanded to the court of origin, MCTC Dupax del Norte, Alfonso Castaned, Nueva Vizcaya. It must be noted that respondent was not the counsel of record of either party in Civil Case No. 784.

Complainant informed respondent that the record had not yet been transmitted since a certified true copy of the decision of the Court of Appeals should first be presented to serve as basis for the transmittal of the records to the court of origin. To this respondent retorted scornfully, “Who will certify the Court of Appeals’ Decision, the Court of Appeals? You mean to say, I would still have to go to Manila to get a certified true copy?” Surprised at this outburst, complainant replied, “Sir, it’s in the Rules but you could show us the copy sent to the party you claim to be representing.” Respondent then replied, “Then you should have notified me of the said requirement. That was two weeks ago and I have been frequenting your office since then, but you never bothered to notify me.” Complainant replied, “It is not our duty, Sir, to notify you of the said requirement.”

Respondent then answered, “You mean to say it is not your duty to remand the record of the case?” Complainant responded, “No, Sir, I mean, it’s not our duty to notify you that you have to submit a copy of the Court of Appeals’ decision.” Respondent angrily declared in Ilocano, “Kayat mo nga saw-en, awan pakialam yon? Kasdiay?” (“You mean to say you don’t care anymore? Is that the way it is?”) He then turned and left the office, banging the door on his way out to show his anger. The banging of the door was so loud it was heard by the people at the adjacent RTC, Branch 30 where a hearing was taking place.[4]

After a few minutes, respondent returned to the office, still enraged, and pointed his finger at complainant and shouted, “ Ukinnan, no adda ti unget mo iti kilientek haan mo nga ibales kaniak ah!” (“Vulva of your mother! If you are harboring ill feelings against my client, don’t turn your ire on me!”) Complainant was shocked at respondent’s words but still managed to reply, “I don’t even know your client, Sir.” Respondent left the office and as he passed by complainant’s window, he again shouted, “ Ukinnam nga babai!” (“Vulva of your mother, you woman!”)[5]

Complainant suffered acute embarrassment at the incident, as it happened in her office of which she was, and still is, the head and in front of her staff. She felt that her credibility had been tarnished and diminished, eliciting doubt on her ability to command full respect from her staff.[6]

The Complaint-Affidavit, filed three days after the incident, was supported by an Affidavit[7] signed by employees of RTC-Bambang, Nueva Vizcaya who witnessed the incident. The Affidavit narrated the same incident as witnessed by the said employees. A Motion to File Additional Affidavit/Documentary Evidence was filed by complainant on 25 September 2003.[8]

On 26 May 2003, the CBD-IBP issued an Order[9] requiring respondent to submit his answer to the complaint. Respondent submitted his Compliance[10] dated 18 June 2003. Respondent explained that he was counsel for the plaintiffs in Civil Case No. 847,

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entitled Sps. Federico Castillano, et al. v. Sps. Crispin Castillano, et al., filed with the RTC of Nueva Vizcaya, Branch 30. He learned of the finality of the decision of the Court of Appeals in CA-G.R. No. 64962 with respect to Civil Case No. 847 before the lower court. Prior to the incident, he went to the office of the complainant to request for the transmittal of the records of the case to the MCTC and the complainant reassured him of the same.

Respondent admits having inquired about the status of the transmittal of the records on 5 May 2003. However, he has no explanation as to what transpired on that day. Instead, he narrates that on 25 May 2003, twelve days after the incident, the records had not yet been transmitted, and he subsequently learned that these records were returned to the court of origin.

The hearing for the administrative complaint before the CBD was set on 25 September 2003 by the Investigating Commissioner Milagros V. San Juan. However, on said date, only complainant appeared. The latter also moved that the case be submitted for resolution. [11] Respondent later on filed a Manifestation stating that the reason for his non-appearance was because he was still recuperating from physical injuries and that he was not mentally fit to prepare the required pleadings as his vehicle was rained with bullets on 19 August 2003. He also expressed his public apology to the complainant in the same Manifestation.[12]

Complainant filed a Manifestation expressing her desire not to appear on the next hearing date in view of respondent’s public apology, adding that respondent personally and humbly asked for forgiveness which she accepted.[13]

The Investigating Commissioner recommended that respondent be reprimanded and warned that any other complaint for breach of his professional duties shall be dealt with more severely.[14] The IBP submitted to this Court a Notice of Resolution adopting and approving the recommendation of the Investigating Commissioner.[15]

At the onset, it should be noted that respondent was not the counsel of record of Civil Case No. 784. Had he been counsel of record, it would have been easy for him to present the required certified true copy of the decision of the Court of Appeals. He need not have gone to Manila to procure a certified true copy of the decision since the Court of Appeals furnishes the parties and their counsel of record a duplicate original or certified true copy of its decision.

His explanation that he will enter his appearance in the case when its records were already transmitted to the MCTC is unacceptable. Not being the counsel of record and there being no authorization from either the parties to represent them, respondent had no right to impose his will on the clerk of court.

Rule 8.02 of the Code of Professional Responsibility states:

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Rule 8.02—A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.

Through his acts of constantly checking the transmittal of the records of Civil Case No. 784, respondent deliberately encroached upon the legal functions of the counsel of record of that case. It does not matter whether he did so in good faith.

Moreover, in the course of his questionable activities relating to Civil Case No. 784, respondent acted rudely towards an officer of the court. He raised his voice at the clerk of court and uttered at her the most vulgar of invectives. Not only was it ill-mannered but also unbecoming considering that he did all these to a woman and in front of her subordinates.

As held in Alcantara v. Atty. Pefianco,[16] respondent ought to have realized that this sort of public behavior can only bring down the legal profession in the public estimation and erode public respect for it.[17] These acts violate Rule 7.03, Canon 8 and Rule 8.01, to wit:

Rule 7.03 — A lawyer shall not engage in conduct that adversely reflect on his fitness to practice law, now shall he, whether in public or private life behave in scandalous manner to the discredit of the legal profession. Canon 8 — A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 — A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

Moreover, Canon 8 of the Code of Professional Responsibility demands that lawyers conduct themselves with courtesy, fairness and candor toward their fellow lawyers. Lawyers are duty bound to uphold the dignity of the legal profession. They must act honorably, fairly and candidly towards each other and otherwise conduct themselves without reproach at all times.[18] As correctly evaluated by the Investigating Commissioner, respondent did not categorically deny the charges in the complaint. Instead, he gave a lengthy narration of the prefatory facts of the case as well as of the incident on 5 May 2003.

Complainant also alleged in her Complaint-Affidavit that respondent’s uncharacteristic behavior was not an isolated incident. He has supposedly done the same to Attys. Abraham Johnny G. Asuncion and Temmy Lambino, the latter having filed a case against respondent pending before this Court.[19] We, however, cannot acknowledge such allegation absent any evidence showing the veracity of such claim. No affidavits to that effect were submitted by either Atty. Asuncion or Atty. Lambino.

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Nonetheless, the penalty to be imposed should be tempered owing to the fact that respondent had apologized to the complainant and the latter had accepted it. This is not to say, however, that respondent should be absolved from his actuations. People are accountable for the consequences of the things they say and do even if they repent afterwards. The fact remains that things done cannot be undone and words uttered cannot be taken back. Hence, he should bear the consequences of his actions.

The highest reward that can be bestowed on lawyers is the esteem of their brethren. This esteem cannot be purchased, perfunctorily created, or gained by artifice or contrivance. It is born of sharp contexts and thrives despite conflicting interest. It emanates solely from integrity, character, brains and skills in the honorable performance of professional duty.[20]

WHEREFORE, premises considered, respondent is hereby FINED in the amount of TEN THOUSAND (P10,000.00) PESOS with a warning that any similar infraction with be dealt with more severely. Let a copy of this Decision be furnished the Bar Confidant for appropriate annotation in the record of the respondent.

[A.C. No. 5148. July 1, 2003] Atty. RAMON P. REYES, complainant, vs. Atty. VICTORIANO T. CHIONG JR., respondent. DECISION PANGANIBAN, J.: Lawyers should treat each other with courtesy, dignity and civility. The bickering and the hostility of their clients should not affect their conduct and rapport with each other as professionals and members of the bar. The Case Before us is a Sworn Complaint[1] filed by Atty. Ramon P. Reyes with the Office of the Bar Confidant of this Court, seeking the disbarment of Atty. Victoriano T. Chiong Jr. for violation of his lawyer’s oath and of Canon 8 of the Code of Professional Responsibility. After the Third Division of this Court referred the case to the Integrated Bar of the Philippines (IBP), the IBP Commission on Bar Discipline resolved to suspend him as follows: “x x x [C]onsidering that respondent is bound by his oath which binds him to the obligation that he will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same. In addition, Canon 8 of the Code of Professional Responsibility provides that a lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel. In impleading complainant and Prosecutor Salanga in Civil Case No. 4884, when it was apparent that there was no legal ground to do so, respondent violated his oath of office as well as the above-quoted Canon of the Code of Professional Responsibility, [r]espondent is hereby SUSPENDED from the practice of law for two (2) years.”[2] The Facts In his Complaint, Atty. Reyes alleges that sometime in January 1998, his services were engaged by one Zonggi Xu,[3] a ChineseTaiwanese, in a business venture that went awry. Xu invested P300,000 on a Cebu-based fishball, tempura and seafood products factory being set up by a certain Chia Hsien Pan, another Chinese-Taiwanese residing in Zamboanga City. Eventually, the former discovered that the latter had not established a fishball factory. When Xu asked for his money back, Pan became hostile, making it necessary for the former to seek legal assistance. Xu, through herein complainant, filed a Complaint for estafa against Pan, who was represented by respondent. The Complaint, docketed

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as IS 98J-51990, was assigned to Assistant Manila City Prosecutor Pedro B. Salanga, who then issued a subpoena for Pan to appear for preliminary investigation on October 27 and 29, 1998. The latter neither appeared on the two scheduled hearings nor submitted his counter-affidavit. Hence, Prosecutor Salanga filed a Criminal Complaint[4] for estafa against him before the Regional Trial Court (RTC) of Manila.[5] On April 8, 1999, the Manila RTC issued a Warrant of Arrest[6] against Pan. Thereafter, respondent filed an Urgent Motion to Quash the Warrant of Arrest.[7] He also filed with the RTC of Zamboanga City a Civil Complaint for the collection of a sum of money and damages as well as for the dissolution of a business venture against complainant, Xu and Prosecutor Salanga. When confronted by complainant, respondent explained that it was Pan who had decided to institute the civil action against Atty. Reyes. Respondent claimed he would suggest to his client to drop the civil case, if complainant would move for the dismissal of the estafa case. However, the two lawyers failed to reach a settlement. In his Comment[8] dated January 27, 2000, respondent argued that he had shown no disrespect in impleading Atty. Reyes as co-defendant in Civil Case No. 4884. He claimed that there was no basis to conclude that the suit was groundless, and that it had been instituted only to exact vengeance. He alleged that Prosecutor Salanga was impleaded as an additional defendant because of the irregularities the latter had committed in conducting the criminal investigation. Specifically, Prosecutor Salanga had resolved to file the estafa case despite the pendency of Pan’s Motion for an Opportunity to Submit Counter-Affidavits and Evidence,[9] of the appeal[10] to the justice secretary, and of the Motion to Defer/Suspend Proceedings.[11] On the other hand, complainant was impleaded, because he allegedly connived with his client (Xu) in filing the estafa case, which the former knew fully well was baseless. According to respondent, the irregularities committed by Prosecutor Salanga in the criminal investigation and complainant’s connivance therein were discovered only after the institution of the collection suit. The Third Division of this Court referred the case to the IBP for investigation, report and recommendation.[12] Thereafter, the Board of Governors of the IBP passed its June 29, 2002 Resolution.[13] Report and Recommendation of the IBP In her Report and Recommendation,[14] Commissioner Milagros V. San Juan, to whom the case was assigned by the IBP for investigation and report, averred that complainant and Prosecutor Salanga had been impleaded in Civil Case No. 4884 on the sole basis of the Criminal Complaint for estafa they had filed against respondent’s client. In his Comment, respondent himself claimed that “the reason x x x was x x x the irregularities of the criminal investigation/connivance and consequent damages.” Commissioner San Juan maintained that the collection suit with damages had been filed purposely to obtain leverage against the estafa case, in which respondent’s client was the defendant. There was no need to implead complainant and Prosecutor Salanga, since they had never participated in the business transactions between Pan and Xu. Improper and highly questionable was the inclusion of the prosecutor and complainant in the civil case instituted by respondent on the alleged prodding of his client. Verily, the suit was filed to harass complainant and Prosecutor Salanga. Commissioner San Juan held that respondent had no ground to implead Prosecutor Salanga and complainant in Civil Case No. 4884. In so doing, respondent violated his oath of office and Canon 8 of the Code of Professional Responsibility. The IBP adopted the investigating commissioner’s recommendation for his suspension from the practice of law for two (2) years. This Court’s Ruling We agree with the IBP’s recommendation. Lawyers are licensed officers of the courts who are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.[15] Membership in the bar imposes upon them certain obligations. Mandated to maintain the dignity of the legal profession, they must conduct themselves honorably and fairly. Moreover, Canon 8 of the Code of Professional Responsibility provides that “[a] lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.” Respondent’s actions do not measure up to this Canon. Civil Case No. 4884 was for the “collection of a sum of money, damages and dissolution of an unregistered business venture.” It had originally been filed against Spouses Xu, but was later modified to include complainant and Prosecutor Salanga.

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The Amended and Supplemental Complaints[16] alleged the following: “27. The investigating prosecutor defendant Pedro Salanga knowingly and deliberately refused and failed to perform his duty enjoined by the law and the Constitution to afford plaintiff Chia Hsien Pan due process by violating his rights under the Rules on preliminary investigations; he also falsely made a Certification under oath that preliminary investigation was duly conducted and plaintiff [was] duly informed of the charges against him but did not answer; he maliciously and x x x partially ruled that there was probable cause and filed a Criminal Information for estafa against plaintiff Chia Hsien Pan, knowing fully [well] that the proceedings were fatally defective and null and void; x x x; “28. Said assistant prosecutor, knowing also that plaintiff Chia Hsien Pan filed said appeal and motion to defer for the valid grounds stated therein deliberately refused to correct his errors and consented to the arrest of said plaintiff under an invalid information and warrant of arrest. “29. Defendant Atty. Ramon Reyes, knowing that the suit of defendant Zongoi Xu is baseless connived with the latter to harass and extort money from plaintiff Chia Hsien Pan by said criminal prosecution in the manner contrary to law, morals and public policy, resulting to the arrest of said plaintiff and causing plaintiffs grave irreparable damages[.]”[17] We concur with the IBP that the amendment of the Complaint and the failure to resort to the proper remedies strengthen complainant’s allegation that the civil action was intended to gain leverage against the estafa case. If respondent or his client did not agree with Prosecutor Salanga’s resolution, they should have used the proper procedural and administrative remedies. Respondent could have gone to the justice secretary and filed a Motion for Reconsideration or a Motion for Reinvestigation of Prosecutor Salanga’s decision to file an information for estafa. In the trial court, a Motion to Dismiss was available to him if he could show that the estafa case was filed without basis. Moreover, he could have instituted disbarment proceedings against complainant and Prosecutor Salanga, if he believed that the two had conspired to act illegally. As a lawyer, respondent should have advised his client of the availability of these remedies. Thus, the filing of the civil case had no justification. The lack of involvement of complainant and Prosecutor Salanga in the business transaction subject of the collection suit shows that there was no reason for their inclusion in that case. It appears that respondent took the estafa case as a personal affront and used the civil case as a tool to return the inconvenience suffered by his client. His actions demonstrate a misuse of the legal process. The aim of every lawsuit should be to render justice to the parties according to law, not to harass them.[18] Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility. A great part of their comfort, as well as of their success at the bar, depends upon their relations with their professional brethren. Since they deal constantly with each other, they must treat one another with trust and respect. Any undue ill feeling between clients should not influence counsels in their conduct and demeanor toward each other. Mutual bickering, unjustified recriminations and offensive behavior among lawyers not only detract from the dignity of the legal profession,[19] but also constitute highly unprofessional conduct subject to disciplinary action. Furthermore, the Lawyer’s Oath exhorts law practitioners not to “wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same.” Respondent claims that it was his client who insisted in impleading complainant and Prosecutor Salanga. Such excuse is flimsy and unacceptable. While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the law or any manner of fraud or chicanery.[20] Their rendition of improper service invites stern and just condemnation. Correspondingly, they advance the honor of their profession and the best interests of their clients when they render service or give advice that meets the strictest principles of moral law.[21] The highest reward that can be bestowed on lawyers is the esteem of their professional brethren. This esteem cannot be purchased, perfunctorily created, or gained by artifice or contrivance. It is born of sharp contests and thrives despite conflicting interests. It emanates solely from integrity, character, brains and skill in the honorable performance of professional duty.[22] WHEREFORE, respondent is found guilty as charged and is hereby SUSPENDED for two (2) years from the practice of law, effective immediately. SO ORDERED.

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ANA MARIE CAMBALIZA,

Adm. Case No. 6290 Complainant, Present:

DAVIDE, JR., C.J., - versus -

PANGANIBAN, SANTIAGO, CARPIO, and AZCUNA, JJ.

ATTY. ANA LUZ B. CRISTAL-TENORIO, Respondent.

Promulgated:

July 14, 2004 X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

RESOLUTION

DAVIDE, JR., C.J.:

In a verified complaint for disbarment filed with the Committee on Bar Discipline of the Integrated Bar of the Philippines (IBP) on 30 May 2000, complainant Ana Marie Cambaliza, a former employee of respondent Atty. Ana Luz B. Cristal-Tenorio in her law office, charged the latter with deceit, grossly immoral conduct, and malpractice or other gross misconduct in office.

On deceit, the complainant alleged that the respondent has been falsely representing herself to be married to Felicisimo R. Tenorio, Jr., who has a prior and subsisting marriage with another woman. However, through spurious means, the respondent and Felicisimo R. Tenorio, Jr., were able to obtain a false marriage contract, [1] which states that they were married on 10 February 1980 in Manila. Certifications from the Civil Registry of Manila[2] and the National Statistics Office (NSO)[3] prove that no record of marriage exists between them. The false date and place of marriage between the two are stated in the birth certificates of their two children, Donnabel Tenorio[4] and Felicisimo Tenorio III.[5] But in the birth certificates of their two other children, Oliver Tenorio[6] and John Cedric Tenorio,[7] another date and place of marriage are indicated, namely, 12 February 1980 in Malaybalay, Bukidnon.

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As to grossly immoral conduct, the complainant alleged that the respondent caused the dissemination to the public of a libelous affidavit derogatory to Makati City Councilor Divina Alora Jacome. The respondent would often openly and sarcastically declare to the complainant and her co-employees the alleged immorality of Councilor Jacome.

On malpractice or other gross misconduct in office, the complainant alleged that the respondent (1) cooperated in the illegal practice of law by her husband, who is not a member of the Philippine Bar; (2) converted her client’s money to her own use and benefit, which led to the filing of an estafa case against her; and (3) threatened the complainant and her family on 24 January 2000 with the statement “Isang bala ka lang” to deter them from divulging respondent’s illegal activities and transactions.

In her answer, the respondent denied all the allegations against her. As to the charge of deceit, she declared that she is legally married to Felicisimo R. Tenorio, Jr. They were married on 12 February 1980 as shown by their Certificate of Marriage, Registry No. 2000-9108 of the Civil Registry of Quezon City.[8] Her husband has no prior and subsisting marriage with another woman.

As to the charge of grossly immoral conduct, the respondent denied that she caused the dissemination of a libelous and defamatory affidavit against Councilor Jacome. On the contrary, it was Councilor Jacome who caused the execution of said document. Additionally, the complainant and her cohorts are the rumormongers who went around the city of Makati on the pretext of conducting a survey but did so to besmirch respondent’s good name and reputation.

The charge of malpractice or other gross misconduct in office was likewise denied by the respondent. She claimed that her Cristal-Tenorio Law Office is registered with the Department of Trade and Industry as a single proprietorship, as shown by its Certificate of Registration of Business Name.[9] Hence, she has no partners in her law office. As to the estafa case, the same had already been dropped pursuant to the Order of 14 June 1996 issued by Branch 103 of the Regional Trial Court of Quezon City.[10] The respondent likewise denied that she threatened the complainant with the words “Isang bala ka lang” on 24 January 2000.

Further, the respondent averred that this disbarment complaint was filed by the complainant to get even with her. She terminated complainant’s employment after receiving numerous complaints that the complainant extorted money from different people with the promise of processing their passports and marriages to foreigners, but she reneged on her promise. Likewise, this disbarment complaint is politically motivated: some politicians offered to re-hire the complainant and her cohorts should they initiate this complaint, which they did and for which they were re-hired. The respondent also flaunted the fact that she had received numerous awards and citations for civic works and exemplary service to the community. She then prayed for the dismissal of the disbarment case for being baseless.

The IBP referred this case to Investigating Commissioner Atty. Kenny H. Tantuico.

During the hearing on 30 August 2000, the parties agreed that the complainant would submit a Reply to respondent’s Answer, while the respondent would submit a Rejoinder to the Reply. The parties also agreed that the Complaint, Answer, and the attached affidavits would constitute as the respective direct testimonies of the parties and the affiants.[11]

In her Reply, the complainant bolstered her claim that the respondent cooperated in the illegal practice of law by her husband

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by submitting (1) the letterhead of Cristal-Tenorio Law Office[12] where the name of Felicisimo R. Tenorio, Jr., is listed as a senior partner; and (2) a Sagip Communication Radio Group identification card[13] signed by the respondent as Chairperson where her husband is identified as “Atty. Felicisimo R. Tenorio, Jr.” She added that respondent’s husband even appeared in court hearings.

In her Rejoinder, respondent averred that she neither formed a law partnership with her husband nor allowed her husband to appear in court on her behalf. If there was an instance that her husband appeared in court, he did so as a representative of her law firm. The letterhead submitted by the complainant was a false reproduction to show that her husband is one of her law partners. But upon cross-examination, when confronted with the letterhead of Cristal-Tenorio Law Office bearing her signature, she admitted that Felicisimo R. Tenorio, Jr., is not a lawyer, but he and a certain Gerardo A. Panghulan, who is also not a lawyer, are named as senior partners because they have investments in her law office.[14]

The respondent further declared that she married Felicisimo R. Tenorio, Jr., on 12 February 1980 in Quezon City, but when she later discovered that their marriage contract was not registered she applied for late registration on 5 April 2000. She then presented as evidence a certified copy of the marriage contract issued by the Office of the Civil Registrar General and authenticated by the NSO. The erroneous entries in the birth certificates of her children as to the place and date of her marriage were merely an oversight.[15]

Sometime after the parties submitted their respective Offer of Evidence and Memoranda, the complainant filed a Motion to Withdraw Complaint on 13 November 2002 after allegedly realizing that this disbarment complaint arose out of a misunderstanding and misappreciation of facts. Thus, she is no longer interested in pursuing the case. This motion was not acted upon by the IBP.

In her Report and Recommendation dated 30 September 2003, IBP Commissioner on Bar Discipline Milagros V. San Juan found that the complainant failed to substantiate the charges of deceit and grossly immoral conduct. However, she found the respondent guilty of the charge of cooperating in the illegal practice of law by Felicisimo R. Tenorio, Jr., in violation of Canon 9 and Rule 9.01 of the Code of Professional Responsibility based on the following evidence: (1) the letterhead of CristalTenorio Law Office, which lists Felicisimo R. Tenorio, Jr., as a senior partner; (2) the Sagip Communication Radio Group identification card of “Atty. Felicisimo R. Tenorio, Jr.,” signed by respondent as Chairperson; (3) and the Order dated 18 June 1997 issued by the Metropolitan Trial Court in Criminal Cases Nos. 20729 – 20734, wherein Felicisimo R. Tenorio, Jr., entered his appearance as counsel and even moved for the provisional dismissal of the cases for failure of the private complainants to appear and for lack of interest to prosecute the said cases. Thus, Commissioner San Juan recommended that the respondent be reprimanded.

In its Resolution No. XVI-2003-228 dated 25 October 2003, the IBP Board of Governors adopted and approved with modification the Report and Recommendation of Commissioner San Juan. The modification consisted in increasing the penalty from reprimand to suspension from the practice of law for six months with a warning that a similar offense in the future would be dealt with more severely.

We agree with the findings and conclusion of Commissioner San Juan as approved and adopted with modification by the Board of Governors of the IBP.

At the outset, we find that the IBP was correct in not acting on the Motion to Withdraw Complaint filed by complainant

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Cambaliza. In Rayos-Ombac vs. Rayos,[16] we declared:

The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. 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 attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.

Hence, notwithstanding the Motion to Withdraw Complaint, this disbarment case should proceed accordingly.

The IBP correctly found that the charges of deceit and grossly immoral conduct were not substantiated. In disbarment proceedings, the complainant has the burden of proving his case by convincing evidence.[17] With respect to the estafa case which is the basis for the charge of malpractice or other gross misconduct in office, the respondent is not yet convicted thereof. In Gerona vs. Datingaling,[18] we held that when the criminal prosecution based on the same act charged is still pending in court, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case to avoid contradictory findings.

We, however, affirm the IBP’s finding that the respondent is guilty of assisting in the unauthorized practice of law. A lawyer who allows a non-member of the Bar to misrepresent himself as a lawyer and to practice law is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility, which read as follows:

Canon 9 – A lawyer shall not directly or indirectly assist in the unauthorized practice of law.

Rule 9.01 – A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.

The term “practice of law” implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration of his services. Holding one’s self out as a lawyer may be shown by acts indicative of that purpose like identifying oneself as attorney, appearing in court in representation of a client, or associating oneself as a partner of a law office for the general practice of law.[19] Such acts constitute unauthorized practice of law.

In this case, Felicisimo R. Tenorio, Jr., is not a lawyer, but he holds himself out as one. His wife, the respondent herein, abetted and aided him in the unauthorized practice of the legal profession.

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At the hearing, the respondent admitted that the letterhead of Cristal-Tenorio Law Office listed Felicisimo R. Tenorio, Jr., Gerardo A. Panghulan, and Maricris D. Battung as senior partners. She admitted that the first two are not lawyers but paralegals. They are listed in the letterhead of her law office as senior partners because they have investments in her law office.[20] That is a blatant misrepresentation.

The Sagip Communication Radio Group identification card is another proof that the respondent assisted Felicisimo R. Tenorio, Jr., in misrepresenting to the public that he is a lawyer. Notably, the identification card stating that he is “Atty. Felicisimo Tenorio, Jr.,” bears the signature of the respondent as Chairperson of the Group.

The lawyer’s 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 individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. 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 action, to aid a layman in the unauthorized practice of law.[21]

WHEREFORE, for culpable violation of Canon 9 and Rule 9.01 of the Code of Professional Responsibility, respondent Atty. Ana Luz B. Cristal-Tenorio is hereby SUSPENDED from the practice of law for a period of six (6) months effective immediately, with a warning that a repetition of the same or similar act in the future will be dealt with more severely.

Let copies of this Resolution be attached to respondent Cristal-Tenorio’s record as attorney in this Court and furnished to the IBP and the Office of the Court Administrator for circulation to all courts.

SO ORDERED.

RE: SUBPOENA DUCES TECUM DATED JANUARY 11, 2010 OF ACTING DIRECTOR ALEU A. AMANTE, PIAB-C, OFFICE OF THE OMBUDSMAN

A.M. No. 10-1-13-SC

Present:

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PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

Promulgated:

March 2, 2010 x----------------------------------------------------------------------------------------- x RE SO LUTI ON

PER CURIAM:

Before us for consideration are the interrelated matters listed below.

a. The subpoena duces tecum (dated January 11, 2010 and received by this Court on January 18, 2010), issued by the Office of the

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Ombudsman on the “Chief, Office of the Administrative Services or AUTHORIZED REPRESENTATIVE, Supreme Court, Manila,” for the submission to the Office of the Ombudsman of the latest Personal Data Sheets and last known forwarding address of former Chief Justice Hilario G. Davide, Jr. and former Associate Justice Ma. Alicia Austria-Martinez. The subpoena duces tecum was issued in relation to a criminal complaint under (b) below, pursuant to Section 13, Article XI of the Constitution and Section 15 of Republic Act No. 6770. The Office of the Administrative Services (OAS) referred the matter to us on January 21, 2010 with a request for clearance to release the specified documents and information.

b. Copy of the criminal complaint entitled Oliver O. Lozano and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMBC-C-09-0527-J, cited by the Ombudsman as basis for the the subpoena duces tecum it issued. We secured a copy of this criminal complaint from the Ombudsman to determine the legality and propriety of the subpoena duces tecum sought.

c. Order dated February 4, 2010 (which the Court received on February 9, 2010), signed by Acting Director Maribeth TaytaonPadios of the Office of the Ombudsman (with the approval of Ombudsman Ma. Merceditas Navarro-Gutierrez), dismissing the Lozano complaint and referring it to the Supreme Court for appropriate action. The order was premised on the Memorandum[1] issued on July 31, 2003 by Ombudsman Simeon Marcelo who directed that all complaints against judges and other members of the Judiciary be immediately dismissed and referred to the Supreme Court for appropriate action.

OUR RULING

I. The Subpoena Duces Tecum

In light of the Ombudsman’s dismissal order of February 4, 2010, any question relating to the legality and propriety of the subpoena duces tecum the Ombudsman issued has been rendered moot and academic. The subpoena duces tecum merely drew its life and continued viability from the underlying criminal complaint, and the complaint’s dismissal – belated though it may be – cannot but have the effect of rendering the need for the subpoena duces tecum academic.

As guide in the issuance of compulsory processes to Members of this Court, past and present, in relation to complaints touching on the exercise of our judicial functions, we deem it appropriate to discuss for the record the extent of the Ombudsman’s authority in these types of complaints.

In the appropriate case, the Office of the Ombudsman has full authority to issue subpoenas, including subpoena duces tecum, for compulsory attendance of witnesses and the production of documents and information relating to matters under its investigation.[2] The grant of this authority, however, is not unlimited, as the Ombudsman must necessarily observe and abide by the terms of the Constitution and our laws, the Rules of Court and the applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. Under the Rules of Court, the issuance of subpoenas, including a subpoena duces tecum, operates under the requirements of reasonableness and relevance.[3] For the production of documents to be reasonable and for the documents themselves to be relevant, the matter under inquiry should, in the first place, be one that the Ombudsman can legitimately entertain, investigate and rule upon.

In the present case, the “matter” that gave rise to the issuance of a subpoena duces tecum was a criminal complaint filed by the

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complainants Lozano for the alleged violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act).

A first step in considering whether a criminal complaint (and its attendant compulsory processes) is within the authority of the Ombudsman to entertain (and to issue), is to consider the nature of the powers of the Supreme Court. This Court, by constitutional design, is supreme in its task of adjudication; judicial power is vested solely in the Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts, not only to settle actual controversies, but also to determine whether grave abuse of discretion amounting to lack or excess of jurisdiction has been committed in any branch or instrumentality of government. [4] As a rule, all decisions and determinations in the exercise of judicial power ultimately go to and stop at the Supreme Court whose judgment is final. This constitutional scheme cannot be thwarted or subverted through a criminal complaint that, under the guise of imputing a misdeed to the Court and its Members, seeks to revive and re-litigate matters that have long been laid to rest by the Court. Effectively, such criminal complaint is a collateral attack on a judgment of this Court that, by constitutional mandate, is final and already beyond question.

A simple jurisprudential research would easily reveal that this Court has had the occasion to rule on the liability of Justices of the Supreme Court for violation of Section 3(e) of R.A. 3019—the very same provision that the complainants Lozano invoke in this case.

In In re Wenceslao Laureta,[5] the client of Atty. Laureta filed a complaint with the Tanodbayan charging Members of the Supreme Court with violation of Section 3(e) of Republic Act No. 3019 for having knowingly, deliberately and with bad faith rendered an unjust resolution in a land dispute. The Court unequivocally ruled that insofar as this Court and its Divisions are concerned, a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that such collective decision is “unjust” should not prosper; the parties cannot “relitigate in another forum the final judgment of the Court,” as to do so is to subordinate the Court, in the exercise of its judicial functions, to another body.[6]

In re Joaquin T. Borromeo[7] reiterates the Laureta ruling, particularly that (1) judgments of the Supreme Court are not reviewable; (2) administrative, civil and criminal complaints against a judge should not be turned into substitutes for appeal; (3) only courts may declare a judgment unjust; and (4) a situation where the Ombudsman is made to determine whether or not a judgment of the Court is unjust is an absurdity. The Court further discussed the requisites for the prosecution of judges, as follows:

That is not to say that it is not possible at all to prosecute judges for this impropriety, of rendering an unjust judgment or interlocutory order; but, taking account of all the foregoing considerations, the indispensable requisites are that there be a final declaration by a competent court in some appropriate proceeding of the manifestly unjust character of the challenged judgment or order, and there be also evidence of malice and bad faith, ignorance or inexcusable negligence on the part of the judge in rendering said judgment or order.

Thus, consistent with the nature of the power of this Court under our constitutional scheme, only this Court – not the Ombudsman – can declare a Supreme Court judgment to be unjust.

In Alzua v. Arnalot,[8] the Court ruled that “judges of superior and general jurisdiction are not liable to respond in civil action for damages, and provided this rationale for this ruling: Liability to answer to everyone who might feel himself aggrieved by the action of

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the judge would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful.” The same rationale applies to the indiscriminate attribution of criminal liability to judicial officials.

Plainly, under these rulings, a criminal complaint for violation of Section 3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the Supreme Court, cannot prosper and should not be entertained. This is not to say that Members of the Court are absolutely immune from suit during their term, for they are not. The Constitution provides that the appropriate recourse against them is to seek their removal from office if they are guilty of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.[9] Only after removal can they be criminally proceeded against for their transgressions. While in office and thereafter, and for their official acts that do not constitute impeachable offenses, recourses against them and their liabilities therefor are as defined in the above rulings.

Section 22 of Republic Act No. 6770, in fact, specifically grants the Ombudsman the authority to investigate impeachable officers, but only when such investigation is warranted:

Section 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

Conversely, if a complaint against an impeachable officer is unwarranted for lack of legal basis and for clear misapplication of law and jurisprudence, the Ombudsman should spare these officers from the harassment of an unjustified investigation. The present criminal complaint against the retired Justices is one such case where an investigation is not warranted, based as it is on the legal correctness of their official acts, and the Ombudsman should have immediately recognized the criminal complaint for what it is, instead of initially proceeding with its investigation and issuing a subpoena duces tecum.

II. The Ombudsman’s Dismissal of the Criminal Complant As the Ombudsman’s dismissal of the criminal complaint (Oliver O. Lozano and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J) clearly implied, no complete dismissal took place as the matter was simply “referred to the Supreme Court for appropriate action.”

Although it was belatedly made, we cannot fault this Ombudsman action for the reasons we have already discussed above. While both accused are now retired from the service, the complaint against them still qualifies for exclusive consideration by this Court as the acts complained of spring from their judicial actions while they were with the Court. From this perspective, we therefore pass upon the prima facie merits of the complainants Lozano’s criminal complaint.

a. Grounds for the Dismissal of the Complaint

By its express terms, the criminal complaint stemmed from the participation of the accused in the Resolution the First Division of this Court issued in Heirs of Antonio Pael v. Court of Appeals, docketed as G.R. Nos. 133547 and 133843. The retired Chief Justice and

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retired Associate Justice allegedly committed the following unlawful acts:

1)

Overturning the findings of fact of the CA;

2) Stating in the Resolution that the “Chin-Mallari property overlaps the UP property,” when the DENR Survey Report stated that the “UP title/property overlaps the Chin-Mallari property;”

3)

Issuing a Resolution, for which three Justices voted, to set aside a Decision for which five Justices voted.

By these acts, the retired Members of this Court are being held criminally accountable on the theory that they violated the Constitution and the law in their ruling in the cited cases, thereby causing “undue injury” to the parties to these cases.

After due consideration, we dismiss the criminal complaint against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez under Section 3(e) of RA 3019. We fully expound on the reasons for this conclusion in the discussions below.

a.

Contrary to the complainants’ position,

the Supreme Court has the power to review the lower courts’ findings of fact.

The Supreme Court is the highest court of the land with the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of the lower courts.[10] It has the authority to promulgate rules on practice, pleadings and admission to the bar, and suspend the operation of these rules in the interest of justice.[11] Jurisprudence holds, too, that the Supreme Court may exercise these powers over the factual findings of the lower courts, among other prerogatives, in the following instances: (1) when the findings are grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd of impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misappreciation of facts; (5) when the findings of fact are conflicting; (6) when, in making its findings, the same are contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.[12] Thus, contrary to the complainants Lozano’ assertions in their complaint, the Supreme Court, in the proper cases, can and does rule on factual submissions before it, and even reverses the lower court’s factual findings when the circumstances call for this action.

b.

Constitutional Provisions were misused.

The complainants Lozano appear to us to have brazenly misquoted and misused applicable constitutional provisions to justify their case against the retired Justices. We refer particularly to their use (or strictly, misuse) of Article X, Section 2(3) of the 1973 Constitution

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which they claim to be the governing rule that the retired Justices should have followed in acting on Pael. This constitutional provision states:

Cases heard by a division shall be decided with the concurrence of at least five Members, but if such required number is not obtained the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc.[13]

For failure of the retired Justices to act according to these terms, the complainants claim that the former subverted the Constitution by reversing, by a vote of a majority of only three members, the decision of the First Division unanimously approved by its full membership of five members.

Had the complainants bothered to carefully consider the facts and developments in Pael and accordingly related these to the applicable constitutional provision, they would have discovered that Pael was decided in 2003 when the 1987 Constitution, not the 1973 Constitution, was the prevailing Charter. They then would have easily learned of the manner cases are heard and decided by Division before the Supreme Court under the 1987 Constitution. Section 4(3), Article VIII of this Constitution provides:

Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.” (Emphasis supplied.)

This was the provision that governed in 2003 and still governs to this day. Thus, the complainants’ argument and basis for their criminal complaint – that in ruling on a motion for reconsideration, all five members of the Division should concur – is totally wrong.

c.

The elements of the offense charged are not sufficiently alleged in the complaint

A public official can violate Section 3(e) of Republic Act No. 3019[14] in two ways: (1) by causing undue injury to any party, including the Government; or (2) by giving any private party any unwarranted benefit, advantage or preference;[15] in either case, these acts must be committed with manifest partiality, evident bad faith, or gross and inexcusable negligence.

“Partiality” is defined as a bias or disposition to see and report matters as wished for, rather than as they are. “Bad faith” connotes not only bad judgment or negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty amounting to fraud. “Gross negligence,” on the other hand, is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences as far as other persons are concerned.[16]

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The criminal complaint in this case failed to allege the facts and circumstances showing that the retired Justices acted with partiality, bad faith or negligence. A judicial officer’s act in reviewing the findings of fact in a decision and voting for its reversal cannot by itself constitute a violation of Section 3(e) of Republic Act No. 3019 in the absence of facts, alleged and proven, demonstrating a dishonest purpose, conscious partiality, extrinsic fraud, or any wrongdoing on his or her part. A complainant’s mere disagreement with the magistrate’s own conclusions, to be sure, does not justify a criminal charge under Section 3(e) against the latter. In the absence of alleged and proven particular acts of manifest partiality, evident bad faith or gross inexcusable negligence, good faith and regularity are generally presumed in the performance of official duties by public officers.[17]

For the criminal complaint’s fatal omissions and resultant failure to allege a prima facie case, it rightfully deserves immediate dismissal.

III. The Complainants’ Potential Liability for Filing the Ombudsman Complaint

In light of the above conclusions and under the attendant circumstances of the criminal complaints, we cannot avoid considering whether the complainants Lozano acted properly as members of the Bar, as officers of this Court, and as professionals governed by norms of ethical behavior, in filing their complaint.

In their criminal complaint, the complainants gave a slanted view of the powers of this Court to suit their purposes; for these same purposes, they wrongly cited and misapplied the provisions of the Constitution, not just any ordinary statute. As lawyers, the complainants must be familiar and well acquainted with the fundamental law of the land, and are charged with the duty to apply the constitutional provisions in light of their prevailing jurisprudential interpretation. As law practitioners active in the legal and political circles, the complainants can hardly be characterized as “unknowing” in their misuse and misapplication of constitutional provisions. They should, at the very least, know that the 1973 Constitution and its provisions have been superseded by the 1987 Constitution, and that they cannot assail – invoking the 1973 Constitution – the judicial acts of members of the Supreme Court carried out in 2003 when the 1987 Constitution was in effect. Their misuse of the Constitution is made more reprehensible when the overriding thrust of their criminal complaint is considered; they used the 1973 provisions to falsely attribute malice and injustice to the Supreme Court and its Members.

In our view, the complainants’ errors do not belong to the genre of plain and simple errors that lawyers commit in the practice of their profession. Their plain disregard, misuse and misrepresentation of constitutional provisions constitute serious misconduct that reflects on their fitness for continued membership in the Philippine Bar. At the very least, their transgressions are blatant violations of Rule 10.02 of the Code of Professional Responsibility, which provides:

Rule 10.02. A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. (Emphasis provided.)

To emphasize the importance of requiring lawyers to act candidly and in good faith, an identical provision is found in Cannon 22 of the Canons of Professional Ethics. Moreover, lawyers are sworn to “do no falsehood, nor consent to the doing of any in court…” before they are even admitted to the Bar. All these the complainants appear to have seriously violated.

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In the interest of due process and fair play, the complainants Lozano should be heard, in relation to their criminal complaint before the Ombudsman against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-Martinez, on why they should not be held accountable and accordingly penalized for violations of their duties as members of the Bar and officers of this Court, and of the ethics of the legal profession.

WHEREFORE, premises considered, we DISMISS the criminal complaint entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J for utter lack of merit, and DECLARE as MOOT and ACADEMIC the question of compliance with the subpoena duces tecum dated January 11, 2010 that the Ombudsman issued against this Court.

We hereby ORDER the complainants Atty. Oliver O. Lozano and Atty. Evangeline Lozano-Endriano to EXPLAIN IN WRITING to this Court, within a non-extendible period of 15 days from receipt of this Resolution, why they should not be penalized as members of the Bar and as officers of this Court, for their open disregard of the plain terms of the Constitution and the applicable laws and jurisprudence, and their misuse and misrepresentation of constitutional provisions in their criminal complaint before the Office of the Ombudsman, entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J.

SO ORDERED. A.M. No. RTJ-90-580. April 27, 1993. EDUARDO R. vs. JUDGE LEOPOLDO CALDERON, respondent.

BALAOING,

complainant,

BALAOING,

complainant,

A.M. No. RTJ-676. April 27, 1993. EDUARDO R. vs. HON. SANTIAGO MALIWANAG, respondent. SYLLABUS 1. LEGAL ETHICS; COUNSEL'S WANTON DISREGARD OF COURT'S STERN WARNING NOT TO AGAIN FILE BASELESS AND FRIVOLOUS ADMINISTRATIVE COMPLAINTS AND HIS ADAMANT REFUSAL TO ABIDE BY CANON 11, RULE 11.03 AND RULE 11.04, CODE OF PROFESSIONAL RESPONSIBILITY IS GROUND FOR DISBARMENT. — Complainant Balaoing went out of bounds when he filed his baseless and frivolous administrative complaints against respondent Judges Calderon and Maliwanag, with no other plain and clear purpose than to harass respondent Judges, and thus, exact vengeance on them for rendering adverse judgments against him and his clients. These acts of complainant Balaoing run counter to the explicit mandate of the Code of Professional Responsibility, to wit: CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS . . . Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Rule 11.04 — A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. We have painstakingly reviewed the records of these cases and find the present administrative complaints of Atty. Balaoing against Judge Calderon, Jr. and his OIC Leonor Maniago, and against Judge Maliwanag, just as frivolous and baseless as the previous ones. Like before, his present complaints are based on his personal interpretation of the law and not on material allegations of fact, substantiated by solid evidence. This We cannot countenance. Complainant Balaoing's wanton disregard of Our stern warning not to again file baseless and frivolous complaints which only clog the already full dockets of this Court instead of serve the ends of justice, and his adamant refusal to abide by the above-quoted provisions of the Code of Professional Responsibility which serve to regulate a lawyer's conduct in this jurisdiction, have shown complainant Balaoing's unfitness to hold the license to practice law.

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DECISION PER CURIAM p: This is the latest of the several administrative complaints filed by Atty. Eduardo R. Balaoing against different judges of Olongapo City and Zambales. The first complaint was dated February 17, 1989, entitled "Atty. Balaoing vs. Hon. Jaime Dojillo as Judge of Municipal Trial Court in Cities, Olongapo City, et al." Said complaint was dismissed for lack of merit through this Court's Resolution dated September 18, 1990. Further, Atty. Balaoing was required to show cause why he should not be disciplinarily dealt with for having suppressed certain material facts of which he was charged with knowledge, and for having engaged in forum shopping. On September 26, 1990, Atty. Balaoing submitted his "Explanation and Motion for Reconsideration." In a Resolution 1 of the Court En Banc, said motion for reconsideration was DENIED, his explanation was DECLARED UNSATISFACTORY and he was SEVERELY CENSURED for having instituted a patently unfounded and frivolous administrative action, and WARNED that the commission by him of the same or similar misconduct will be dealt with more severely. The second administrative complaint filed by Atty. Eduardo R. Balaoing was against Judge Santiago Maliwanag, RTC, Branch 71, Iba, Zambales, charging them with grave misconduct for their alleged failure and refusal to issue the corresponding writ of execution (pending appeal) prayed for by complainant in his motion filed in Civil Case No. 983-1 (CA-G.R. No. 01234), entitled "TEOFILO ZABALA, et al. vs. EUGENIO BUENO". The Court was disturbed by complainant Balaoing's unrestrained use of unsavory, even defamatory and offensive language against respondent Judge. One glaring example narrates: ". . . It is well to advise Judge Maliwanag not to be wearing his brief (short) while in his chamber during office hours; it is downright undignified, especially so when his body has traces of fungus, which was have been afflicted during his 26 years as Assistant City Fiscal of Olongapo City, a dirty city." (This was vehemently denied by respondent Judge.) The Court, in a Resolution 2 En Banc, dated December 4, 1990, resolved to: (1) DISMISS the complaint; (2) SUSPEND complainant from the practice of law for one (1) year; and (3) IMPOSE upon complainant a FINE of ONE THOUSAND PESOS (P1,000.00), for Violation of the Canons of the Code of Professional Responsibility, with a stern warning that subsequent similar infractions shall be dealt with more severely. Notwithstanding the above warnings, censure and suspension from the practice of law for one (1) year, Atty. Eduardo R. Balaoing is again before this Court with more administrative complaints filed against not only one, but two judges, the Honorable Leopoldo T. Calderon, Jr. and the Honorable Santiago Maliwanag, of Olongapo City and Zambales, respectively. On September 25, 1990, Atty. Eduardo R. Balaoing filed a sworn letter-complaint 3 against Judge Leopoldo T. Calderon, Jr. of the Regional Trial Court, Branch 75, Olongapo City, for misconduct, grave abuse of authority and malicious delay in the administration of justice, allegedly committed as follows: "Complainant alleges that in the matter of implementing the Supreme Court Circular mandating continuous trial, there is no way for it to succeed in so far as respondent Judge is concerned since the latter does not follow the Circular and merely treats it as directory; that at the start of court sessions, it has been the practice of respondent Judge to automatically grant postponements and deferments of the hearing of cases to a later hour whenever his OIC, Leonor Maniago, makes a manifestation in open court that a certain lawyer or party called up requesting that his/her case be postponed or be called later in the day; that respondent Judge drinks a lot with lawyers close to Mayor Gordon and fraternizes with them openly; that with respect to respondent's personal driver, the latter receives his salary both from Mayor Gordon as a casual employee and from the Supreme Court as a judicial aide; and, that respondent Judge sanctions the set up of having his legal researcher, Jaime Dojildo, Jr., to work under the supervision of an OIC who, according to complainant, is grossly inefficient and a notorious swindler with no background in law. Complainant further alleges that respondent Judge has been maliciously delaying the disposition of several cases pending in his sala. a. Civil Case No. 418-0-88, where complainant is the counsel for the plaintiff, was filed in 1988. Since the respondent Judge allowed the defendants to keep on postponing the hearings, to date, the case remains pending, without any hearing, for more than one (1) year; b. Sp. Proc. No. 285, where complainant is the counsel for the Petitioner, the case was submitted for decision on (sic) September 1989. To date, no decision has yet been rendered on the case to the prejudice of the petitioner who is now very old and sickly;

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c. In Civil Case No. 157-0-89, where complainant is the plaintiff, respondent Judge in cahoots with his Deputy Sheriff, unlawfully prevented the implementation of the Writ of Possession; d. In Civil Case No. 253-0-90, where complainant is the Petitioner, the application for the immediate issuance of mandatory injunction was filed on April 27, 1990. To date the same has not yet been acted upon by the respondent Judge." 4 A second letter-complaint 5 dated October 5, 1990, was again filed by Atty. Eduardo R. Balaoing against the same Judge Leopoldo T. Calderon, Jr. and his Officer-in-Charge (OIC) Leonor Maniago charging them both with misconduct, grave abuse of authority and malicious delay in the administration of justice relative to Civil Case No. 201-0-89, entitled "Eduardo R. Balaoing vs. Santiago Maliwanag and Romeo Enriquez." Complainant Balaoing, who is the plaintiff in both cases, alleges that respondent Judge abused his authority by refusing to declare in default the defendants in the above-entitled cases despite their repeated failure to attend the pre-trial conferences and to submit their pre-trial briefs. Complainant further avers that at the scheduled hearing, on October 5, 1990, respondent Judge did not call complainant's case, and was told only three (3) hours later that the reason was because of the motion filed by him for respondent Judge's inhibition, which the latter allegedly refused to resolve. With respect to the other respondent OIC Leonor Maniago, complainant Balaoing alleges that when he came out of the courtroom, he was castigated by the former for allegedly calling her notorious, swindler, insane, etc. Respondent Judge Leopoldo T. Calderon, Jr. filed his Comment 6 on November 13, 1991. He asserts that the present administrative complaint filed against him by complainant Balaoing was precipitated by incidents in Civil Case No. 190-0-89 entitled "Atty. Eduardo R. Balaoing vs. Eliseo Gavilan, et al." for Damages, wherein defendant Gavilan defaulted. All the other cases mentioned in the lettercomplaint were allegedly included to merely embellish the charges. The factual backdrop of the Gavilan case shows that complainant Balaoing won in a foreclosure case against one Eliseo Gavilan. After the foreclosed properties (a house and lot) were sold in a public auction, where complainant Balaoing was the highest bidder, a Certificate of Sale was issued and the same was registered. Respondent Judge, however, allegedly prevented the implementation of the writ of possession, to the prejudice of complainant Balaoing. In his Comment, respondent Judge explained that the reason why he quashed the writ of possession he earlier issued in favor of complainant Balaoing was due to the fact that Gavilan's widow, Alice, and her children, were residing in the foreclosed properties and, more importantly, the period to redeem the said properties had not yet expired. This action of respondent Judge allegedly infuriated complainant Balaoing, hence, his filing of several suits, one after the other, against respondent Judge, namely: "a) a Motion for Inhibition of respondent Judge in the Gavilan case and in the other cases mentioned in his present administrative complaint, alleging, among other things, that respondent Judge is guilty of "mental dishonesty" and "grossness of ignorance of the laws;" b) a Petition for Certiorari and Prohibition, to prevent respondent Judge from further acting in the Gavilan case and to nullify the Order of the Quashal of the Writ of Possession rendered in his favor; c) Civil Case No. 425-0-90, entitled "Balaoing vs. Judge Leopoldo Calderon, Jr.," for Damages, the causes of action of which were anchored on the events that transpired in the Gavilan case; and d) a Petition to cite respondent Judge in contempt filed with the Court of Appeals for expunging his motion for inhibition. When the redemption period in the Gavilan case had expired without the heirs redeeming the property, respondent Judge issued a writ of possession in favor of complainant Balaoing. But up to the present time, complainant Balaoing has not yet taken possession of the same, showing thereby his apparent disinterest. As to the application of complainant Balaoing for a writ of injunction and restraining order in Civil Case No. 253-0-90, respondent Judge explains that before he could finish hearing the evidence of the parties in support of and in opposition to the petition for issuance of the ancillary writ prayed for, complainant Balaoing filed another Motion for Inhibition of respondent Judge to hear his cases. Nevertheless, respondent Judge denied the motion for the issuance of the writ prayed for failure of complainant Balaoing to show a clear right over the property and that irreparable injury would visit him if the writ would not be issued. With regard to the charge of grave misconduct, respondent Judge vehemently denies the same. Thus, "7.1 The charge that the undersigned drinks "whisky like water" is a canard. The undersigned is not a habitual imbiber of liquor as he suffers from an occasional high blood pressure and migraine. Since undersigned became a judge, he never "patronized" with any lawyer.

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7.2 The undersigned applies the Mandatory Continuous Trial Scheme in his cases. If there were occasional lapses, it was because of the abnormal case load which is now more than 500 cases. 7.3 Court Aide Antonio Faustino does not receive any compensation from the City Government. He was, before being appointed by the Supreme Court to such a position, a casual employee of the City government. Upon his assumption to his present duty, he ceased to receive compensation from any other source. xxx xxx xxx 7.5 Atty. Jaime Dojillo was the duly appointed researcher in my sala. When he was promoted as Assistant Clerk of Court, upon his request, the Executive Judge allowed him to do researches for me. He is now a Trial Attorney in the PAO. 8. The undersigned has conducted the trial of cases and had disposed of the same consistent with the Rules of Court and various Supreme Court rulings and circulars . . ." 7 Other respondent OIC Leonor Maniago adopted the allegations in respondent Judge's Comment, and alleged further that she has "faithfully performed her duties and obligations under the law to administer justice in accordance with her authority and without any impartiality, (sic) whatsoever." 8 Consolidated with this administrative case is A.M. No. R-676-RTJ, entitled "Atty. Eduardo R. Balaoing vs. Hon. Santiago Maliwanag," wherein the former charges the latter with gross ignorance of the law for allegedly issuing a patently unjust order. Respondent Judge Maliwanag, in his Comment dated September 2, 1986, denied the charge and alleged among others, that his order was issued based on jurisprudence, equity and justice, in order to prevent an unjust and inequitable execution of the judgment and an injustice perpetrated by a lawyer on the unlearned and poor couple from the barrio. In a Memorandum to then Chief Justice Marcelo B. Fernan, dated September 12, 1990, the Office of the Court Administrator recommended the dismissal of Atty. Balaoing's complaint against Judge Maliwanag on the ground that the same failed "to specifically show and prove the facts constituting the charge of gross ignorance of the law. The allegation of the complainant are not only laconic and general but they are also based on mere and personal, interpretations of the complainant on the law instead of material allegations of facts." 9 As shown above, complainant Balaoing has a penchant for filing administrative charges against judges, in whose sala he has pending cases, whenever the latter render decisions or issue orders adverse to him and/or his clients. In Bagamasbad vs. Judge de Guzman, Jr., 10 We have already admonished lawyers to be more prudent in filing administrative charges against members of the judiciary. It is true that "The lawyer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability . . . No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty . . . But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand for him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client. 11 Here, complainant Balaoing went out of bounds when he filed his baseless and frivolous administrative complaints against respondent Judges Calderon and Maliwanag, with no other plain and clear purpose than to harass respondent Judges, and thus, exact vengeance on them for rendering adverse judgments against him and his clients. These acts of complainant Balaoing run counter to the explicit mandate of the Code of Professional Responsibility, to wit: CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSISTS ON SIMILAR CONDUCT BY OTHERS. xxx xxx xxx Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Rule 11.04 — A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. We have painstakingly reviewed the records of these cases and find the present administrative complaints of Atty. Balaoing against Judge Calderon, Jr. and his OIC Leonor Maniago, and against Judge Maliwanag, just as frivolous and baseless as the previous ones. Like before,

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his present complaints are based on his personal interpretation of the law and not on material allegations of fact, substantiated by solid evidence. This We cannot countenance. Complainant Balaoing's wanton disregard of Our stern warning not to again file baseless and frivolous complaints which only clog the already full dockets of this Court instead of serve the ends of justice, and his adamant refusal to abide by the above-quoted provisions of the Code of Professional Responsibility which serve to regulate a lawyer's conduct in this jurisdiction, have shown complainant Balaoing's unfitness to hold the license to practice law. The Philippines abounds in lawyers. But as Justice Malcolm puts it, "the Philippines do not need so-called lawyers who . . . have no ethical standards, and who are a disgrace to a great and noble profession . . . (F)or what is needed in the Philippines is not a greater quantity, but a finer quality, of professional men and women, . . . who have a sincere understanding of the high requirements of the legal profession . . ." 12 Complainant Balaoing has utterly failed to live up to the duties and responsibilities of a member of the legal profession. WHEREFORE, premises considered, the administrative complaints are hereby DISMISSED for lack of merit. Complainant Eduardo R. Balaoing is hereby DISBARRED and his name is ordered STRICKEN from the Roll of Attorneys. Let a copy of this decision be furnished to the Bar Confidant and the Integrated Bar of the Philippines and spread on the personal records of complainant. This decision is immediately executory. SO ORDERED.

A.C. No. MTJ-94-894 June 2, 1995 ATTY. FELIXBERTO N. BOQUIREN, complainant, vs. JUDGE EMPERATRIZ DEL ROSARIO-CRUZ; CLERK OF COURT MELINDA D. GATDULA; and ATTY. SATURNINO V. BACTAD, respondents. RESOLUTION

FRANCISCO, J.: This administrative complaint stemmed from Civil Case No. 111 entitled Alex Boquiren, et. al. vs. Mariano Gutierrez, for ejectment and damages, where complainant Atty. Felixberto N. Boquiren was the plaintiff's counsel. Atty. Saturnino V. Bactad, the defendant's counsel and the incumbent vice-governor of the province, and Judge Emperatriz del Rosario-Cruz and Atty. Melinda D. Gatdula, the judge and clerk of court respectively of the Municipal Trial Court, San Antonio, Zambales where the aforementioned civil case was docketed. Judge Cruz dismissed the ejectment suit due to plaintiff's lack of cause of action which complainant, Atty. Boquiren, seasonably appealed to the Regional Trial Court Branch 70 of Iba, Zambales. On July 5, 1993 Atty. Boquiren filed an administrative complaint against Judge Cruz and Atty. Gatdula for misconduct, partiality, serious nonfeasance, culpable dereliction of duty and ignorance of the law relative to the disposition of civil case no. 111. On the other hand, Atty. Bactad, the defendant's counsel, was charged by the complainant with false representation and employing scheme to defeat the application of the Revised Rule on Summary Procedure the latter alleging Atty. Bactad's claim and false representation that a motion to dismiss is an allowable pleading under the Revised Rule on Summary Proceedings. On January 26, 1994 the Court "DISMISSED the case without prejudice to the refiling of an administrative case at the proper time, it appearing that the case is on appeal with the Regional Trial Court, Branch 70, Iba, Zambales where relief is available". On February 18, 1994 complainant Atty. Boquiren filed a motion for its reconsideration. On March 2, 1994 the Court dismissed the complaint for not having been verified and for its failure to show prima facie case against respondent Atty. Gatdula. In reaction thereto, complainant Atty. Boquiren filed a motion for reconsideration dated March 26, 1994. We find these two motions for reconsideration devoid of merit. Civil Case No. 111 from which the subject administrative complaint stemmed has distinct facts from the latter but the subject

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administrative complaint can hardly be taken into isolation. We deemed it proper, as we had properly resolved in our January 26, 1994 Resolution, to dismiss the subject administrative complaint without prejudice since Civil Case No. 111 is now on appeal with the Regional Trial Court, Branch 70, Iba, Zambales. Necessarily, the appeal of Civil Case No. 111 includes all incidents that occurred from the initial filing of the complaint for Forcible Entry and Detainer on June 5, 1992 up to the MTC Decision dated February 26, 1993 dismissing said complaint. In fact, a cursory reading of Atty. Boquiren's appeal before the Regional Trial Court shows that he devoted at least twenty pages in his twenty-six page appeal statement detailing the incidents, perceived improper conduct, orders, proceedings, misrepresentation, misapprehension of facts, ignorance of the law and rules of procedure allegedly all evidencing the culpability of the Judge, the Clerk of Court and the defendant's counsel for administrative offenses. We note that these are the same grounds that now constitute the bases of the subject administrative complaint. The issues and matters raised therein were purely judicial in nature which an appeal can adequately and properly address. The alleged errors committed by Judge Cruz relative to the disposition of a case are at best errors of judgment and can be amply remedied by any aggrieved party without recourse to the subject administrative complaint. Besides, it is a matter of public policy that in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even though such acts are erroneous (Revita v. Rimando, 98 SCRA 619 [1980]). More important, any finding that this Court would make relative to the administrative complaint would undoubtedly influence and affect the outcome of Atty. Boquiren's appeal. Needless to say, this would constitute an unwarranted judicial interference and sway the Regional Trial Court's dispensation of the appeal which we cannot allow to happen. The Court strongly notes the excessive prose employed by complainant Atty. Boquiren in his Motions for Reconsideration describing the Court's Resolutions as: "highly questionable"; "based on insufficient or incorrect reasons"; "a classic arbituarily concluded resolution", "a glaring violation of the Canons of Judicial Ethics"; "pregnant with aptness to mislead, deceptive or delusive quality"; "patently erroneous"; "a BRAZEN LIE and MOCKERY OF JUSTICE" "classic carelessness, inefficiency, if not lack of industry on the part of Special Asst. to the Office of the Clerk of Court of the 3rd Div. and/or to the adjudication officer/office"; "mirror[ing] the Adjudicating Tribunal's and/or its staff's BRAZEN MOCKERY OF JUSTICE with their gross violation of the PUBLIC INTEREST POLICY of the State" [Emphasis in the original] It appears prima facie that the foregoing words are aimed at seriously undermining the integrity of this Court. Complainant seems to have forgotten his duty, as a lawyer and as an officer of the court, to observe and maintain the respect due to the courts and judicial officers (Canon 11, Code of Professional Responsibility). ACCORDINGLY, finding the motions for reconsideration without merit the same are hereby DISMISSED. Complainant Atty. Felixberto N. Boquiren, however, is hereby ordered to explain within five (5) days from receipt of this Resolution why he should not be cited for contempt and/or subject to disciplinary action. SO ORDERED.

RE : SUSPENSION OF ATTY.

ADM. CASE No. 7006

ROGELIO Z. BAGABUYO, FORMER SENIOR STATE PROSECUTOR

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ. CARPIO, AUSTRIA-MARTINEZ, CORONA,

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

Promulgated:

October 9, 2007 X ------------------------------------------------------------------------------------------ X

DECISION

AZCUNA, J.:

This administrative case stemmed from the events of the proceedings in Crim. Case No. 5144, entitled People v. Luis Bucalon Plaza, heard before the sala of Presiding Judge Jose Manuel P. Tan, Regional Trial Court (RTC) of Surigao City, Branch 29.

Crim. Case No. 5144 was originally raffled to the sala of Judge Floripinas C. Buyser, RTC of Surigao City, Branch 30. In an Order dated March 14, 2002, Judge Buyser denied the Demurrer to the Evidence of the accused, declaring that the evidence thus presented by the prosecution was sufficient to prove the crime of homicide and not the charge of murder. Consequently, the counsel for the defense filed a Motion to Fix the Amount of Bail Bond. Respondent Atty. Rogelio Z. Bagabuyo, then Senior State Prosecutor and the deputized prosecutor of the case, objected thereto mainly on the ground that the original charge of murder, punishable with reclusion perpetua, was not subject to bail under Sec. 4, Rule 114 of the Rules of Court.[1]

In an Order dated August 30, 2002,[2] Judge Buyser inhibited himself from further trying the case because of the “harsh insinuation” of Senior Prosecutor Rogelio Z. Bagabuyo that he “lacks the cold neutrality of an impartial magistrate,” by allegedly suggesting the filing of the motion to fix the amount of bail bond by counsel for the accused.

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The case was transferred to Branch 29 of the RTC of Surigao City, presided by Judge Jose Manuel P. Tan. In an Order dated November 12, 2002, Judge Tan favorably resolved the Motion to Fix the Amount of Bail Bond, and fixed the amount of the bond at P40,000.

Respondent filed a motion for reconsideration of the Order dated November 12, 2002, which motion was denied for lack of merit in an Order dated February 10, 2003. In October, 2003, respondent appealed from the Orders dated November 12, 2002 and February 10, 2003, to the Court of Appeals (CA).

Instead of availing himself only of judicial remedies, respondent caused the publication of an article regarding the Order granting bail to the accused in the August 18, 2003 issue of the Mindanao Gold Star Daily. The article, entitled “Senior prosecutor lambasts Surigao judge for allowing murder suspect to bail out,” reads:

SENIOR state prosecutor has lashed at a judge in Surigao City for allowing a murder suspect to go out on bail.

Senior state prosecutor Rogelio Bagabuyo lambasted Judge Manuel Tan of the Regional Trial Court (RTC) Branch 29 based in Surigao City for ruling on a motion that sought a bailbond for Luis Plaza who stands charged with murdering a policeman . . . .

Plaza reportedly posted a P40-thousand bail bond.

Bagabuyo argued that the crime of murder is a non-bailable offense. But Bagabuyo admitted that a judge could still opt to allow a murder suspect to bail out in cases when the evidence of the prosecution is weak.

But in this murder case, Bagabuyo said the judge who previously handled it, Judge F[lori]pinas B[uy]ser, described the evidence to be strong. B[uy]ser inhibited from the case for an unclear reason.

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Bagabuyo said he would contest Tan’s decision before the Court of Appeals and would file criminal and administrative charges of certiorari against the judge.

Bagabuyuo said he was not afraid of being cited in contempt by Judge Tan.

“This is the only way that the public would know that there are judges there who are displaying judicial arrogance.” he said.[3]

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In an Order dated August 21, 2003, the RTC of Surigao City, Branch 29, directed respondent and the writer of the article, Mark Francisco of the Mindanao Gold Star Daily, to appear in court on September 20, 2003 to explain why they should not be cited for indirect contempt of court for the publication of the article which degraded the court and its presiding judge with its lies and misrepresentation.

The said Order stated that contrary to the statements in the article, Judge Buyser described the evidence for the prosecution as not strong, but sufficient to prove the guilt of the accused only for homicide. Moreover, it was not true that Judge Buyser inhibited himself from the case for an unclear reason. Judge Buyser, in an Order dated August 30, 2002, declared in open court in the presence of respondent that he was inhibiting himself from the case due to the harsh insinuation of respondent that he lacked the cold neutrality of an impartial judge.

On the scheduled hearing of the contempt charge, Mark Francisco admitted that the Mindanao Gold Star Daily caused the publication of the article. He disclosed that respondent, in a press conference, stated that the crime of murder is non-bailable. When asked by the trial court why he printed such lies, Mr. Francisco answered that his only source was respondent. [4] Mr. Francisco clarified that in the statement alleging that Judge Buyser inhibited himself from the case for an unclear reason, the phrase “for an unclear reason,” was added by the newspaper’s Executive Editor Herby S. Gomez.[5]

Respondent admitted that he caused the holding of the press conference, but refused to answer whether he made the statements in the article until after he shall have filed a motion to dismiss. For his refusal to answer, the trial court declared him in contempt of court pursuant to Sec. 3, Rule 71 of the Rules of Court.[6] The Court’s Order dated September 30, 2003 reads:

ORDER Mr. Mark Francisco for publishing this article which is a lie clothed in half truth to give it a semblance of truth is hereby ordered to pay a fine of P10,000. Prosecutor Bagabuyo, for obstinately refusing to explain why he should not be cited for contempt and admitting that the article published in the Mindanao Gold Star Daily on August 18, 2003 and quoted in the Order of this Court dated August 21, 2003 which is contemptuous was caused by him to be published, is hereby adjudged to have committed indirect contempt of Court pursuant to Section 3 of Rule 71 of the Rules of Court and he is hereby ordered to suffer the penalty of 30 days in jail. The BJMP is hereby ordered to arrest Prosecutor Rogelio Z. Bagabuyo if he does not put up a bond of P100,000.00.

SO ORDERD.[7]

Respondent posted the required bond and was released from the custody of the law. He appealed the indirect contempt order to the CA.

Despite the citation of indirect contempt, respondent presented himself to the media for interviews in Radio Station DXKS, and again attacked the integrity of Judge Tan and the trial court’s disposition in the proceedings of Crim. Case No. 5144.

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In an Order dated October 20, 2003, the RTC of Surigao City, Branch 29, required respondent to explain and to show cause within five days from receipt thereof why he should not be held in contempt for his media interviews that degraded the court and the presiding judge, and why he should not be suspended from the practice of law for violating the Code of Professional Responsibility, specifically Rule 11.05 of Canon 11[8] and Rule 13.02 of Canon 13.[9]

In the Order, the trial court stated that respondent was interviewed by Jun Clergio, and that the interview was repeatedly aired on September 30, 2003 and in his news program between 6:00 and 8:00 a.m. on October 1, 2003. He was also interviewed by Tony Consing on October 1 and 2, 2003, between 8:00 and 9:00 a.m. in his radio program. In those radio interviews, respondent allegedly called Judge Tan a judge who does not know the law, a liar, and a dictator who does not accord due process to the people.

The hearing for the second contempt charge was set on December 4, 2003.

On November, 20, 2003, respondent filed an Urgent Motion for Extension of Time to File Answer to Contempt alleging that he was saddled with work of equal importance and needed ample time to answer the same. He also prayed for a bill of particulars in order to properly prepare for his defense.

In an Order dated November 20, 2003, the trial court denied the motion. It stated that a bill of particulars is not applicable in contempt proceedings, and that respondent’s actions and statements are detailed in the Order of October 20, 2003.

On the scheduled hearing of December 4, 2003 respondent neither appeared in court nor informed the court of his absence. The trial court issued an Order dated December 4, 2003 cancelling the hearing “to give Prosecutor Bagabuyo all the chances he asks for,” and ordered him to appear on January 12, 2004 to explain in writing or orally why he should not be cited in contempt of court pursuant to the facts stated in the Order dated October 20, 2003. However, respondent did not appear in the scheduled hearing of January 12, 2004.

On January 15, 2004, the trial court received respondent’s Answer dated January 8, 2004. Respondent denied the charge that he sought to be interviewed by radio station DXKS. He, however, stated that right after the hearing of September 30, 2003, he was approached by someone who asked him to comment on the Order issued in open court, and that his comment does not fall within the concept of indirect contempt of court. He also admitted that he was interviewed by his friend, Tony Consing, at the latter’s instance. He justified his response during the interview as a simple exercise of his constitutional right of freedom of speech and that it was not meant to offend or malign, and was without malice.

On February 8, 2004, the trial court issued an Order, the dispositive portion of which reads:

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WHEREFORE, finding preponderant evidence that Prosecutor Bagabuyo has grossly violated the Canons of the legal profession and [is] guilty of grave professional misconduct, rendering him unfit to continue to be entrusted with the duties and responsibilities belonging to the office of an attorney, he is hereby SUSPENDED from the practice of law.

Likewise, he is also found guilty of indirect contempt of court, for which he is hereby ordered to suffer the penalty of IMPRISONMENT for ninety (90) days to be served at the Surigao City Jail and to pay the maximum fine of THIRTY THOUSAND PESOS (P30,000.00). Future acts of contempt will be dealt with more severely.

Let copies of the relevant records be immediately forwarded to the Supreme Court for automatic review and for further determination of grounds for [the] disbarment of Prosecutor Rogelio Z. Bagabuyo.[10]

The trial court found respondent’s denials to be lame as the tape of his interview on October 2, 2003, duly transcribed, showed disrespect of the court and its officers, thus:

TONY CONSING: Fiscal, nanglabay ang mga oras, nanglabay ang gamay’ng panahon ang samad sa imong kasingkasing nagpabilin pa ba ni. O ingnon nato duna na bay pagbag-o sa imong huna-huna karon?

(Fiscal, after the lapse of time, are you still hurt? Or have you not changed your mind yet?)

BAGABUYO : Ang akong huna-huna kon aduna man ugaling pagbag-o ang pagsiguro, ang mga Huwes nga dili mahibalo sa balaod tangtangon pagka abogado, mao kana.

(If my mind has changed at all, it is that I ensure that all judges who are ignorant of the law should be disbarred. That’s it.)

xxx

BAGABUYO : Mao kana ang tinuod, Ton, ug kining akong guibatonan karon nga hunahuna mahitungod nianang mga Huwes nga dili kahibalo sa balaod, magkadugay magkalami. Kada adlao nagatoon ako. Nagabasa ako sa mga bag-ong jurisprudence ug sa atong balaod aron sa pagsiguro gayod nga inigsang-at unya nako sa kaso nga disbarment niining di mahibalo nga Huwes, sigurado gayod ako nga katangtangan siya sa lisensiya . . . . Ang kini nga Huwes nga dili mahibalo sa balaod, pagatangtangon na, dili lamang sa pagkaHuwes kon dili sa pagka-abogado. Tan-awa ra gyod kining iyang gibuhat nga Order, Ton, ang iyang pagkabakakon . . . .

(That’s true, Ton, and this conviction I have now about judges who are ignorant of the law is made firmer by time. I study everyday. I read new jurisprudence and the law to insure that when I file the disbarment case against this Judge who does not know his law, I am certain that he loses his license. . . . This judge who is ignorant of the law should not only be removed as a judge but should also be disbarred. Just take a look at his Order, Ton, and see what a liar he is . . . .)

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xxx

BAGABUYO : Yes, nag-ingon ang iyang Order. . . . Ngano nga nakaingon ako nga bakakon kini, nag-ingon nga kini konong order given in open court, ang kalooy sa dios, ang iyang order sa Korte wala siya mag-ingon ug kantidad nga P100,000.00 nga bail bond. ...

(Yes, his Order said that . . . . Why did I say that he is a liar? It states that this Order was “given in open court,” and in God’s mercy, he did not state the amount of P100,000.00 as bail bond. . . .)

BAGABUYO

:

Kay dili man lagi mahibalo sa balaod, ako siyang gui-ingnan, Your Honor, I have the right to appeal. Mibalik dayon, ug miingon siya, BJMP arrest

Bagabuyo.

(Because he does not know the law, I said, “Your Honor, I have the right to appeal.” Then he came back and said, “BJMP, arrest Bagabuyo.”)

xxx

BAGABUYO

:

...

P100,000.00 ang iyang guipapiyansa.

Naunsa na? Dinhi makita nimo ang iyang pagka gross ignorance of the law. . . .

(He imposed a bail of P100,000.00. How come? This is where you will see his gross ignorance of the law. . . . )

xxx

TONY CONSING :

So karon, unsay plano nimo karon?

(So what is your plan now?)

BAGABUYO

:

Sumala sa akong gui-ingon moundang lang ako kon matangtang na siya sa pagka abogado. . . .

(As I have said, I will only stop if he is already disbarred. . . .)

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xxx

BAGABUYO : Nasuko siya niini kay hambugero kuno, pero angayan niyang hibaw-an nga ang trabajo sa Huwes dili ang pagtan-aw kon ang tawo hambugero . . . . Ug ang akong gisulti mao lamang ang balaod nga siya in fact at that time I said he is not conversant of the law, with regards to the case of murder. . . .

(He got angry because I was allegedly bragging but he should know that it is not for a judge to determine if a person is a braggart. . . .And what I said was based on the law. In fact, at that time, I said he is not conversant of the law, with regards to the case of murder . . . .)

xxx

BAGABUYO : Ah, mi sit down sab ako, contempt ra ba kadto . . . . Mao kana, pero unsa may iyang katuyoan – ang iyang katuyoan nga ipa-adto ako didto kay didto, iya akong pakauwawan kay iya kong sikopon, iya kong ipa-priso, pero kay di man lagi mahibalo sa balaod, ang iyang gui orderan BJMP, intawon por dios por Santo, Mr. Tan, pagbasa intawon ug balaod, naunsa ka ba Mr. Tan? Unsa may imong hunahuna nga kon ikaw Huwes, ikaw na ang diktador, no way, no sir, ours is a democratic country where all and everyone is entitled to due process of law – you did not accord me due process of law . . . .

(I sat down. . . . That’s it. But what was his purpose? He made me come in order to humiliate me because he wanted me arrested, he wanted me imprisoned, but because he is ignorant of the law, he ordered the BMJP. For God’s sake, Mr. Tan, what’s wrong with you, Mr. Tan? Please read the law. What is your thinking? That when you are a judge, you are also a dictator? No way, no sir, ours is a democratic country where all and everyone is entitled to due process of law – you did not accord me due process of law. . . .)

TONY CONSING:

So mopasaka kang disbarment, malaumon kita nga maaksiyonan kini, with all this problem sa Korte Suprema.

(So you are filing a disbarment case? We hope that this be given action with all the problems in the Supreme Court.)

BAGABUYO : Dili ako mabalaka niana kay usa ka truck ang akong jurisprudence, nga ang mga Huwes nga di mahibalo sa balaod pagatangtangon gayod sa ilang pagka Huwes. . . . Apan unsa man intawon ang balaod ang iyang gibasa niini nadunggan ko nga kini kuno siya madjongero, mao bitaw na, madjong ang iyang guitunan?

(I am not worried because I have a truckload of jurisprudence that judges who are ignorant of the law must be removed from the Bench. But what law has he been reading? I heard that he is a mahjong aficionado (mahjongero) and that is why he is studying mahjong.[11]

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The trial court concluded that respondent, as a member of the bar and an officer of the court, is duty bound to uphold the dignity and authority of the court, and should not promote distrust in the administration of justice.

The trial court stated that it is empowered to suspend respondent

from the practice of law under Sec. 28, Rule 138 of the Rules of

Court[12] for any of the causes mentioned in Sec. 27[13] of the same Rule. Respondent was given the opportunity to be heard, but he opted to be silent. Thus, it held that the requirement of due process has been duly satisfied.

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In accordance with the provisions of Sec. 29,[14] Rule 138 and Sec. 9,[15] Rule 139 of the Rules of Court, the RTC of Surigao City, Branch 29, transmitted to the Office of the Bar Confidant the Statement of Facts of respondent’s suspension from the practice of law, dated July 14, 2005, together with the order of suspension and other relevant documents.

In its Report dated January 4, 2006, the Office of the Bar Confidant found that the article in the August 18, 2003 issue of the Mindanao Gold Star Daily, which maligned the integrity and independence of the court and its officers, and respondent’s criticism of the trial court’s Order dated November 12, 2002, which was aired in radio station DXKS, both in connection with Crim. Case No. 5144, constitute grave violation of oath of office by respondent. It stated that the requirement of due process was complied with when respondent was given an opportunity to be heard, but respondent chose to remain silent.

The Office of the Bar Confidant recommended the implementation of the trial court’s order of suspension dated February 8, 2004, and that respondent be suspended from the practice of law for one year, with a stern warning that the repetition of a similar offense will be dealt with more severely.

The Court approves the recommendation of the Office of the Bar Confidant. It has been reiterated in Gonzaga v. Villanueva, Jr.[16] that:

A lawyer may be disbarred or suspended for any violation of his oath, a patent disregard of his duties, or an odious deportment unbecoming an attorney. Among the grounds enumerated in Section 27, Rule 138 of the Rules of Court are deceit; malpractice; gross misconduct in office; grossly immoral conduct; conviction of a crime involving moral turpitude; any violation of the oath which he is required to take before admission to the practice of law; willful disobedience of any lawful order of a superior court; corrupt or willful appearance as an attorney for a party to a case without authority to do so. The grounds are not preclusive in nature even as they are broad enough as to cover practically any kind of impropriety that a lawyer does or commits in his professional career or in his private life. A lawyer must at no time be wanting in probity and moral fiber which are not only conditions precedent to his entrance to the Bar, but are likewise essential demands for his continued membership therein.

Lawyers are licensed officers of the courts who are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.[17] Membership in the bar imposes upon them certain obligations. [18] Canon 11 of the Code of Professional Responsibility mandates a lawyer to “observe and maintain the respect due to the courts and to judicial officers and [he] should insist on similar conduct by others.” Rule 11.05 of Canon 11 states that a lawyer “shall submit grievances against a judge to the proper authorities only.”

Respondent violated Rule 11.05 of Canon 11 when he admittedly caused the holding of a press conference where he made statements against the Order dated November 12, 2002 allowing the accused in Crim. Case No. 5144 to be released on bail.

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Respondent also violated Canon 11 when he indirectly stated that Judge Tan was displaying judicial arrogance in the article entitled, Senior prosecutor lambasts Surigao judge for allowing murder suspect to bail out, which appeared in the August 18, 2003 issue of the Mindanao Gold Star Daily. Respondent’s statements in the article, which were made while Crim. Case No. 5144 was still pending in court, also violated Rule 13.02 of Canon 13, which states that “a lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.”

In regard to the radio interview given to Tony Consing, respondent violated Rule 11.05 of Canon 11 of the Code of Professional Responsibility for not resorting to the proper authorities only for redress of his grievances against Judge Tan. Respondent also violated Canon 11 for his disrespect of the court and its officer when he stated that Judge Tan was ignorant of the law, that as a mahjong aficionado, he was studying mahjong instead of studying the law, and that he was a liar.

Respondent also violated the Lawyer’s Oath, as he has sworn to “conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.”

As a senior state prosecutor and officer of the court, respondent should have set the example of observing and maintaining the respect due to the courts and to judicial officers. Montecillo v. Gica[19] held:

It is the duty of the lawyer to maintain towards the courts a respectful attitude. As an officer of the court, it is his duty to uphold the dignity and authority of the court to which he owes fidelity, according to the oath he has taken. Respect for the courts guarantees the stability of our democratic institutions which, without such respect, would be resting on a very shaky foundation.

The Court is not against lawyers raising grievances against erring judges but the rules clearly provide for the proper venue and procedure for doing so, precisely because respect for the institution must always be maintained. WHEREFORE, in view of the foregoing, Atty. Rogelio Z. Bagabuyo is found guilty of violating Rule 11.05, Canon 11 and Rule 13.02, Canon 13 of the Code of Professional Responsibility, and of violating the Lawyer’s Oath, for which he is SUSPENDED from the practice of law for one (1) year effective upon finality of this Decision, with a STERN WARNING that the repetition of a similar offense shall be dealt with more severely.

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.

No costs.

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SO ORDERED.

A.C. No. 6986

March 6, 2006

JULIUS V. AGUSTIN, Complainant, vs. ATTY. ENRIQUE S. EMPLEO, Respondent. RESOLUTION GARCIA, J.: This is a complaint for disbarment 1 filed by complainant Julius V. Agustin against respondent Atty. Enrique S. Empleo for the latter’s failure to comply with a court order while acting as the former’s counsel, thereby resulting in the outright dismissal of a case and the complainant’s counterclaim therein. Records reveal that complainant was the defendant in Civil Case No. B-259 for Forcible Entry with Preliminary Mandatory Injunction and Damages then pending before the 2nd Municipal Circuit Trial Court (MCTC), Bindoy, Negros Oriental, in which respondent was his counsel. In the course of the proceedings in that case, the MCTC issued an Order on September 25, 1998, 2 giving the parties to the case a period of fifteen (15) days from receipt thereof within which to submit their compromise agreement or amicable settlement for the approval of the court. With no compromise agreement having been submitted by the parties within the period thus given or thereafter, the MCTC, some four (4) years later, or on August 5, 2002, issued an Order 3 dismissing Civil Case No. B-259 and the counterclaim therein for failure of the parties to prosecute. Blaming his counsel for the dismissal of the case and his counterclaim therein, complainant filed on October 18, 2004, an administrative complaint against respondent with the Integrated Bar of the Philippines (IBP), thereat docketed as CBD Case No. 04-1344. Acting on the complaint, the IBP Director for Bar Discipline, Atty. Rogelio A. Vinluan, required respondent to submit his answer thereto, otherwise he will be considered as in default and the case heard ex-parte. 4 In his answer,5 respondent admits having been complainant’s counsel in Civil Case No. B-259 and the dismissal of that case by the MCTC for the parties’ failure to submit a compromise agreement. He explained, however, that the non-submission of the compromise agreement was due to complainant’s own fault in not contacting him for the purpose of providing the details of said agreement, pointing out that counsels merely assist their clients and do not decide for them in a compromise agreement. Respondent likewise averred that complainant was not prejudiced by the dismissal of Civil Case No. B-259 for the simple reason that the latter was no less the defendant therein and it was the plaintiff who failed to prosecute the case for a long period of time. In any event, respondent alleged that the instant administrative complaint is simply complainant’s reaction to his letter dated June 15, 2004 6 relative to his (respondent’s) act of having withdrawn as complainant’s counsel in a different case pending before another court. Complainant, in his Reply-Affidavit, 7 countered that he contacted respondent several times regarding the submission of the compromise agreement in Civil Case No. B-259. The first was on October 20, 1999 at respondent’s residence as the latter was not at his office at that time, in compliance with respondent’s letter requesting to see him. The second was on April 19, 2000 when complainant went to respondent’s office on account of another case, and there reminded the latter as to the compromise agreement but respondent just made the assurance that he will be the one to make the draft and/or prepare the same. The third was on January 12, 2001, again at the respondent’s office where, after being reminded as to the compromise agreement, respondent told him not to be in a hurry because the court can wait for the compromise agreement and besides he is quite busy with other court cases. Denying that the administrative complaint is his reaction to respondent’s letter dated June 15, 2004, complainant asserted that said letter concerns another case in connection with which he is preparing another administrative case against respondent.

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In his Rejoinder,8 respondent denied that complainant contacted and reminded him about the subject compromise agreement, averring that any communication that has happened between him and the complainant pertains to another case. Respondent further averred that complainant is merely attempting to besmirch his unsullied reputation as a legal practitioner since 1975. After the termination of the mandatory preliminary conference, the parties were required to submit their respective position papers with documentary exhibits and affidavits of witnesses, if any, within twenty (20) days from notice, after which the case shall be submitted for resolution.9 Eventually, on July 26, 2005, the IBP Investigating Commissioner, Acerey C. Pacheco, submitted his Report and Recommendation. 10 Said the Commissioner in his report: It is a fact as established by the records that no compromise agreement was submitted to the court despite the receipt of the Order dated September 25, 1998. While it is true that as counsel, respondent do not decide for the complainant to enter into such kind of agreement, respondent is however, duty bound to assist the court in the speedy disposition of cases. xxx xxx xxx Respondent’s asseveration that he waited for the complainant to provide him with details of the compromise agreement but the latter failed to come does not inspire belief in the face of the denials made by the complainant. Not even a piece of paper or letter requesting the complainant to provide him with the details of the agreement was presented to substantiate such allegation. And even assuming arguendo that respondent indeed asked the complainant of such details, the period of almost four (4) years from September 25, 1998 (date of the Order requiring the submission of the compromise agreement) up to August 5, 2002 (date of the Order dismissing the case for failure to submit the same) without doing anything to avoid the case being left "hanging on the air" betrays respondent’s duty towards the court. As an officer of the court whose primary function is to assist the court in the impartial and speedy adjudication of cases, respondent ought to be vigilant and avoid any act or omission that only impedes and obstructs speedy disposition of cases. In the case at bar, the period of almost four (4) years of waiting constitutes inaction that caused unnecessary delay in the disposition of said cases. The fact that no damage or prejudice was sustained by the complainant, he being the defendant in that case, is of no moment. Thus, the Commissioner’s recommendation: WHEREFORE, premises considered, it is most respectfully recommended that herein respondent be reprimanded for his inaction over the period of almost four (4) years without doing anything and that a repetition of the same act to be dealt with accordingly. 11 On October 22, 2005, the IBP Board of Governors passed Resolution No. XVII-2005-90 12 adopting and approving the afore-quoted report and recommendation of the Investigating Commissioner, to wit: 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 as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the almost four years of inaction that caused delay in the disposition of the cases, Atty. Enrique S. Empleo is hereby REPRIMANDED and repetition of the same act shall be dealt with accordingly. We are in full accord with the findings and recommendation of the Investigating Commissioner as adopted by the IBP Board of Governors. First and foremost among the duties of a lawyer is his duty to the court. The chief mission of an attorney is to assist in the administration of justice and to this end, his client’s success in the case is subordinate. As mandated in Canon 12 of the Code of Professional Responsibility: A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE. Like the court itself, a lawyer is an instrument to advance its ends: the speedy, efficient, impartial, correct and inexpensive adjudication of

123

cases and the prompt satisfaction of final judgments. 13 A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. 14 True, a lawyer cannot enter into a compromise agreement without his client’s consent. Be it remembered, however, that a lawyer is also an officer of the court with the correlative duty to see to it that cases are disposed in the soonest possible time. Here, respondent, fully aware that there is a pending court order for the submission of a compromise agreement, should have taken pains to remind complainant about it and ascertain the true intent of the latter regarding the same, so that he, as complainant’s counsel, can make the necessary legal action in order for the case not to be unduly delayed and appear not to be indefinitely pending in the docket of the court concerned. Moreover, by respondent’s inaction to the court order in Civil Case No. B-259, he has very well violated his Attorney’s Oath to "obey the laws and legal orders of the duly constituted authorities." Lastly, we cannot but note that respondent's conduct relative to the civil case in question likewise fell short of the diligence required of his profession, in violation of Canon 18 of the Code of Professional Responsibility, which demands that a lawyer shall serve his client with competence and diligence. Rule 18.03 of said Canon further states that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. As complainant’s counsel in Civil Case No. B-259, it was incumbent upon respondent to invite his client’s attention as to the compromise agreement, especially so when there is a pending court order for the submission of the same. There is nothing in the record which shows that respondent did anything in this respect, even when, as per his admission, he and complainant were in communication at that time, albeit, with regards to another case. Thus, by just letting the court order for the submission of a compromise agreement in Civil Case No. B-259 remain unacted upon resulting in the pendency of that case for almost four (4) years until its dismissal for the parties’ non-compliance, respondent sorely failed to perform what is required of him as a lawyer and a member of the Bar. ACCORDINGLY, respondent Atty. Enrique Empleo is hereby REPRIMANDED with WARNING that a repetition of the same or similar act will be dealt with more severely. SO ORDERED.

G.R. No. L-23956

July 21, 1967

ELPIDIO JAVELLANA, plaintiff-appellant, vs. NICOLAS LUTERO, Judge of the Municipal Court of Iloilo City and the ROMAN CATHOLIC ARCHBISHOP OF JARO, defendants-appellees. Hautea and Hinojales for plaintiff-appellant. Luisito C. Hofileña for defendants-appellees. CASTRO, J.: This is an appeal from a decision of the Court of First Instance of Iloilo (CC 6425) dismissing a petition for relief directed against the judgment rendered by the municipal court of Iloilo City in its civil case 7220. On March 29, 1963 the Roman Catholic Archbishop of Jaro, Iloilo filed a detainer complaint against Elpidio Javellana with the municipal court of Iloilo City, presided by Judge Nicolas Lutero. The hearing, originally set for April 30, 1963, was postponed to May 24 for failure of the defendant to receive summons, and then postponed again to June 27 for the same reason. It was thereafter postponed to July 16, then to July 24, and finally to August 27, all at the behest of the defendant's Atty. Jose Hautea, on the grounds that "he has not finished his business transactions in Manila" and that "he hurt his right foot toe." The last postponement was granted by the municipal court with the warning that no further postponement would be entertained.

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When the case was called for trial on August 27, 1963, neither the defendant nor his counsel Atty. Hautea appeared although one Atty. Romy Peña who was present in court verbally moved for the postponement of the trial on the ground that Atty. Hautea was in Manila attending to a business transaction. The plaintiff's counsel objected to the motion on the ground that the defendant and his counsel were well aware of the court's previous admonition that no further postponement of the case would be granted, and then manifested that the witnesses and the evidence for the plaintiff were ready for presentation on that date. The verbal motion for postponement was denied and the plaintiff was directed to adduce his evidence. During the presentation of the plaintiff's evidence, the municipal court received a telegram from Atty. Hautea requesting postponement of the hearing. The trial proceeded nevertheless, and, on the basis of the plaintiff's evidence, the court on the same date rendered judgment for the plaintiff and against the defendant. The latter's counsel received a copy of the decision on September 9, 1963. On the following September 11, he filed a motion to set aside judgment and for new trial. This motion was denied on September 26; a copy of the order of denial was received by him on the same date. On November 16, 1963, or about 50 days later, the defendant thru his same counsel filed a petition for relief (from the judgment of the municipal court)with the Court of First Instance of Iloilo, praying that the decision in question be set aside, that the detainer case be set for trial on the merits, and, pending determination of the petition, that an injunction issue restraining the enforcement of the decision. Counsel for the petitioner averred that his absence on the date of the trial was excusable as he attended to a very urgent business transaction in Manila; that before his departure for the latter city, he verbally informed the respondent judge that his return to Iloilo might be delayed and that he might not arrive on time for the trial of the case as set; that he called at both the law office and the residence of the counsel for the private respondent to inform him of the desired postponement and the reason therefor, but the latter was in Bacolod at the time; that he exercised utmost diligence and precaution in the sense that while in Manila he sent a telegram to the respondent judge, asking for postponement; and that notwithstanding all the foregoing, the municipal court nevertheless proceeded with the trial in his absence and that of his client, allowed the private respondent to present his evidence ex parte, and rendered a decision against the petitioner, thus depriving the latter of his day in court. Counsel for the petitioner further asserted that his client has a good and substantial defense, which is, that the complainant had given his client an option to buy the premises subject-matter of the complaint below, and that a reopening of the case would cause the private respondent no real injury. This petition was given due course, the respondents were required to file their answers, and a cease-and-desist order was issued as prayed for. On February 22, 1964, after due hearing, the Court of First Instance rendered judgment dismissing the petition.1äwphï1.ñët Hence the present recourse. From the perspective of the environmental circumstances obtaining in this case, the present appeal is palpably devoid of merit. A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bound to prepare for trial with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and uncomplicated. It is obvious that the counsel for the petitioner-appellant has been remiss in this respect. The case was set for trial six times. Thrice it was postponed at the behest of the said counsel. The last postponement was granted on July 24, 1963 with the unequivocal admonition by the judgment that no further postponement would be countenanced. The case was reset for hearing on August 27, 1963, which means that the appellant's counsel had more than a month's time to so adjust his schedule of activities as to obviate a conflict between his business transactions and his calendar of hearings. Came August 27, and neither he nor the appellant appeared at the trial. His absence on the latter date was not occasioned by illness or some other supervening occurrence which unavoidably and justifiably prevented him from appearing in court. In our view, it was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the case. As things were, he regarded the municipal court as a mere marionette that must ever await his pleasure. This attitude on his part is censurable as it reveals more than just a modicum of disrespect for the judiciary and the established machinery of justice. Nor is his censurable conduct mitigated by the appearance in court on August 27 of another attorney who verbally moved for postponement nor by his telegram received by the municipal judge on the same date asking for continuance. These circumstances, upon the contrary, emphasize his presumptuousness vis-a-vis the municipal judge. It is thus crystal-clear from the foregoing disquisition that the petitioner-appellant was not deprived of his day in court, and that the respondent municipal judge did not err in proceeding with the trial, allowing the private respondent to present his evidence ex parte, and thereafter rendering decision for the plaintiff-appellee. It follows that the petitioner was not entitled to the remedy of a petition for relief.

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Moreover, after the denial of his motion to set aside judgment and for new trial, the appellant had ample time to appeal; instead he allowed the judgment to become final and executory. His argument that an appeal would have been futile as there was no evidence upon which such appeal could be based, merits scant consideration. An appeal from the decision of a municipal court to the Court of First Instance has the effect of vacating the decision (sec. 9, Rule 40, view Rules of Court; sec. 9, Rule 40, of the old Rules), and the action is to be tried de novo without regard to the proof presented in the municipal court or the conclusions reached thereon (Colegio de San Jose vs. Sison, 56 Phil. 344, 351; Lizo vs. Carandang, 73 Phil. 649; Crisostomo vs. Director of Prisons, 41 Phil. 368). To grant the appellant's petition for relief would amount to reviving his right to appeal which he had irretrievably lost through the gross inaction of his counsel (see Espinosa vs. Yatco, etc., et al., L-16435, Jan. 31, 1963, and the cases therein cited). This in law cannot be done. Accordingly, the decision appealed from is affirmed. As this appeal is patently frivolous and dilatory, this Court, under the authority of section 3 of Rule 142 of the Rules of Court, hereby assesses treble costs against the petitioner-appellant Elpidio Javellana, said costs to be paid by his counsel, Atty. Jose Hautea. A.C. No. 6323

April 13, 2007

PABLO R. OLIVARES and/or OLIVARES REALTY CORPORATION, Complainants, vs. ATTY. ARSENIO C. VILLALON, JR., Respondent. RESOLUTION CORONA, J.: This is a complaint1 for disbarment and suspension2 against respondent Atty. Arsenio C. Villalon, Jr. by Pablo R. Olivares and/or Olivares Realty Corporation for violation of Rule 12.02, Canon 12 of the Code of Professional Responsibility and the rule on forum shopping. In his complaint, Olivares alleged that respondent’s client, Sarah Divina Morales Al-Rasheed, repeatedly sued him for violations of the lease contract which they executed over a commercial apartment in Olivares Building in Parañaque. 3 In 1993, Al-Rasheed filed an action for damages and prohibition with prayer for preliminary mandatory injunction in the Regional Trial Court of Manila.4 The case was dismissed for improper venue.5 Six years later, on July 1, 1999, Al-Rasheed filed an action for breach of contract with damages in the Regional Trial Court of Parañaque, Branch 274. 6 The case, docketed as Civil Case No. 99-0233, was dismissed for failure to prosecute. 7 Al-Rasheed, through counsel Atty. Villalon, sought a review of the order dismissing Civil Case No. 99-0233 but the Court of Appeals did not give due course to her appeal. 8 The subsequent petition for review on certiorari filed in the Supreme Court was likewise denied. 9 On January 29, 2004, Al-Rasheed re-filed the 1999 suit in the Regional Trial Court of Parañaque, Branch 274 10 where it was docketed as Civil Case No. 0J-04-009.11 It was dismissed on the grounds of res judicata and prescription.12 Respondent, on the other hand, asserts that he was only performing his legal obligation as a lawyer to protect and prosecute the interests of his client.13 He denied that he was forum shopping as his client, in her certificate of non-forum shopping, 14 disclosed the two previous cases involving the same cause of action which had been filed and dismissed. 15 Respondent further claims he could not refuse his client’s request to file a new case because Al-Rasheed was the "oppressed party" in the transaction. 16 This Court referred the complaint, together with respondent’s comment, to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.17 The Commission on Bar Discipline (CBD) of the IBP found that respondent assisted Al-Rasheed in repeatedly suing Olivares for the same cause of action and subject matter. 18 It opined that respondent should have noted that the 1999 case was dismissed for lack of interest to prosecute.19 Under Rule 17, Section 3 of the Rules of Court, such dismissal had the effect of an adjudication on the merits. 20 The CBD recommended the suspension of respondent for six months with a warning that any similar infraction in the future would be dealt with more severely.21

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The IBP adopted and approved the findings of the CBD that respondent violated Rule 12.02, Canon 12 of the Code of Professional Responsibility as well as the proscription on forum shopping. It, however, modified the recommended penalty to reprimand. 22 We adopt the findings of the IBP except its recommendation as to the penalty.1a\^/phi1.net All lawyers must bear in mind that their oaths are neither mere words nor an empty formality. When they take their oath as lawyers, they dedicate their lives to the pursuit of justice. They accept the sacred trust to uphold the laws of the land. 23 As the first Canon of the Code of Professional Responsibility states, "[a] lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes."24 Moreover, according to the lawyer’s oath they took, lawyers should "not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same."25 With all this in mind, respondent should have refrained from filing the second complaint against Olivares. He ought to have known that the previous dismissal was with prejudice since it had the effect of an adjudication on the merits. There was no excuse not to know this elementary principle of procedural law. The facts of this case reveal that Atty. Villalon purposely filed the second complaint. Respondent appealed the 1999 case to the Court of Appeals and subsequently to this Court. Both actions were dismissed for lack of merit, not on mere technicality. The certificate of nonforum shopping attached to the 2004 complaint disclosed that Al-Rasheed previously sued Olivares for violating their lease contract. As if such disclosure was a sufficient justification, Atty. Villalon unapologetically reproduced his 1999 26 arguments and assertions in the 200427 complaint. Respondent obviously knew the law and tried to go around it. This Court therefore concludes that respondent willfully violated Rule 12.02, Canon 12 which provides that: A lawyer shall not file multiple actions arising from the same cause. Furthermore, he violated Rule 10.03, Canon 10 of the Code of Professional Responsibility: A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. A lawyer’s fidelity to his client must not be pursued at the expense of truth and justice. 28 Lawyers have the duty to assist in the speedy and efficient administration of justice. Filing multiple actions constitutes an abuse of the Court’s processes. It constitutes improper conduct that tends to impede, obstruct and degrade justice. Those who file multiple or repetitive actions subject themselves to disciplinary action for incompetence or willful violation of their duties as attorneys to act with all good fidelity to the courts, and to maintain only such actions that appear to be just and consistent with truth and honor. 29 Everything considered, this Court finds that a reprimand is insufficient and rules instead that CBD’s recommendation for a six-month suspension from the practice of law to be more commensurate to the violation committed. However, in view of respondent’s death on September 27, 2006,30 the penalty can no longer be imposed on him. This development has, in effect, rendered this disciplinary case moot and academic. SO ORDERED. [G.R. No. 133625. September 6, 2000] REMEDIOS F. EDRIAL, MAURO EDRIAL JR., MARYLENE EDRIAL, ILDEFONSO EDRIAL, ROSALIND EDRIAL, MARY JEAN EDRIAL, and SUSAN EDRIAL-VALENZUELA, petitioners, vs. PEDRO QUILAT-QUILAT, GABRIELA QUILAT-QUILAT, ISIDRA QUILAT-QUILAT, and ESTANISLAO QUILAT-QUILAT, respondents. DECISION PANGANIBAN, J.: Parties who prayed for and were granted several postponements and caused repeated delays cannot ask for the reopening of the trial for the purpose of presenting additional evidence. After squandering several opportunities given them to ventilate their claims, they can no longer complain of alleged violation of their right to due process. The Case

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Before us is a Petition for Review on Certiorari, assailing the October 17, 1997 Decision[1] and the March 19, 1998 Resolution[2] of the Court of Appeals (CA)[3] in CA-GR SP No. 42660. The CA affirmed the Order of the trial court, which had denied their Motion to Reopen the Case and to allow them to complete the presentation of their evidence. The assailed Decision disposed as follows:[4] "WHEREFORE, the instant petition is hereby DISMISSED." The Resolution denied reconsideration of the challenged Decision. The Facts

Respondents Pedro, Gabriela, Isidra and Estanislao - all surnamed Quilat-Quilat -- filed an action for recovery of a parcel of land against Petitioners Remedios, Mauro Jr., Marylene, Idelfonso, Rosalind, Mary Jean -- all surnamed Edrial -- and Susan Edrial-Valenzuela. The case was docketed as Civil Case No. 6315 and raffled to Branch 39 of the Regional Trial Court (RTC) of Dumaguete City.[5] The Court of Appeals presented the facts of this case as follows: "Atty. Gerardo Lituanas, a lawyer of the LAPIL (IBP) Negros Oriental, who was also an [e]lection [r]egistrar of the COMELEC, filed the complaint in 1975; Atty. Lituanas was able to present evidence on the following dates: July 10, 1981 First plaintiffs' witness Atilano Ramirez, 73 years old, was presented; July 16, 1981 Continuation of the testimony of Atilano Ramirez; August 24, 1982 Continuation of the testimony of Atilano Ramirez; November 20, 1984 Continuation of the testimony of Atilano Ramirez; February 28, 1984 Direct Examination of 2nd Plaintiffs' witness Ignacio Tomias. Cross-examination was waived. August 21, 1985 Plaintiff Pedro Quilat-Quilat was presented on direct examination. "On December 16, 1986, the Citizen Legal Assistance Office (CLAO) entered its appearance as new [private respondents'] counsel after Atty. Gerardo Lituanas has filed his withdrawal. The subsequent events are as follows: February 23, 1987 The case was set for hearing on April 21, 1987. April 21, 1987 The hearing was reset due to the projected amendment of the complainant to implead Primitiva Torrecampo. June 19, 1987 The third amended complaint was admitted. September 9, 1987

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Hearing was postponed at the instance of the defendants [herein petitioners]. October 22, 1987 The hearing was suspended for the reason that the Court would require the [private respondents] to submit a certification from the Bureau of Forest Development that the land involved in this case [was] not a part of the public forest. December 17, 1987 The hearing was postponed at the request of [private respondents'] counsel for the reason that she [would] be attending [a] conference in Cebu City. March 18, 1988 The hearing was aborted due to the fact that the Bureau of Forest Development report ha[d] not yet been finished. July 5, 1988 The hearing [was] reset upon agreement of both counsel. September 15, 1988 The hearing [was] reset upon the Court's instance. December 8, 1988 No hearing was held as the certification from the Bureau of Forest Development [was] being awaited. March 16, 1989 The said certification [was] still being awaited. May 25, 1989 The testimony of [Private Respondent] Pedro Quilat-Quilat [was] suspended after a question was [propounded] that would require him to use reading eyeglasses which he did not have at the moment. December 14, 1989 Hearing [was] reset due to the illness of [private respondents'] counsel. September 20, 1990 Atty. Eleccion, [petitioners'] counsel did not appear despite due notice. At this time, the [private respondents] rested their case. October 15, 1990 Atty. Eleccion [private respondents'] counsel did not appear. Hearing [was] reset to October 16, 1990. October 16, 1990 Atty. Eleccion did not appear. Hearing [was] reset to December 10, 11 and 12. December 10, 1990 Atty. Eleccion asked for postponement. Hearing [was] reset to December 11, 1990. December 11, 1990 Atty. Eleccion did not appear. The case [was] submitted for decision as of th[at] day.

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August 21, 1992 The transcript of stenographic notes which was taken down by stenographer Alexander Yberley, was missing. He was ordered to produce the transcript. October 30, 1992 Witness Atilano Ramirez was recalled for cross-examination since stenographer Yberley manifested that the record was burned. Despite due notice, nobody appeared for the [petitioners]. So as of this day, the cross-examination of Atilano Ramirez was considered waived and the case was finally submitted for decision. December 11, 1992 Court granted the prayer of Atty. Sedillo and the case [was] set for hearing on March 22, 29 and April 5 1993. March 22, 1993 Atty. Sedillo did not present evidence but instead moved for a resetting of the hearing to April 12, 1993. He [was] advised by the Court to be prepared on the next scheduled hearing. June 4, 1993 Judge [was] on leave. Hearing [was] reset to July 2, 1993. July 2, 1993 Flaviano Umbac was presented as first [petitioners'] witness. Hearing [was] scheduled [for] August 27, 1993. August 27, 1993 [Petitioners] moved for a resetting to October 7, 1993. October 7, 1993 Atty. Bongaciso was presented as second witness for the [petitioners]. His testimony [was] terminated and hearing [was] reset to December 13, 1993. December 13, 1993 Judge [was] on leave. Hearing [was] reset to February 14, 1994. February 14, 1994 Hearing [was] reset at the instance of Atty. Sedillo who want[ed] to recall his witness Atty. Bonganciso. Hearing [was] reset to March 23, 1994. March 24, 1994 Hearing [was] postponed to May 6, 1994 to find avenue for settlement. May 6, 1994 Due to the conflict of schedule by Atty. Sedillo and due to the absence of recalled 2 nd [petitioners'] witness Bongaciso, hearing [was] reset to June 17, 1994. June 17, 1994 Atty. Sedillo asked for postponement. He [would] attend a Kiwanis Training Conference. Hearing [was] reset to July 4, 1994.

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July 4, 1994 Atty. Sedillo was present but Atty. Rosalinda Ybanez [was] available at 10:00 a.m. so the case [was] reset to August 15, 1994. August 15, 1994 Judge [was] on leave. Hearing [was] reset to October 3, 1994. October 3, 1994 The hearing [was] reset to November 17, 1994 due to non-availability of [petitioners'] witness Atty. Roque Bonganciso who [was] on recall. November 17, 1994 There [was] talk about [a] proposed settlement, hearing [was] held in abeyance. January 6, 1995 Since no settlement [was] realized a [private respondents'] motion to set [the] case for hearing was filed and the case was reset to [February] 27, 1995. February 27, 1995 Earlier, [petitioners'] counsel, Atty. Sedillo filed a motion for postponement as he [would be] appearing in a case in Manila. Atty. Ybanez manifested that on February 26, 1995 Atty. Sedillo was in Dumaguete and further that this case ha[d] been delayed by the failure of the [petitioners] to complete the presentation of their evidence. The Court then ordered the case submitted for decision for the THIRD TIME. March 16, 1995 The Court issued an order reconsidering the February 27, 1995 order upon motion of Atty. Sedillo and set the case for the [petitioners] for June 16, 1995 with a STERN WARNING TO THE [PETITIONERS]. June 16, 1995 The hearing set for [this day] was cancelled as the Judge [was] on leave and reset to September 8, 1995. September 8, 1995 The [petitioners'] counsel did not appear. Hearing [was] reset to November 16, 1995. November 16, 1995 The [petitioners'] counsel did not appear. Neither did his client. The hearing [was] reset to February 13, 1996. February 9, 1996 The [petitioners'] counsel filed a motion to withdraw as counsel. February 12, 1996 The Court issued an order granting the withdrawal of the [petitioners'] counsel. The [petitioners were] directed to immediately engage the services of a new counsel. This notice was received personally by the wife of [Petitioner] Mauro Edrial, Jr. February 13, 1996

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The Court issued an order setting the case [for] April 26, 1996. This order was received by the wife of the [Petitioner] Mauro Edrial, Jr. April 26, 1996 There was no appearance from the [petitioners]. Hence, the case was submitted for decision for the FOURTH TIME. July 8, 1996 Atty. Sedillo filed a motion to reopen the case and in effect reentered his appearance. August 20, 1996 Private respondents thru counsel filed opposition to the motion of the [petitioners]. September 6, 1996 The Hon. Judge issued an order denying the motion to reopen hereby affirming the April 26, 1996 order submitting the case for decision. September 11, 1996 [Petitioners] filed a motion for reconsideration. October 2, 1996 Court denied the motion for reconsideration. October 23, 1996 Private respondents received a copy of the Petition for Certiorari."[6] Ruling of the Court of Appeals

The CA dismissed petitioners' appeal because, in issuing the questioned Orders, the trial judge committed no grave abuse of discretion amounting to lack of jurisdiction. In giving petitioners more than ample time to complete their presentation of evidence and in granting their Motions for Postponement, the judge was accommodating them more than they actually deserved. Hence, this Petition.[7] Issues

Petitioners submit that the CA erred in affirming the twin Orders of the Dumaguete City RTC, Branch 39. They contend that a reversal thereof would have allowed them to complete their presentation of evidence. Hence, by affirming those Orders, the CA allegedly violated their right to due process.[8] This Court's Ruling

The Petition is without merit. Main Issue Due Process and Reopening of Trial

Counsel for petitioners alleges that the addresses of his clients on file in his law firm were incorrect; hence, the notices and other forms of communication he had sent to them were not received. He allegedly discovered this fact only after he had filed his withdrawal as their counsel. He also argues that the denial of the Motion to Reopen Trial was "plainly capricious and oppressive" because private respondents were equally guilty of delay and procrastination. Finally, he maintains that allowing petitioners to present their remaining evidence would be "in the interest of substantial due process and humane justice."

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Respondents disagree, reasoning that the trial court thrice reconsidered its Order to submit the case for decision; that is, petitioners were given several opportunities to present their evidence, but they squandered them. Petitioners, they further point out, were intentionally seeking to delay the resolution of the case because they were in physical possession of the land in dispute. Counsel's excuses are unsatisfactory and unacceptable. The CA ruled that petitioners were given "more than enough time" to complete their presentation of evidence. Respondents rested their case as early as September 1992. Petitioners' lawyer, at his own request, was allowed to start presenting evidence only on April 12, 1993. From that day until April 26, 1996 or for a period of three years, counsel presented only two witnesses. The trial judge was in fact liberal in granting petitioners' Motions for Postponement. But enough was enough; when they attempted to delay the trial some more, the trial judge finally and correctly refused to go along. True, respondents also asked for continuances, but petitioners were ultimately to blame for the inexcusable delay. The case was submitted for decision three times -- on December 11, 1990, October 30, 1992, and February 27, 1995 - but petitioners and/or their counsel did not appear in court each time. After having failed to take advantage of opportunities to ventilate their claims below, parties may no longer be accorded the same chances, in the absence of grave abuse of discretion on the part of the trial court, as in this case.[9] The Court frowns on lawyers' practice of repeatedly seeking extensions of time to file pleadings and thereafter simply letting the period lapse without submitting any pleading or even any explanation or manifestation of their failure.[10] The same principle applies more forcefully to motions for continuance. Postponement is not a matter of right, but of sound judicial discretion. Actions thereon will not be disturbed by appellate courts in the absence of a clear or manifest abuse of discretion, resulting in a denial of substantial justice.[11] We concur with the CA that there is no such denial in this case. It is highly suspicious how the counsel for petitioners continued to represent his clients effectively for several years despite allegedly having lost their correct addresses. It was definitely his duty to know the correct ones. Indeed, it was too late for him to do so after he had withdrawn as their counsel. According to him, after April 16, 1996, he sent an office employee to verify the whereabouts of Mauro Edrial Jr. The inquiry yielded the information that Mauro actually resided in San Jose, Negros Oriental, and that Susan Edrial Valenzuela resided in Gomez St., Dumaguete City.[12] He should have undertaken the search before withdrawing as counsel. Further, notice might not have been received by petitioners themselves, but that did not excuse counsel's failure to appear during trials. Counsel for petitioners further avers that he had difficulty in presenting Atty. Roque Bonganciso because of the latter's prior commitments which conflicted with the scheduled trial dates. The last witness was Mauro Edrial Jr., but counsel had the wrong address on file. He should just have adjusted the order of presentation of witnesses and called Edrial Jr. later. Such move could have prevented the postponement. Besides, finding an available date in his calendar would not have taken Atty. Bonganciso three years. The Code of Professional Responsibility requires that lawyers, after obtaining extensions of time to file pleadings, memoranda or briefs, shall not let the period lapse without submitting the same or offering an explanation for their failure to do so (Rule 12.03).[13] Moreover, they should avoid any action that would unduly delay a case, impede the execution of a judgment or misuse court processes (Rule 12.04). For the benefit of the bench and bar, worth repeating is the CA's reminder to petitioners' counsel of his duty to his client and to the court: "Being an officer of the court a lawyer is part of the machinery in the administration of justice. Like the court itself, he is an instrument to advance its ends-the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice."[14] WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against the petitioners. SO ORDERED. A.C. No. 3283 July 13, 1995 RODOLFO MILLARE, petitioner, vs. ATTY. EUSTAQUIO Z. MONTERO, respondent.

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QUIASON, J.: This is a complaint for disbarment. Pursuant to paragraph 2, Section 1, Rule 139-B of the Revised Rules of Court, this Court resolved to refer it to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. On April 15, 1994, the IBP Board of Governors rendered a decision, finding respondent guilty of malpractice and recommending that he be suspended from the practice of law. I Pacifica Millare, the mother of the complainant, obtained a favorable judgment from the Municipal Trial Court, Bangued, Abra (MTC) which ordered Elsa Dy Co to vacate the premises subject of the ejectment case (Civil Case No. 844). Co, through respondent as counsel, appealed the decision to the Regional Trial Court, Branch 11, Bangued, Abra (RTC). She neither filed a supersedeas bond nor paid the rentals adjudged by the MTC. The RTC affirmed in toto the decision of the MTC. The Court of Appeals (CA) dismissed Co's appeal from the decision of the RTC for failure to comply with Section 22 of B.P. Blg. 129 and Section 22(b) of the Interim Rules and Guidelines (CA-G.R. CV No. 11404). According to the CA, Co should have filed a petition for review and not an ordinary appeal (Rollo, Vol. I, p. 22). The judgment of the MTC became final and executory on November 19, 1986. On January 2, 1987, a Manifestation and Motion was filed by respondent as counsel for Co in CA-G.R. CV No. 11404, arguing that the decisions of the MTC and the RTC were null and void for being contrary to law, justice and equity for allowing the lessor to increase by 300% the rentals for an old house. Respondent, admitting his mistake in filing an ordinary appeal instead of a petition for review, prayed that he be allowed to file an action for annulment. On February 23, 1987, the CA gave due course to respondent's Manifestation and Motion and let the records remain with it. However, on November 10, 1987, the said court ordered the records in CA-G.R. CV No. 11404 to be remanded to the court a quo. On March 9, 1987, respondent filed with the CA a Petition for Annulment of Decisions and/or Reformation or Novation of Decisions of the MTC and the RTC (CA-G.R. SP No. 11690), insisting that the decisions were not in accordance with existing laws and policies. On December 17, 1987, the CA dismissed the petition for annulment or novation explaining that — . . . , aside from the reliefs provided in these two sections (Secs. 1 & 2, Rule 38), there is no other means whereby the defeated party may procure final and executory judgment to be set aside with a view to the renewal of the litigation, unless (a) the judgment is void for want of jurisdiction or lack of due process of law, or (b) it has been obtained by fraud, . . . . There is no allegation in the present complaint to the effect that the judgments in the former cases were secured through fraud (Rollo, Vol. I, p. 35; Emphasis supplied). On January 15, 1988, respondent filed an Urgent Motion for Reconsideration and Motion to Set Motion for Reconsideration for Oral Arguments of the CA decision. The CA denied the motion. Again, respondent requested the CA to set his Motion For Oral Arguments on April 14, 1988. In a resolution dated February 12, 1988, the CA denied the Motion for Oral Argument and in a resolution dated October 18, 1988, denied the motion for reconsideration of the February 12 Resolution. Respondent then filed a Petition for Review on Certiorari with this Court (G.R. No. 86084) questioning the decisions of the MTC and the RTC in favor of petitioner's mother. In a Resolution dated January 4, 1989, we denied the petition for having been filed and paid late on December 12, 1988 and November 12, 1988, respectively. A motion for reconsideration from such resolution was likewise denied with finality. Respondent filed a Motion for the Issuance of a Prohibitory or Restraining Order (dated July 6, 1988) in CA-G.R. SP No. 11690. On April 12, 1988, the mother of complainant filed a Motion for Execution of the judgment in Civil Case No. 844. Respondent filed an Opposition to the Motion for Execution on the ground that the case was still pending review by the CA in CA-G.R. SP No. 11690 and therefore the motion for execution was premature. On August 23, 1988, the MTC ordered the issuance of a writ of execution. Respondent filed a motion for reconsideration, which was denied. The RTC affirmed the order for the issuance of the writ of execution. Thus, a writ of

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execution was issued on October 18, 1988. On October 26, 1988, respondent filed a special civil action (SP CV No. 624) with the RTC, Branch 1, Bangued, Abra for certiorari, prohibition, mandamus with preliminary injunction against the MTC, Provincial Sheriff and complainant's mother, seeking to annul the writ of execution issued in MTC Civil Case No. 844 and RTC Civil Case No. 344. Respondent alleged that the order granting the writ of execution was issued with grave abuse of discretion amounting to lack of jurisdiction since a petition to annul the decisions (CA-G.R. SP No. 11690) was still pending with the CA. On October 28, 1988, the provincial sheriff, Romulo V. Paredes, deferred the implementation of the writ of execution until the petition filed in SP CV No. 624 for certiorari was resolved. The CA denied in SP CV No. 624 respondent's Urgent Motion to Set Aside and Declare Null and Void the Writ of Execution. From the decision of the RTC, Branch 1, Abra in SP CV No. 624 denying the Petition for Certiorari, Prohibition, Mandamus with Preliminary Issuance of Prohibitory Order, respondent again filed an Appeal and/or Review by Certiorari, Etc. with the CA (CA-G.R. SP No. 17040). II We have no reason to reverse the findings of the IBP Board of Governors. Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire. Advocacy, within the bounds of the law, permits the attorney to use any arguable construction of the law or rules which is favorable to his client. But the lawyer is not allowed to knowingly advance a claim or defense that is unwarranted under existing law. He cannot prosecute patently frivolous and meritless appeals or institute clearly groundless actions (Annotated Code of Professional Responsibility 310 [1979]). Professional rules impose limits on a lawyer's zeal and hedge it with necessary restrictions and qualifications (Wolfram, Modern Legal Ethics 579-582 [1986]). Under Canon 12 of the Code of Professional Responsibility, a lawyer is required to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Implementing said Canon are the following rules: Rule 12.02. — A lawyer shall not file multiple actions arising from the same cause. xxx xxx xxx Rule 12.04. — A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes. It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the execution of a judgment (Edelstein, The Ethics of Dilatory Motions Practice: Time for Change, 44 Fordham L. Rev. 1069 [1976]; Overmeyer v. Fidelista and Deposit Co., 554 F. 2d 539, 543 [2d Cir. 1971]). The rights of respondent's client in Civil Case No. 844 of the MTC were fully protected and her defenses were properly ventilated when he filed the appeal from the MTC to the RTC. But respondent thereafter resorted to devious and underhanded means to delay the execution of the judgment rendered by the MTC adverse to his client. The said decision became executory even pending its appeal with the RTC because of the failure of Co to file a supersedeas bond and to pay the monthly rentals as they fell due. Furthermore, his petition for annulment of the decisions of the MTC and RTC which he filed with the CA (CA-G.R. No. 11690) was defective and dilatory. According to the CA, there was no allegation therein that the courts had no jurisdiction, that his client was denied due process, or "that the judgments in the former cases were secured through fraud." As ruled in Regidor v. Court of Appeals, 219 SCRA 530 (1993): A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction or for lack of due process of law, or (b) that it has been obtained by fraud. . . . (at p. 534). Moreover, when the CA ordered that the records of the case be remanded, respondent knew very well that the decision of the MTC was already ripe for execution.

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This Court, in People of Paombong, Bulacan v. Court of Appeals, 218 SCRA 423 (1993), ruled: . . . [w]hen the judgment of a superior court is remanded to the trial court for execution, the function of the trial court is ministerial only; the trial court is merely obliged with becoming modesty to enforce that judgment and has no jurisdiction either to modify in any way or to reverse the same. . . . (at p. 430). (See also Valenzona v. Court of Appeals, 226 SCRA 306 [1993] and Garbo v. Court of Appeals, 226 SCRA 250 [1993]). Respondent filed a total of six appeals, complaints or petitions to frustrate the execution of the MTC judgment in Civil Case No. 844, to wit: (1) Civil Case No. 344 — Appeal from the decision rendered in Civil Case No. 844 of the Municipal Trial Court, Bangued, Abra, with the Regional Trial Court, Abra; (2) CA-G.R. CV No. 11404 — Appeal from the decision of the Regional Trial Court, Abra; (3) CA-G.R. SP No. 11690 — An Action For the Annulment of Decisions And/Or Reformation or Novation of Decisions filed with the Court of Appeals; (4) G.R. No. 86084 — Petition For Review On Certiorari filed with the Supreme Court; (5) CA-G.R. SP No. 17040 — Appeal And/Or Review By Certiorari, Etc. filed also with the Court of Appeals; and, (6) SP Civil Action No. 624 — Petition For Certiorari, Prohibition, Mandamus with Preliminary Issuance of Prohibitory Order filed with the Regional Trial Court, Branch 1, Bangued, Abra. Judging from the number of actions filed by respondent to forestall the execution of the same judgment, respondent is also guilty of forum shopping. In Villanueva v. Adre 172 SCRA 876 (1989), the Court explained that forum shopping exists when, by reason of an adverse decision in one forum, defendant ventures to another for a more favorable resolution of his case. In the case of Gabriel v. Court of Appeals, 72 SCRA 272 (1976), this Court explained that: Such filing of multiple petitions constitutes abuse of the Court's processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to add, the lawyer who filed such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts and to maintain only such actions as appear to him to be just and are consistent with truth and honor (at p. 275). By having wilfully and knowingly abused his rights of recourse in his efforts to get a favorable judgment, which efforts were all rebuffed, respondent violated the duty of a member of the Bar to institute actions only which are just and put up such defenses as he perceives to be truly contestable under the laws (Garcia v. Francisco, 220 SCRA 512 [1993]). As correctly noted by the Committee on Bar Discipline "in filing a number of pleadings, actions and petitioner, respondent 'has made a mockery of the judicial processes' and disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered, thus, 'abused procedural rules to defeat ends of substantial justice'" (Report and Recommendation, IBP Committee on Bar Discipline, p. 2). WHEREFORE, respondent is SUSPENDED for one year. SO ORDERED. JONAR SANTIAGO,

A.C. No. 6252

Complainant, Present:

Panganiban, J.,

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Chairman, - versus -

Sandoval-Gutierrez, Corona, and Carpio Morales,* JJ Promulgated:

Atty. EDISON V. RAFANAN, Respondent.

October 5, 2004

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

DECISION

PANGANIBAN, J.:

N

otaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof. __________________ *

On leave.

The Case and the Facts

Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice 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 Canons 12.07[5] and 12.08

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of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise:

“x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code.

“Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats.”[6]

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Rafanan filed his verified Answer.[8] He admitted having administered the oath to the affiants whose Affidavits were attached to the verified Complaint. He believed, however, that the

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non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants’ residence certificates on the documents they notarized, or have entries in their notarial register for these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients “on substantial matters, in cases where [their] testimony is essential to the ends of justice.” Complainant charged respondent’s clients with attempted 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.”

Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the 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 Certifications[10] from the Cabanatuan City Police and the Joint Affidavit[11] of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.

After receipt of respondent’s Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two o’clock 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 to do so, apparently because he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3, 2001 at two o’clock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply[14] to the verified Answer of respondent. The latter’s Rejoinder was received by the CBD on July 13, 2001.[15] It also received complainant’s 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 submitted for resolution.

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The CBD received complainant’s Memorandum[18] on September 26, 2001. Respondent did not file any.

The IBP’s Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172[19] approving and adopting the Investigating Commissioner’s Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiant’s residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the investigating commissioner by increasing the fine to “P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty.”

The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -were dismissed for insufficiency of evidence.

The Court’s Ruling

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

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Respondent’s Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document 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]

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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 readily admitted -- that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so. Being swayed by the bad example of others is not an acceptable justification for breaking the law. We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondent’s clients Ernesto Ramos and Rey Geronimo, as well as their witnesses’ Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainant’s brother against the aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the oath -- to “certify that he has personally examined the affiants and that he is satisfied that they 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 the certification requirement.

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It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes.[26] They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence. [27] It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed 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 respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public. Nonetheless, we do not agree with complainant’s plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.[29] Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.[30] Considering the nature of the infraction and the absence of 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.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondent’s clients, allegedly in violation of Rule 12.08 of the CPR: “A lawyer shall avoid testifying in behalf of his client.”

Rule 12.08 of Canon 12 of the CPR states: “Rule 12.08 – A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument and the like; 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.”

Parenthetically, under the law, a lawyer is not disqualified from being a witness,[31] except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.[32]

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients.

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“Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyer’s client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful.”[33]

Thus, although the law does not forbid lawyers from being 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; and should they do so, to withdraw from active management of the case.[34]

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons: First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latter’s life and liberty are at stake.[35] It is the fundamental right of the accused to be afforded full opportunity to 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 ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as 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 or property, except by due process of law.[36]

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged 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 Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.[37] Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; 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 State from useless and expensive prosecutions.[38] The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which 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 may become essential to serve the “ends of justice,” the canons of the profession require him to withdraw from the active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence. Allegation 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

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version of respondent that is more credible, considering that the latter’s allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely.

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SO ORDERED.

ERLINDA I. BILDNER and MAXIMO K. ILUSORIO,

G.R. No. 157384

Petitioners, - versus -

Present:

ERLINDA K. ILUSORIO, RAMON K. ILUSORIO, MARIETTA K. ILUSORIO, SHEREEN K. ILUSORIO, CECILIA A. BISUÑA, and ATTY. MANUEL R. SINGSON, Respondents.

QUISUMBING, J., Chairperson, YNARESSANTIAGO,* VELASCO, JR., LEONARDO-DE CASTRO,** and BRION, JJ.

Promulgated:

June 5, 2009 x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

In this petition filed directly with the Court in accordance with Rule 71, Section 5 of the Rules of Court, Erlinda I. Bildner and Maximo K. Ilusorio pray that respondents, one of them their mother and three their siblings, be cited for indirect contempt for alleged contemptuous remarks and acts directed against the Court, particularly the then members of its First Division. By motion dated June 5, 2003, petitioners pray that the same petition be treated as a formal complaint for disbarment or disciplinary action against respondent Atty. Manuel R. Singson for alleged gross misconduct, among other offenses.

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The Undisputed Facts

Indirect Contempt

The resulting alleged contemptuous statements and actions date back to proceedings before the Court, specifically in G.R. Nos. 139789 and 139808 that were appeals from the decision of the Court of Appeals (CA) in CA-G.R. SP No. 51689, denying the petition for habeas corpus filed by respondent Erlinda K. Ilusorio to have custody of her husband, Potenciano Ilusorio. The appealed decision found Potenciano to be of sound mind and not unlawfully restrained of his liberty. The CA, however, granted Erlinda Ilusorio visitation rights, an accommodation which the Court nullified in its Decision of May 12, 2000 in G.R. Nos. 139789 and 139808.[1]

This May 12, 2000 ruling spawned several incidents. First, Erlinda Ilusorio moved for its reconsideration, reiterating her basic plea for a writ of habeas corpus and that daughters petitioner Bildner and Sylvia Ilusorio be directed to desist from preventing her “from seeing Potenciano.” Erlinda Ilusorio followed this motion with a Motion to Set Case for Preliminary Conference, requesting that she and Potenciano “be [allowed to be] by themselves together in front of the Honorable Court.” [2] She reiterated this request in an Urgent Manifestation and Motion dated August 25, 2000.

By Resolution of September 20, 2000, the Court set the case for preliminary conference on October 11, 2000 but without requiring the mandatory presence of the parties.[3] In another resolution dated January 31, 2001, the Court denied Erlinda Ilusorio’s manifestation and motion in which she prayed that Potenciano be produced before, and be medically examined by a team of medical experts appointed by, the Court.[4] Erlinda Ilusorio sought reconsideration of the January 31, 2001 resolution.

On March 27, 2001, the Court denied with finality Erlinda Ilusorio’s motion for reconsideration of the January 31, 2001 resolution. [5] Undaunted, she filed an Urgent Manifestation and Motion for Clarification of the Court’s January 31, 2001 resolution. On May 30, 2001, the Court merely noted the urgent manifestation and motion for clarification.[6]

By Resolution of July 19, 2001,[7] the Court denied Erlinda Ilusorio’s motion for reconsideration of the Decision dated May 12, 2000. Thereafter, in another resolution dated July 24, 2002, we resolved to expunge from the records her repetitive motions, with the caveat that no further pleadings shall be entertained.[8]

Barely over a month after, Erlinda Ilusorio, this time represented by Dela Cruz Albano & Associates, sought leave to file an urgent motion for reconsideration of the July 24, 2002 resolution.

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In relation to the above habeas corpus case, Erlinda Ilusorio addressed two letters to then Chief Justice Hilario G. Davide, Jr. dated February 26, 2001 and April 16, 2001, respectively. In the first, she sought assistance vis-à-vis her wish to see Potenciano. [9] In the second, she chafed at what she considered the Court’s bent to adhere to forms and procedure and, at the same time, urged the Court to personally see Potenciano.[10]

Another letter of September 5, 2001 to Chief Justice Davide drew attention to the Court’s decision in G.R. No. 148985 entitled Ramon K. Ilusorio v. Baguio Country Club, in which Erlinda Ilusorio tagged the decision as “appalling,” “unilaterally brazen,” and “unprecedented in the annals of the Supreme Court decision-making process.” In her words, the decision denied and dismissed the petition of her son, Ramon Ilusorio, through a “four-page resolution by unilaterally arguing and citing the arguments made by the respondents” in the case at the courts a quo, “without even giving the same respondents the proper hearing or requiring a comment or a reply.” In the same letter, she made reference to the Court giving “special treatment to particular litigants.”[11]

To petitioners, Erlinda Ilusorio’s filing of redundant motions and pleadings, along with her act of writing the aforementioned letters, constitutes contemptuous disrespect and disobedience or defiance of lawful orders of the Court.

On top of the foregoing circumstances, petitioners would also have respondents cited for contempt in view of the publication of On the Edge of Heaven, a book carrying Erlinda Ilusorio’s name as author and which contained her commentaries on the aforesaid habeas corpus case. In this book, published by PI-EKI Foundation[12] whose board of directors is composed of respondents Ramon, Marietta K. Ilusorio, Shereen K. Ilusorio, and Cecilia A. Bisuña, the following excerpts from the Postscript section captioned Where is Justice? appear:

I pursued my case in the Supreme Court at Division I. There I was heard by Justice Pardo, Davide, Puno, Kapunan, and Santiago.

Just the same – this highest court of the land did not heed to my desperate pleas. Conveniently, they omitted the state of my husband’s true desires; dismissed the importance of my husband’s presence in the court; ignored the ultimate need to check for themselves the true state of Nanoy’s health; and after PI’s recent death in June 28, 2001, easily dismissed my case as “moot and academic.” My husband was referred to as another “subject.” (On the Edge of Heaven, p. 180)[13]

In the same book, Erlinda Ilusorio denounced Justice Bernardo P. Pardo, now retired, the ponente of the habeas corpus case, the other members of the then First Division of the Court, and the Court as a whole:

Where is justice?

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Sadly, the Court of Appeals and, moreso, the Supreme Court broke-up my family. Doesn’t our Constitution, our Civil Code and our Family Code protect the sanctity of marriage and the family?

Was justice for sale? Was justice sold? Nasaan ang katarungan?

xxxx

August 29, 2001

To the Supreme Court of the Philippines, Division One, Justice Bernardo Pardo, Ponente on Case No. x x x

xxxx

You simply quoted an obiter dictum of the Court of Appeals. There was no ruling on his mental condition as this was not at issue at the habeas corpus. How could you have made a ruling based on an obiter? All the doctor’s reports submitted were totally disregarded. In reality it was his frailty, not his mental competence that I raised. During the last five years, he became increasingly frail, almost blind and could barely talk. He was not able to read nor write for almost twenty years. x x x Our separation, three years ago, cruel and inhuman that it was, was made more painful by your ruling that I may not even visit him.

xxxx

On May 30, 2001, you ruled that your decision noted without action the questions of my lawyers, in effect brushing aside the Motion for Clarification without any answers whatsoever. Why?

xxxx

If your decision becomes res judicata haven’t you just provided a most convenient venue to separate spouses from each other–– based on individual rights––particularly when one spouse is ailing and prone to manipulation and needs the other spouse the most? Why did you wait for more than one year and after my husband’s death to deny my motion for reconsideration? Is it because it is easier to do so now that it is academic? Does your conscience bother you at all?

xxxx

I close by asking you: how can the highest court of our land be a party to the break up of my family and, disregarding the Family Code, not let me take care of my husband, permit my husband to die without even heeding my desperate pleas, if not for justice, at least your concern for a human being?

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xxxx

Looking back, I cannot fail to see that––if our courts can render this kind of justice to one like myself because I have lesser means, and lesser connections than my well-married daughters, what kind of justice is given to those less privileged? To the poor, with no means––what have they? I cry for them…[14] (Emphasis ours.)

Disbarment Complaint

The disbarment case against respondent Atty. Singson stemmed from his alleged attempt, as counsel of Ramon in Civil Case No. 4537-R, to exert influence on presiding Regional Trial Court Judge Antonio Reyes to rule in Ramon’s favor. To complainant-petitioners, the bid to influence, which allegedly came in the form of a bribe offer, may be deduced from the following exchanges during the May 31, 2000 hearing on Ramon’s motion for Judge Reyes to inhibit himself from hearing Civil Case No. 4537-R:

COURT: Do you have something to add to your motion?

ATTY. JOSE: The purpose of this representation basically, your honor state the facts are already established as a basis for tendency or a perception correctly or incorrectly that there is already a possibility of partiality.

COURT: Who is your partner?

ATTY. JOSE: The counsel for the plaintiff is Law Office of Singson and Associates and I am the associate of said Law Office, your honor.

COURT: And you are aware that Atty. Manuel R. Singson is your boss? xxxx

ATTY. JOSE: Yes, your honor?

COURT: Has he been telling you the truth in this case?

ATTY. JOSE: Well, your honor my appearance here for the purpose of having this motion duly heard.

COURT: That is why I’m asking you the question, has he been telling you the truth regarding this case?

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ATTY. JOSE: Well, your honor in fact the actual counsel here is Atty. Gepty and I have been…

COURT: Are you aware of the fact that Atty. Singson has been calling my residence in Baguio City for about 20 to 50 times already?

ATTY. JOSE: I have no knowledge already.

COURT: Are you aware that he has offered Atty. Oscar Sevilla his classmate at Ateneo Law School P500,000.00 to give it to me for the purpose of ruling in favor of your client[?]

ATTY. JOSE: I have no knowledge your honor.

COURT: Ask him that tell him to face the mirror and ask him if he is telling the truth alright? I will summon the records of PLDT. The audacity of telling me to inhibit myself here. It has been him who has been trying to influence me.

xxxx

COURT: Tell him to look at his face in the mirror, tell me if he is honest or not.[15]

And to support their disbarment charge against Atty. Singson on the grounds of attempted bribery and serious misconduct, complainantpetitioners submitted an affidavit executed on December 23, 2004 by Judge Reyes in which he pertinently alleged:

2) That one of the cases I tried, heard and decided was Civil Case No. 4537-R entitled “Ramon K. Ilusorio v. Baguio Country Club” for the “Declaration of Nullity of Limitations and/or Injunction x x x”;

3) That the very minute that the case was assigned by raffle to the undersigned, Atty. Manuel Singson counsel of plaintiff Ramon K. Ilusorio in the aforementioned case, started working on his channels to the undersigned to secure a favorable decision for his client;

4) That Atty. Singson’s foremost link to the undersigned was Atty. Oscar Sevilla, my family friend and who incidentally was a classmate of Atty. Singson;

5) That Atty. Sevilla, being a close family friend, immediately intimated to undersigned that Atty. Singson wanted a favorable decision and that there was a not so vague an offer of a bribe from him (Atty. Singson);

6) That I rejected every bit of illegal insinuations and told Atty. Sevilla to assure Atty. Singson that I am duty bound to decide

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every case on the merits no matter who the litigants are;

7) That even before the start of the hearing of the case, Atty. Singson himself relentlessly worked on undersigned by visiting him about three times in his office. And not being satisfied with those visits, he (Atty. Singson) made more than a dozen calls to undersigned’s Manila and Baguio residences, and worked on Atty. Sevilla x x x by calling the latter’s cell phone even when we were playing golf in Manila. These phone calls were even admitted by Atty. Singson in a Manifestation he filed in court citing several ridiculous, unbelievable and untruthful reasons for his phone calls;

8) That when Ramon K. Ilusorio’s plea for injunctive relief was submitted for resolution, Atty. Singson became more unrelenting in throwing his professional ethics out of the window and breached his lawyer’s oath by personally calling many more times, some of which were even made late evenings, just trying to convince undersigned to grant the injunctive relief his client Ramon K. Ilusorio desperately needed in the case;

9) That because of his inability to influence undersigned x x x, Atty. Singson filed a motion to inhibit alleging that facts have been established of undersigned’s partiality for his client’s adversary, the defendant Baguio Country Club;

10) That at the hearing on the motion to inhibit x x x I declared in open court and in public the dishonest and unprofessional conduct of Atty. Singson in trying to influence a judge to favor his client, no matter how unmeritorious his prayer for injunction was. In open court, undersigned scored Atty. Singson’s audacity of asking an inhibition when it has always been him and him alone who wanted and tried to influence the undersigned.

11) That on January 12, 2000, undersigned issued an Order in Civil Case No. 4537-R x x x denying Atty. Singson’s client’s prayer for the issuance of a writ of preliminary injunction x x x; 12) That the undersigned’s ruling against Atty. Singson’s client in the case was elevated to the [CA] in G.R. No. 59353 where x x x Atty. Singson never raised the issue of undersigned’s denial to inhibit; 13) That still unsatisfied with the [CA’s] adverse ruling against his client, Atty. Singson went on to the Supreme Court in G.R. No. 148985 questioning the [CA’s] affirmation of undersigned’s decision. The Supreme Court x x x dismissed the appeal of Ramon K. Ilusorio and sustained undersigned’s decision.[16] (Emphasis ours.)

Complainant-petitioners also submitted Atty. Oscar Sevilla’s affidavit to support the attempted bribery charge against Atty. Singson. In its pertinent part, Atty. Sevilla’s affidavit reads:

That sometime in late October of 1999 x x x, I received a call from Atty. Singson x x x and in the course of our conversation, I learned that Ramon K. Ilusorio is his client who has a civil case raffled to Judge Reyes;

That during said conversation, I mentioned to Atty. Singson that Judge Reyes is a family friend and x x x is a man of integrity;

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That in the months that followed, Atty. Singson made a call or two to my cellphone requesting if I could mention to Judge Reyes that he (Atty. Singson) is my classmate at the Ateneo and also a good friend;

That I remember having mentioned this to Judge Reyes who told me that he always decides on the merits of all cases x x x and to tell Atty. Singson that he need not worry if he had a meritorious case.[17]

In view of the foregoing considerations, petitioners prayed that respondents be adjudged guilty of criminal contempt of court and punished in accordance with Sec. 7, Rule 71 of the Rules of Court. The censure of respondents was also sought for using extrajudicial ways of influencing pending cases in court. Lastly, petitioners asked for the disbarment or discipline of Atty. Singson for attempted bribery and gross misconduct.

By separate resolutions, the Court directed respondents to submit their comment on the contempt aspect of the petition and Atty. Singson to submit his comment on petitioners’ motion to consider the same petition as a formal complaint for disbarment or other disciplinary action.

Respondents’ Comments

Respondents admitted the fact of filing by Erlinda Ilusorio of the various manifestations and motions mentioned in the basic petition for contempt, her authorship of On the Edge of Heaven, and her having written personal letters to then Chief Justice Davide. They contended, however, that the motions and manifestations, couched in a very respectful language,[18] can hardly be considered contemptuous, interposed as they were in the exercise of the litigant’s right to avail herself of all legal remedies under the Rules of Court. Erlinda Ilusorio’s acts, so respondents claimed, were “all made in good faith,” motivated by the desire to secure “custody x x x of her husband, [and] to provide [him] adequate medical care x x x and to prevent him from being an unwitting pawn to illegally dissipate the properties of the conjugal properties of the spouses.”

As to Erlinda Ilusorio’s letters to Chief Justice Davide and the members of the Court, respondents stated that these letters, far from being contemptuous, “tend to improve the administration of justice and encourage the courts to decide cases purely on the merits.”

And in traversal of the allegation that On the Edge of Heaven contains actionable matters, respondents claimed, inter alia, that the comments Erlinda Ilusorio made in the book were no more than reasonable reactions from a layperson aggrieved by what she considers an unjust Court decision and who “felt she had to write a book that would rectify the erroneous findings of the Court and put forth the truth about the so-called Ilusorio family feud.”[19] What is more, respondents said, sisters Marietta and Shereen as well as Cecilia had no hand in the contents of the book and its publication, as Erlinda Ilusorio, as Chairperson and President of PI-EKI Foundation, is authorized to perform acts on behalf of the foundation.

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With regard to the bribery allegations against Atty. Singson, respondents invited attention to the Manifestation in Civil Case No. 4537-R to dispute the accusation of Judge Reyes. The refutations, as reproduced in the respondents’ Memorandum, run as follows:

(a) While it is true that Singson called Judge Reyes numerous times the nature and purpose of said calls were proper and above board. The reason why the phone calls were numerous is because oftentimes, Judge Reyes was not in the places where the calls were made.

(b) The phone calls were made either to request for a postponement of a hearing of the case or to inquire about the status of the incident on the issuance of the temporary restraining order applied for in the case.

(c) It was Judge Reyes himself who furnished the telephone numbers in his office and his residence in Baguio City. Apparently, Judge Reyes did not find the telephone calls improper as he answered most of them, and that he never reported or complained about the said calls to the appropriate judicial authorities or to the Integrated Bar of the Philippines if he had found the actuations of Singson in violation of the provisions of the Code of Professional Responsibility.

(d) As to the alleged bribery attempt, there is absolutely no truth to the same. If it is true that there was such an offer, there is no reason why Singson could not have made the offer himself, since he personally knows Judge Reyes. The allegations of Judge Reyes [are] purely hearsay and imaginary. If the bribery attempt had indeed happened, why did Judge Reyes not report the matter to the Supreme Court or to the IBP or even better, cite Atty. Sevilla and/or Singson in contempt of court, or file a criminal case of attempted bribery against them, or discipline them by himself in accordance with the provisions of Rule 138 and 139 of the Revised Rules of Court? The fact that Judge Reyes did not do any of the foregoing clearly shows the falsity of his claims.[20]

Respondents added that the bribery charge was based on a hearsay account, since the alleged offer to Judge Reyes emanated from Atty. Sevilla.

The Issues

WHETHER OR NOT RESPONDENTS ARE GUILTY OF INDIRECT CONTEMPT OF COURT

WHETHER OR NOT ATTY. SINGSON SHOULD BE ADMINISTRATIVELY DISCIPLINED OR DISBARRED FROM THE PRACTICE OF LAW FOR ALLEGED GROSS MISCONDUCT IN ATTEMPTING TO BRIBE JUDGE ANTONIO REYES

The Court’s Ruling

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Indirect Contempt

The Court’s dignity and authority would always be prey to attack were it to treat with abject indifference and look with complacent eyes on serious breaches of ethics and denigrating utterances directed against it. To preserve their authority and efficiency, safeguard the public confidence in them, and keep inviolate their dignity, courts of justice should not yield to the assaults of disrespect[21] and must, when necessary, wield their inherent power to punish for contempt, a power necessary for their own protection against improper interference with the due administration of justice.[22]

Contempt, whether direct or indirect, may be civil or criminal, depending on the nature and effect of the contemptuous act. [23] Civil contempt is the failure to do something ordered by the court for the benefit of the opposing party. Criminal contempt, on the other hand, is conduct directed against the dignity and authority of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.[24] On the basis of the foregoing principles, it can be safely concluded that under Sec. 3(d) of Rule 71 on contempt, “any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice” constitutes criminal contempt. This is what petitioners obviously would have respondents cited for.

The contempt power, however plenary it may seem, must be exercised judiciously and sparingly with utmost self-restraint with the end in view of utilizing it for correction and preservation of the dignity of the court, not for retaliation or vindication.[25] To be sure, courts and judges, as institutions, are neither sacrosanct nor immune to public criticisms of their conduct. [26] And well-recognized is the right of citizens to criticize in a fair and respectful manner and through legitimate channels the acts of courts or judges, [27] who in turn ought to be patient and tolerate as much as possible everything which appears as hasty and unguarded expression of passion or momentary outbreak of disappointment at the outcome of a case. Even snide remarks, as People v. Godoy teaches, do not necessarily partake the nature of contumacious utterance actionable under Rule 71 of the Rules of Court.[28]

But as we have emphasized time and time again, “[i]t is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on one hand, and abuse and slander of courts and the judges thereof, on the other.”[29] Obstructing, by means of opprobrious words, spoken or written, the administration of justice by the courts will subject the abuser to punishment for contempt of court. And regardless of whether or not the case of reference has been terminated is of little moment. One may be cited for contempt of court even after the case has ended where such punitive action is necessary to protect the court and to vindicate it from acts or conduct calculated to degrade, ridicule, or bring it into disfavor and thereby erode public confidence in that court.[30]

In the case at bar, the various motions and manifestations filed by Erlinda Ilusorio neither contained offensively disrespectful language nor tended to besmirch the dignity of the Court. In fact, the Court, mindful of the need to clear its docket of what really is an unfortunate family squabble, considered and ruled on each of her motions and manifestations. For the nonce, the Court accords Erlinda Ilusorio the benefit of the doubt and is inclined to think that her numerous pleadings that reiterate the same issues were bona fide attempts to

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resuscitate and salvage what she might have sanguinely believed to be a meritorious case involving her marital rights. This is not to say, however, that the Court views with unqualified approval the obnoxious practice of filing pleadings after pleadings that only substantially reiterate the same issues that had already been passed upon and found to be unmeritorious. The Court, as a matter of sound practice, will not allow its precious time and resources to be eaten unnecessarily.[31] Accordingly, Erlinda Ilusorio and/or counsel is put on notice against trying the Court’s patience and abusing its forbearance by continuing with their taxing ways.

Erlinda Ilusorio’s personal letters to then Chief Justice Davide were not contumacious in character. Neither do we find them actionable, as a sleigh but sub-rosa attempt to influence the letter-addressee, under the contempt provisions of the Rules of Court. As we articulated in In Re: Wenceslao Laureta, letters addressed to individual members of the Court, in connection with the performance of their judicial functions, become part of the judicial record and are a matter of concern for the entire Court.[32] Although decisions of the Court are not based on personal letters and pleas to individual justices, we nonetheless discourage litigants from pursuing such unnecessary extra-legal methods to secure relief. There are adequate remedies for the purpose under the Rules of Court.

Unlike the contents of the pleadings and letters in question, EKI’s statements in On the Edge of Heaven, however, pose a different threat to the Court’s repute. For reference, the following are the defining portions of what she wrote:

(1) “The Supreme Court broke up my family.”

(2) “Was justice for sale? Was justice sold? Nasaan ang katarungan?”

(3) “If your decision becomes res judicata haven’t you just provided a most convenient venue to separate spouses from each other x x x?”

(4) “Why did you wait for more than one year and after my husband’s death to deny my motion for reconsideration? Is it because it is easier to do so now that it is academic? Does your conscience bother you at all?”

(5) “How can the highest court of our land be a party to the break up of my family and, disregarding the Family Code x x x?”

(6) “[I]f our courts can render this kind of justice to one like myself because I have lesser means, and lesser connections than my wellmarried daughters, what kind of justice is given to those less privileged?”

Taken together, the foregoing statements and their reasonably deducible implications went beyond the permissible bounds of fair criticism. Erlinda Ilusorio minced no words in directly attacking the Court for its alleged complicity in the break up of the Ilusorio family, sharply insinuating that the Court intentionally delayed the resolution of her motion for reconsideration, disregarded the Family Code, and unduly favored wealthy litigants. But the worst cut is her suggestion about the Court selling its decisions. She posed the query, “Nasaan

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ang katarungan? (Where is justice?),” implying that this Court failed to dispense justice in her case. While most of her statements were in the form of questions instead of categorical assertions, the effect is still the same: they constitute a stinging affront to the honor and dignity of the Court and tend to undermine the confidence of the public in the integrity of the highest tribunal of the land.

Erlinda Ilusorio explains that she is a layperson uninitiated in legal matters, an aggrieved widow who just wants to be relieved of pain caused by the injustice of the decision of this Court. She “felt she had to write a book that would rectify the erroneous findings of the Court x x x.”[33] Obviously she had achieved her goal of self-expression but to the detriment of the orderly administration of justice. To be sure, she could have had adequately expressed her disagreement with the Court’s disposition in the habeas corpus case without taking the low road, without being insulting, without casting a cloud of suspicion on the reputation of the Court. In some detail, the Court, in People v. Godoy, set forth what is permissible and when one is considered to have overstepped bounds:

Generally, criticism of a court’s rulings or decisions is not improper, and may not be restricted after a case has been finally disposed of and has ceased to be pending. So long as critics confine their criticisms to facts and base them on the decisions of the court, they commit no contempt no matter how severe the criticism may be; but when they pass beyond that line and charge that judicial conduct was influenced by improper, corrupt, or selfish motives, or that such conduct was affected by political prejudice or interest, the tendency is to create distrust and destroy the confidence of the people in their courts.

But criticism should be distinguished from insult. A criticism after a case has been disposed of can no longer influence the court, and on that ground it does not constitute contempt. On the other hand, an insult hurled to the court, even after a case is decided, can under no circumstance be justified. Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; but to hurl the false charge that the Supreme Court has been committing deliberately so many blunders and injustices would tend necessarily to undermine the confidence of the people in the honesty and integrity of its members, and consequently to lower or degrade the administration of justice, and it constitutes contempt.[34]

A becoming respect for the courts should always be the norm. Litigants, no matter how aggrieved or dissatisfied they may be of court’s decision, do not have the unbridled freedom in expressing their frustration or grievance in any manner they want. Crossing the permissible line of fair comment and legitimate criticism of the bench and its actuations shall constitute contempt which may be visited with sanctions from the Court as a measure of protecting and preserving its dignity and honor.

We explained in Wicker v. Arcangel:

x x x [T]he power to punish for contempt is to be exercised on the preservative and not on the vindictive principle. Only occasionally should it be invoked to preserve that respect without which the administration of justice will fail. The contempt power ought not to be utilized for the purpose of merely satisfying an inclination to strike back at a party for showing less than full respect for the dignity of the court.[35]

As to the other members of the Board of Directors of the PI-EKI Foundation, the publisher of On the Edge of Heaven, we find no merit in

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the charge of indirect contempt against them. True, except for Atty. Singson, respondents Ramon, Marietta and Shereen Ilusorio, and Cecilia appear to be officers of PI-EKI Foundation. There is no compelling reason, however, to pierce, as petitioners urge, the veil of corporate fiction in order to hold these officers liable, especially in light of Erlinda Ilusorio’s assertion of being authorized, as Chairperson and President of the said foundation, to perform acts on behalf of the foundation without prior board approval. Indirect contempt is a deliberate act to bring the court or judge into disrepute. In this case, proof of the participation of the board of directors and officers to willfully malign the Court is utterly wanting. In this regard, there is authority indicating that no one can be amenable to criminal contempt unless the evidence makes it abundantly clear that one intended to commit it.[36] It cannot plausibly be assumed that the said officers shared Erlinda Ilusorio’s ill regard towards the judiciary from the mere fact that the PI-EKI Foundation published the book.

Disbarment

As to the complaint for disbarment, there is a well-grounded reason to believe that Atty. Singson indeed attempted to influence Judge Reyes decide a case in favor of Atty. Singson’s client. The interplay of the following documentary evidence, earlier cited, provides the reason: (1) the transcript of the stenographic notes of the May 31, 2000 hearing in the sala of Judge Reyes in Civil Case 4537-R when the judge made it of record about the attempt to bribe; (2) the affidavit of Judge Reyes dated December 23, 2004 narrating in some detail how and thru whom the attempt to bribe adverted to was made; and (3) the affidavit of Atty. Sevilla who admitted having been approached by Atty. Singson to intercede for his case pending with Judge Reyes. Significantly, Atty. Singson admitted having made phone calls to Judge Reyes, either in his residence or office in Baguio City during the period material. He offers the lame excuse, however, that he was merely following up the status of a temporary restraining order applied for and sometimes asking for the resetting of hearings.

The Court finds the explanation proffered as puerile as it is preposterous. Matters touching on case status could and should be done through the court staff, and resetting is usually accomplished thru proper written motion or in open court. And going by Judge Reyes’ affidavit, the incriminating calls were sometimes made late in the evening and sometimes in the most unusual hours, such as while Judge Reyes was playing golf with Atty. Sevilla. Atty. Sevilla lent corroborative support to Judge Reyes’ statements, particularly about the fact that Atty. Singson wanted Judge Reyes apprised that they, Singson and Sevilla, were law school classmates.

The highly immoral implication of a lawyer approaching a judge––or a judge evincing a willingness––to discuss, in private, a matter related to a case pending in that judge’s sala cannot be over-emphasized. The fact that Atty. Singson did talk on different occasions to Judge Reyes, initially through a mutual friend, Atty. Sevilla, leads us to conclude that Atty. Singson was indeed trying to influence the judge to rule in his client’s favor. This conduct is not acceptable in the legal profession. Canon 13 of the Code of Professional Responsibility enjoins it:

Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.

At this juncture, the Court takes particular stock of the ensuing statement Judge Reyes made in his affidavit: “x x x Atty. Sevilla, being a

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close family friend, immediately intimated to [me] that Atty. Singson wanted a favorable decision and that there was a not so vague an offer of a bribe from him (Atty. Singson).” Judge Reyes reiterated the bribe attempt during the hearing on May 31, 2000, and made reference to the figure PhP 500,000, the amount Atty. Singson offered through Atty. Sevilla. As may be expected, Atty. Singson dismissed Judge Reyes’ account as hearsay and questioned the non-filing of any complaint for attempted bribery or disciplinary action by Judge Reyes at or near the time it was said to have been committed.

First, we must stress the difficulty of proving bribery. The transaction is always done in secret and often only between the two parties concerned. Indeed, there is no concrete evidence in the records regarding the commission by Atty. Singson of attempted bribery. Even Atty. Sevilla did not mention any related matter in his affidavit. Nevertheless, Judge Reyes’ disclosures in his affidavit and in open court deserve some weight. The possibility of an attempted bribery is not far from reality considering Atty. Singson’s persistent phone calls, one of which he made while Judge Reyes was with Atty. Sevilla. Judge Reyes’ declaration may have been an “emotional outburst” as described by Atty. Singson, but the spontaneity of an outburst only gives it more weight.

While the alleged attempted bribery may perhaps not be supported by evidence other than Judge Reyes’ statements, there is nevertheless enough proof to hold Atty. Singson liable for unethical behavior of attempting to influence a judge, itself a transgression of considerable gravity. However, heeding the injunction against decreeing disbarment where a lesser sanction would suffice to accomplish the desired end, a suspension for one year from the practice of law appears appropriate.

WHEREFORE, Erlinda K. Ilusorio is adjudged GUILTY of INDIRECT CONTEMPT and is ordered to pay a fine of ten thousand pesos (PhP 10,000). Atty. Manuel R. Singson is SUSPENDED for ONE (1) YEAR from the practice of law, effective upon his receipt of this Decision. Costs against respondents.

Let all the courts, through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines and the Office of the Bar Confidant be notified of this Decision and be it duly recorded in the personal file of respondent Manuel R. Singson.

SO ORDERED.

[A.M. No. 01-12-01-SC. January 16, 2003] IN THE MATTER OF THE ALLEGED IMPROPER CONDUCT OF SANDIGANBAYAN ASSOCIATE JUSTICE ANACLETO D. BADOY, JR., TAKING AN AMBULANCE BUT PROCEEDING TO THE GMA TV STATION FOR AN INTERVIEW INSTEAD OF PROCEEDING FORTHWITH TO THE HOSPITAL. [A.M. NO. SB-02-10-J. January 16, 2003] JOSEPH E. ESTRADA, JOSE “JINGGOY” ESTRADA, SERAFIN R. CUEVAS, RENE A.V. SAGUISAG, JOSE B. FLAMINIANO, PACIFICO A. AGABIN, FELIX D. CARAO, JR., CLEOFE V. VERZOLA, DELIA H. HERMOSO AND RAYMUND P. FORTUN, complainants, vs. ASSOCIATE JUSTICES ANACLETO D. BADOY, JR., AND TERESITA LEONARDO-DE CASTRO, respondents. DECISION

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SANDOVAL-GUTIERREZ, J: Judges, like ordinary mortals, are subject to human limitations. At times, the great tides of perturbing and overwhelming emotions engulf them. Notwithstanding so, they are expected to be “cerebral men”[1] who can control their confounding emotions and idiosyncratic inclinations. Otherwise, they will be held answerable for their conduct. Haled in these two consolidated administrative cases, A.M. No. 01-12-01-SC and A.M No. SB-02-10-J, are Sandiganbayan Justices Anacleto D. Badoy, Jr. (Ret.) and Teresita Leonardo-De Castro. The facts of A.M. No. 01-12-01-SC may be synthesized as follows: On November 29, 2001, Justice Badoy, aboard an ambulance, “whisked himself” to the GMA Broadcast Station in Quezon City for a live interview in the news program Saksi. There, he announced the loss of a Resolution he penned in connection with the plunder case against former President Joseph Ejercito Estrada and others. The media sarcastically referred to the event as a “staged comedy”[2] or a “television tryst.”[3] Leading newspapers contained facetious headlines, such as “Ambulance rushes Badoy—to TV Station,”[4] “What’s with Justice Badoy?,”[5] and “Unorthodox Behavior – Analyze Badoy, Erap Lawyers ask SC.”[6] Acting on the media reports, this Court directed Justice Badoy to show cause why he should not be administratively charged with conduct unbecoming a Justice of the Sandiganbayan.[7] In his compliance,[8] Justice Badoy alleged that three days prior to the incident, he could not find his Resolution ordering that former President Estrada be detained at Fort Sto. Domingo. So he requested the National Bureau of Investigation to conduct an investigation, but to no avail. Thus, on November 29, 2001, agitated that someone might have stolen the Resolution and claimed that he (Justice Badoy) sold it for a fee, he decided to go to the GMA-7 Broadcast Station and report its loss, in order that the public may know he is honest. In going there, he chose to ride in an ambulance because he felt very sick and cold, intending to proceed to a hospital after the interview. A.M No. SB-02-10-J is set on a different factual milieu, to wit: Subsequent to the descent of former President Estrada from power, the Office of the Ombudsman filed several criminal cases against him, his family, and friends. One of them is Criminal Case No. 26558 wherein he, his son Jose “Jinggoy” and Atty. Edward Serapio stand accused for violation of Republic Act No. 7080, the Anti-Plunder Law. The case was raffled to the Third Division of the Sandiganbayan composed of Justice Badoy, as Chairman, and Justices Teresita Leonardo-De Castro and Ricardo M. Ilarde, now retired, as members. On September 13, 2001, after the termination of a series of pre-trial conference between the parties, the Sandiganbayan furnished them and their counsel with a copy of the Pre-trial Order for their signatures. The defense panel composed of Atty. Rene A.V. Saguisag (lead counsel), Justice Serafin R. Cuevas, Attys. Jose B. Flaminiano, Felix D. Carao, Jr., Cleofe V. Verzola, and Delia H. Hermoso, refused to sign it on the grounds that: 1) there is no provision in the Revised Rules of Criminal Procedure requiring them to sign a Pre-trial Order;[9] 2) they were not given ample time to read it;[10] and 3) it incorporates a statement that they admitted the existence of certain exhibits although there was no such admission.[11] In the course of an argument between Sandiganbayan Justice De Castro and Justice Cuevas, Atty. Saguisag intervened. In the process, he argued simultaneously with Justice Cuevas.[12] Despite Justice De Castro’s request to wait for his turn, Atty. Saguisag persisted, prompting her to bang the gavel twice and order him to stop arguing.[13] This led Justice Badoy to order four Sheriffs to take Atty. Saguisag out of the courtroom.[14] Thereafter, Justice De Castro ruled in open court that the assailed portion of the Pre-trial Order could be deleted.[15] The prosecution manifested its acquiescence. However, Atty. Flaminiano objected, insisting that the defense needs more time to study the Pre-trial Order.[16] Notwithstanding the objection, Justice Badoy terminated the pre-trial and set the trial proper on October 1, 3 and 4, 2001 and thereafter, every Monday, Wednesday and Thursday of the week, all at 1:00 o’clock in the afternoon.[17] On October 1, 2001, the defense lawyers did not appear. Determined to proceed with the trial, Justice Badoy appointed Atty. Sabino Acut, Jr. and Atty. Martin Pison, counsel for accused Atty. Serapio, to represent the Estradas. Former President Estrada objected, insisting that he has the right to choose his counsel. Atty. Acut and Atty. Pison declined because of a possible conflict between their client’s interest and that of the Estradas. As a last recourse, Justice Badoy appointed lawyers from the Public Attorneys Office (PAO) as counsel de officio for

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the Estradas.[18] Feeling aggrieved, former President Estrada, “Jinggoy” Estrada and all their counsel of record in Criminal Case No. 26558 filed the instant administrative complaint charging Justices Badoy and De Castro with: 1) dishonesty and misrepresentation for incorporating in the Pre-trial Order a statement that “the defense admitted Plaintiff’s Exhibit A up to Exhibit C-45 and its submarkings as to its existence” notwithstanding the fact that they did not admit the same;[19] 2) oppression and gross misconduct for “throwing” Atty. Saguisag out of the courtroom;[20] 3) violation of Supreme Court rules, directives and circulars for setting the hearing of the plunder case three times a week, at one o’clock in the afternoon, without prior consultation with the defense counsel;[21] 4) denial of the accused’s right to counsel for appointing PAO lawyers as counsel de officio of the Estradas during the hearing of October 1, 2001;[22] and 5) penchant for late rulings[23] as shown in the following instances: 1. The release of the Resolution denying complainant Jinggoy Estrada’s Motion to Quash (filed as early as April 2001) after office hours and on the eve of the July 10, 2001 arraignment. 2. The release of the Resolution denying complainant Estradas’ Petition to Recuse on the scheduled date of the pre-trial or on September 3, 2001. 3. Respondents’ failure to resolve complainants’ Motion to Cancel the October 1, 2001 hearing filed as early as September 19, 2001. 4. The release of the Resolution denying complainant Jinggoy Estrada’s Motion to be Allowed to Administer the Oath of Office to Senator Luisa “Loi” Estrada, on June 29, 2001, past beyond the scheduled hour of oath-taking, thus, prompting Justice Ricardo M. Ilarde (Ret.) to write the following annotations on the Resolution: “What is there to deny? This resolution was brought to us only at 4:45 p.m. The matter has been rendered moot and academic.” Respondents filed their separate comments. Justice De Castro explains as follows: First, in issuing the Pre-trial Order, the court merely relied on the parties’ Joint Stipulations of Facts and on the notes of the five (5) stenographers recording the pre-trial conferences held before the Division Clerk of Court. Nonetheless, when complainants called the court’s attention regarding the assailed statement in the Pre-trial Order, she ordered its deletion.[24] Second, it was Atty. Saguisag’s contumacious conduct of “loudly speaking simultaneously with Atty. Cuevas” that prompted respondent Justices to order him to leave the courtroom.[25] Third, they consulted the complainants before they set the hearing of the plunder case three times a week, resulting in the revision of the trial settings embodied in the court’s Order dated September 14, 2001.[26] Fourth, the appointment of three (3) PAO lawyers was intended to provide the accused with adequate legal assistance during the hearing. And fifth, they resolved the accused’s three motions to quash only on July 9, 2001 because the parties’ last pleading was filed only on July 5, 2001.[27] For his part, Justice Badoy maintains that the Pre-trial Order has not prejudiced the accused since they were not obliged to sign it and that they are free to object to the presentation of any evidence during trial.[28] He ordered Atty. Saguisag to leave the courtroom because he ignored Justice De Castro’s repeated order to stop arguing.[29] On the setting of the hearing of the plunder case three times a week, he stressed that the court was merely complying with the Speedy Trial Act.[30] And lastly, on the alleged late rulings, he explains: “Regarding the release of the Resolution of the undersigned on the Motion for Recusation of the Estradas on the recusation issue. At the time, the undersigned had no intention of releasing it yet in order to fine-tune the same further. However, he was informed just before going out for the hearing that the Estradas were going to use the pendency of their Motion for Recusation as a reason, again, to ask for the postponement of the setting for that day, one of their several motions for postponement. As regards the delay in the Resolution of the undersigned on the permission to have Mayor Jose “Jinggoy” Estrada go to San Juan City to administer the oath to both his mother as Senator and his brother as the new Mayor of San Juan City, the reason was because the undersigned was looking hard for a justification to grant the request since the undersigned sympathized with the same. The undersigned went to the extent of requesting a copy of the Rules and Regulations from both the Bureau of Jail

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Management and Penology (BJMP) as well as the Bureau of Corrections (BOC). Hence, the delay in the Resolution of the ponencia. But, even late, there was still a chance for then Mayor Jose “Jinggoy” Estrada to administer the oaths of office.” x x

x

x

x

x

The undersigned stated that, with every Justice having 100% load and 100% staff, with the plunder case (equivalent easily to 500%), the undersigned now had a load of 600% but with his support staff remaining in the same level. That is why he asked for additional staff.”[31] (Emphasis supplied) At the outset, it must be stressed that the retirement[32] of Justice Badoy from the Judiciary does not divest this Court of its jurisdiction over these cases. In Perez vs. Abiera,[33] this Court ruled: “X x x. In other words, 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 public official had ceased to be in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. For what remedy would the people have against a judge or any other public official who resorts to wrongful and illegal conduct during his last days in office? What would prevent some corrupt and unscrupulous magistrate from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.” We shall resolve A.M. No. 01-12-01-SC first. An introspective appraisal of the “ambulance incident” yields reasons for this Court to adjudge Justice Badoy guilty of conduct unbecoming a Justice. Canon 2 of the Code of Judicial Conduct provides that “a judge should avoid impropriety and the appearance of impropriety in all activities.” He should so behave at all times as to promote public confidence in the integrity of the Judiciary.[34] Concomitant with this is the express mandate of the Canons of Judicial Ethics that “justice should not be bounded by the individual idiosyncrasies of those who administer it.” A judge should adopt the usual and expected method of doing justice, and not seek to be spectacular or sensational in the conduct of his court. Justice Badoy tramples upon the foregoing judicial norms. We see no reason why he should rush to the GMA-7 Broadcast Station just to inform the public about the loss of a Resolution. This is an internal office incident which should not be reported to the whole nation. His claim that the Resolution might have been stolen and sold by someone (using his name) for a fee is a wild conjecture. Not only did his conduct give an image that he could not manage his work effectively, but it also indicated that he had corrupt personnel. Moreover, it dragged innocent parties as possible culprits. Justice Badoy’s aberrant behavior deserves administrative sanction. As the Chairman of the Division hearing the plunder case against the former President of the Philippines, he should have been more circumspect in his actuation. A short pause for reflection might have yielded a better judgment. The loss of the Resolution, being an internal matter, could have been addressed inside his own chamber. That he brought it to the arena of public opinion is pure vanity. It cannot be countenanced. If lawyers are prohibited from making public statements in the media regarding a pending case to arouse public opinion for or against a party,[35] with more reason should judges be prohibited from seeking publicity. Judges are not actors or politicians who thrive by publicity. Publicity undermines the dignity and impartiality of a judge.[36] Thus, at no time should he be moved by a desire to cater to public opinion to the detriment of the administration of justice.[37] The fact that Justice Badoy, just three (3) weeks prior to the “ambulance incident,” was strictly ordered by Chief Justice Hilario G. Davide, Jr., “to cease and desist from holding press conferences, issuing press statements, or giving interviews to the media on any matter or incident related to the issues subject of the controversy”[38] all the more punctuates his indiscretion. As we mentioned earlier, judges are subject to human limitations. Imbedded in their consciousness is the complex of emotions, habits and convictions. Aware of this actuality, it behooves them to regulate these deflecting forces and not to let them loose, either to their own

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detriment or to that of the courts they serve. This is the high price they have to pay as occupants of their exalted positions. We now resolve A.M No. SB-02-10-J. At this juncture, let it be stressed that the administration of justice is primarily a joint responsibility of the judge and the lawyer. The judge expects a lawyer to properly perform his role in this task in the same manner that the lawyer expects a judge to do his part.[39] Their relation should be based on mutual respect and on a deep appreciation by one of the duties of the other. Only in this manner can each minimize occasions for delinquency and help attain effectively the ends of justice.[40] The conflict between the herein parties could have been avoided if only they heeded the foregoing clarion call. I Respondents are not guilty of the charges of dishonesty and misrepresentation. Dishonesty connotes a disposition to deceive,[41] while misrepresentation means a statement made to deceive or mislead.[42] Obviously, both imply an “intention” to deceive. Complainants failed to prove that respondents acted with deceit or with malice or bad faith in stating in the Pre-trial Order that the defense admitted the existence of certain exhibits. Other than their bare allegation, no sufficient evidence was adduced to support the charge.[43] That respondents did not intend to deceive complainants is clear from the fact that the Pre-trial Order states verbatim the Joint Stipulations of Facts submitted by both parties. Furthermore, when complainants expressed their objection to the inclusion of the assailed statement, respondents immediately ordered its deletion. The transcript of stenographic notes is revealing, thus: “AJ BADOY: The Court would appreciate if you can point out some grammatical errors. Atty. Flaminiano: Yes, Your Honor. I am going to do that. On page 20, the last paragraph states: “The defense admitted exhibit “A” up to exhibit “C-45” and its sub markings as to its existence but not as to the truth of the content.” In the very first place there never was any admission made by the defense as even to the existence of the document. And the sentence also we believe not grammatically appropriate. It should be their sub markings or as to their existence because this involved several documents, Your Honors. AJ DE CASTRO: That portion may be deleted. Atty. Flaminiano: Well, I’m not sure about it. Your Honor. I only pointed that there is a need for us to go over page by page because we got a copy only after there was an incident – x

x

x

x

x

x

OMB Desierto: We can have this deleted. Atty. Flaminiano: But there are several others. AJ DE CASTRO: What are those? OMB Desierto: After one (1) hour they should be able to determine that. After all Your Honor, I would like to emphasize the fact that the Joint Stipulation of Facts were signed—stipulations which we had a week ago were signed by the parties, by the counsels for the accused. And

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now, the things that are reflected here, are found in this Pre-trial Order. If there is any delineation from what stipulated then and were signed by the counsels for the defense and also the prosecution, then we can correct that, but it cannot be possible major changes will have to be made in the Pre-trial Order since this is only copied anyway from the Joint Stipulation of Facts. If there are such thing as that particular sentence which should be objectionable to the defense, the prosecution is ready to agree to its deletion. x

x

x

x

x

x

AJ DE CASTRO: You know what we did here is simply copy verbatim every document that we found on record pertaining to the Pre-trial conference. We did not add. We did not subtract. So, anything that you will state now will simply be corrections of some clerical errors, that is all. Giving you enough time to go over.”[44] (Emphasis supplied) On complainants’ refusal to sign the Pre-trial Order, Section 2, Rule 118 of the Revised Rules of Criminal Procedure provides that “All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused.” Considering that the Pre-trial Order contains the recital of the actions taken by the parties, agreements and admissions, the facts stipulated, and the evidence marked,[45] the parties must sign it. A party who participates in the pre-trial conference and who signs the Joint Stipulation of Facts is expected to sign the Pre-trial Order. If a party believes that the Pre-trial Order is not an honest representation of what transpired in the pre-trial conference, then he must specify his objections thereto and the court may modify it to prevent injustice. This was what respondents exactly did when complainants pointed out the assailed statement in the Pre-trial Order. II We now come to complainants’ allegation of oppression and gross misconduct. Oppression is a “misdemeanor committed by a public officer, who under color of his office, wrongfully inflict upon any person any bodily harm, imprisonment or other injury.” It is an “act of cruelty, severity, or excessive use of authority.”[46] Upon the other hand, the word “misconduct” implies wrongful intention. For gross misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules.[47] We find no evidence to prove complainants’ charges of oppression and misconduct. Records show that Atty. Saguisag was asking the court for a copy of the Pre-trial Order so that he could follow up the court’s discussion. He did not utter any disrespectful remark against respondents nor attack their integrity or authority. However, he kept on speaking simultaneously with Justice Cuevas and refused to yield to the court’s repeated order to stop. Such actuation must have constrained respondents to lose their cool and order the sheriffs to take him out of the courtroom. At that point, what respondents should have done was to cite him in direct contempt of court pursuant to Rule 71 of the 1997 Rules of Civil Procedure, as amended.[48] In Romero vs. Valle, Jr.,[49] this Court ruled: “Precisely, judicial officers are given contempt powers in order that without being arbitrary, unreasonable or unjust, they may endeavor to hold counsel to a proper appreciation of their duties to the court. Respondent judge could very well have cited complainant in contempt of court instead of indulging in tantrums by banging his gavel in a very forceful manner and unceremoniously walking out of the courtroom.” It has been consistently stressed that the role of a judge in relation to those who appear before his court must be one of temperance, patience and courtesy. In this regard, Rule 3.04 of the Code of Judicial Conduct states: “A judge should be patient, attentive and courteous to all lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants.” In Echano vs. Sunga,[50] respondent judge, during the course of an argument in his sala, lost his cool and called the sheriff to take away the arguing attorney. And when the attorney kept on talking, respondent judge countered, “Submitted, Buntalin kita dian.” This Court admonished him to be more prudent and restrained in his behavior. For his part, pursuant to Canon 11 of the Code of Professional Responsibility, Atty. Saguisag should have observed the respect due to respondent magistrates for the maintenance of the court’s supreme importance. Upon being ordered to stop arguing simultaneously with Justice Cuevas, he should have complied and behaved accordingly. Had he done so, he would not have been ordered to leave the courtroom. Indeed, he failed to comport himself in a manner required of an officer of the court.

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III The setting of the hearing of the plunder case three times a week is in order, not only because the case is of national concern, but more importantly, because the accused are presently detained.[51] Contrary to complainants’ assertions, the continuous trial is in accordance with the mandate of the law. This Court, in Administrative Circular No. 3-90 dated January 31, 1990, ordered all trial courts to adopt the mandatory continuous trial system in accordance with Administrative Circular No. 4 dated September 22, 1988 and Circular No. 1-89 dated January 19, 1989. It was adopted precisely to minimize delay in the processing of cases. This delay was attributed to the common practice of piecemeal trial wherein cases are set for trial one day at a time and thereafter the hearing is postponed to another date or dates until all the parties have finished their presentation of evidence.[52] Section 2 of Rule 119 of the Revised Rules on Criminal Procedure provides: “SEC. 2 Continuous trial until terminated; postponements. – Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. The court shall, after consultations with the prosecutor and defense counsel, set the case for continuous trial on weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.” (Emphasis supplied) Corolarilly, the “consultations” referred to in the foregoing provisions does not necessarily mean that the court has to secure first from the prosecution and defense their approval before it can set the date of hearing. To rule otherwise is to subject our trial system to the control of the parties and their counsel. Complainants also assail respondents’ act of setting the hearing at one o’clock in the afternoon. Again, there is nothing irregular in it. The schedule of hearing is regarded as a matter necessarily at the discretion of the trial judge. As a matter of fact, a court may even hold night sessions, and a court of review will not interfere unless it clearly appears that there has been an abuse of the power of the judge and that injustice has been done.[53] This is because the good of the service demands more toil and less idleness, and the limitations imposed by law are aimed to cut indolence and not the other way around.[54] IV Our minds cannot sit easy with regard to the charge of violation of the accuseds’ right to counsel. A PAO lawyer is considered as independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused. In People vs. Bacor,[55] we ruled that the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused. V Finally, we find that Justice Badoy incurred delay in resolving Jinggoy Estrada’s motion to be allowed to administer the oath of his mother, a newly elected Senator. Every judge is required, at all times, to be alert in his rulings and in the conduct of the business of the court, so far as he can make it useful to litigants and to the community. Rule 3.05, Canon 3 of the Code of Judicial Conduct provides that “A judge shall dispose of the court’s business promptly and decide cases within the required periods.” A judge must cultivate a capacity for quick decision and habits of indecision must be sedulously overcome. While we commend Justice Badoy’s persistence in searching for precedents that would help him resolve Jinggoy Estradas’ motion to be allowed to administer the oath of office of his mother, nonetheless, he should not have delayed resolving the same. As a result, the members of his Division failed to vote on his Resolution. He knew very well that the oath taking was to be held at 2:00 P.M. of June 29, 2001. Even if he had to deny the motion, he should have consulted his members before 2:00 P.M. so as to give them the opportunity to consider Jinggoy Estrada’s arguments. When he submitted the Resolution to his members at 4:45 P.M., he rendered their votes inconsequential. Even Justices De Castro and Ilarde made notes in the same Resolution to the effect that the matter subject of the Resolution had become moot before it reached them. Justice De Castro stated: “The matter is now moot and academic;” while Justice Ilarde wrote: “What is there to deny? This resolution was brought to us only on 4:45 P.M. The matter has been rendered moot and academic.” Clearly, Justice Badoy should be held liable for such delay. In sum, we find Justice Badoy guilty of the following administrative offenses: 1) conduct unbecoming a Justice for going to GMA-7 Broadcast Station aboard an ambulance and reporting the loss of a Resolution,

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classified as a light charge under Section 10 of Rule 140 of the Revised Rules of Court, as amended;[56] and 2) undue delay in resolving Jinggoy Estrada’s motion to be allowed to administer his mother’s oath of office, a less serious charge under Section 9 of the same Rule.[57] Likewise, we find that both Justice Badoy and Justice De Castro failed to exhibit judicial temperament. Such conduct deserves admonition. One last word. The members of the bench and the bar ought to be reminded that the people expect from them a sense of shared responsibility in the administration of justice – a crucial factor in the speedy and fair disposition of cases. Each of them must do his share for in the last analysis the quality of justice meted out by the courts cannot be higher than the quality of the lawyers practicing in the courts and of the judges who have been selected from among them. WHEREFORE, respondent Justice Anacleto D. Badoy, Jr. (Retired), is hereby FINED in the sum of P13,000.00 for conduct unbecoming a Justice and for delay in issuing an Order, to be deducted from his retirement benefits. Justice Teresita Leonardo-De Castro is hereby ADMONISHED to be more tolerant of counsel’s demeanors which do not detract from the dignity and solemnity of the court proceedings. Let a copy of this Decision be attached to respondents’ records with this Court. SO ORDERED. A.M. No. 188 November 29, 1976 RICARDA GABRIEL DE BUMANGLAG, complainant, vs. ESTEBAN T. BUMANGLAG, respondent. RESOLUTION

TEEHANKEE, J.: In the Court's decision of September 24, 1973, the Court found respondent guilty of gross immoral conduct and ordered his suspension from the practice of law for a period of two (2) years. Respondent filed several motions for reconsideration, all of which were denied per the Court's Resolutions of November 20, 1973, December 19, 1973, January 9, 1974 and October 30, 1974. On March 31, 1975, the Clerk of Court received a 1st Indorsement dated February 21, 1975 from then Assistant Executive Secretary Ronaldo B. Zamora "requesting comment and/or appropriate action" on the therewith enclosed petition of respondent to the President of the Philippines that he "promulgate(s) a decree that the order of suspension by the Supreme Court be set aside and that your humble self be allowed to become an active member of the New Society". The Court per its Resolution of June 16, 1975 directed the Clerk of Court "to furnish the Office of the President through Assistant Executive Secretary Zamora with copies of the Court's decision of September 24, 1973 wherein the Court in a spirit of liberality by majority vote imposed a lesser penalty of two-year suspension instead of disbarment (as voted by a minority composed of Justices Castro and Makasiar) and of the Court's resolutions of November 20, 1973 and December 19, 1973 denying for lack of merit respondent's two motions for reconsideration dated October 18, 1973 and December 12, 1973"; and further resolved "to require respondent to show cause within ten (10) days from notice why he should not be subjected to further disciplinary action for making false statements and misrepresentations in his petition to the President that he has been allegedly deprived of due process of law contrary to the facts of record as stated in the Court's decision, and for gross ignorance of the law and of the Constitution in asking the President to set aside by decree this Court's decision imposing upon him two-year suspension from the practice of law". In a 2nd Indorserment of June 18, 1975 and received by the Clerk of Court on the same day, then Assistant Executive Secretary Zamora forwarded respondent's letter of the same date to the President stating that "(T)he undersigned by now (has) come to realize that I made a big mistake by making said letter to you, Your Excellency, because the Honorable Supreme Court may believe that I may be challenging the decision which is already final and executory and as such do not observe the doctrine of protocol of separation of power(s)", and

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withdrawing and asking the President to disregard his first letter. Respondent in his Explanation of July 23, 1975 cited the fact that he had "immediately" withdrawn his letter asking for the President's intervention and that "lately, however, he has fully realized that the Chief Executive is bereft (of) any authority to set aside or modify the decision of this Honorable Supreme Court" and "with folded hands begs and asks an apology from the members of this Honorable Court, with the full assurance that nothing of this sort will be repeated by him in the future." Respondent served his two-year suspension, as duly noted in the Court's Resolution of November 7, 1975. Since respondent has apologized for his "big mistake" and now appreciates that under the fundamental principle of separation of powers enshrined in both the 1935 and 1973 Constitutions, a decision of this Court may not be set aside by the President, the Court is disposed to view his misconduct and/or ignorance with liberality and will administer a reprimand with warning of severe action on any future transgressions, considering respondent's unenviable record. A final word is called for on respondent's statement in his Explanation inferring that he was led to file his petition with the President by the fact that his motions for reconsideration "were only denied by the Clerk of Court without any comment whatsoever". As the Court has had occasion to state in People vs. Catolico * and earlier cases, this remark of respondent exposes his lack of appreciation or disregard of the time-honored usage of the Court that minute resolutions, summons and processes of the Court, upon being duly adopted and recorded are transmitted to the interested parties by and upon the signature of the Clerk of Court who is duly authorized to do so. With the thousands of resolutions approved monthly by the Court, it would unduly tax the time and attention of the Chief Justice and members of the Court to the prejudice of the administration of justice if all such papers, other than decisions, could be released only upon their own signatures. ACCORDINGLY, respondent is hereby administered a reprimand for gross ignorance of the law and of the Constitution in having asked the President to set aside by decree the Court's decision which suspended him for two years from the practice of law, with warning that the commission of any transgression in the future of his oath and duties as a member of the bar will be severely dealt with. SO ORDERED. A.C. No. 6155

March 14, 2006

MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M. JOAQUIN, Complainants, vs. ATTY. JAIME JUANITO P. PORTUGAL, Respondent. DECISION TINGA, J.: Complainants filed before this Court an affidavit-complaint 1 on 15 August 2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation of the Lawyer’s Oath, gross misconduct, and gross negligence. Complainants are related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of the Philippines, in whose behalf respondent filed the Petition for Review on Certiorari (Ad Cautelam) in the case. The complaint against respondent originated from his alleged mishandling of the above-mentioned petition which eventually led to its denial with finality by this Court to the prejudice of petitioners therein. The facts are as follows: On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively referred to herein as the accused) were involved in a shooting incident which resulted in the death of two individuals and the serious injury of another. As a result, Informations were filed against them before the Sandiganbayan for murder and frustrated murder. The accused pleaded not guilty and trial ensued. After due trial, the Sandiganbayan 2 found the accused guilty of two counts of homicide and one count of attempted homicide. At that juncture, complainants engaged the services of herein respondent for the accused. Respondent then filed a Motion for Reconsideration with the Sandiganbayan but it was denied in a Resolution dated 21 August 2001. Unfazed by the denial, respondent filed an Urgent Motion for Leave to File Second Motion for Reconsideration, with the attached Second Motion for Reconsideration. 3 Pending

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resolution by the Sandiganbayan, respondent also filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on 3 May 2002. Thereafter, complainants never heard from respondent again despite the frequent telephone calls they made to his office. When respondent did not return their phone inquiries, complainants went to respondent’s last known address only to find out that he had moved out without any forwarding address. More than a year after the petition was filed, complainants were constrained to personally verify the status of the ad cautelam petition as they had neither news from respondent about the case nor knowledge of his whereabouts. They were shocked to discover that the Court had already issued a Resolution4 dated 3 July 2002, denying the petition for late filing and non-payment of docket fees. Complainants also learned that the said Resolution had attained finality and warrants of arrest 5 had already been issued against the accused because respondent, whose whereabouts remained unknown, did nothing to prevent the reglementary period for seeking reconsideration from lapsing. In his Comment,6 respondent states that it is of vital significance that the Court notes that he was not the original counsel of the accused. He only met the accused during the promulgation of the Sandiganbayan decision convicting the accused of two counts of homicide and one count of attempted homicide. He was merely requested by the original counsel to be on hand, assist the accused, and be present at the promulgation of the Sandiganbayan decision. Respondent claims that there was no formal engagement undertaken by the parties. But only because of his sincere effort and in true spirit of the Lawyer’s Oath did he file the Motion for Reconsideration. Though admitting its highly irregular character, respondent also made informal but urgent and personal representation with the members of the Division of the Sandiganbayan who promulgated the decision of conviction. He asserts that because of all the efforts he put into the case of the accused, his other professional obligations were neglected and that all these were done without proper and adequate remuneration. As to the ad cautelam petition, respondent maintains that it was filed on time. He stresses that the last day of filing of the petition was on 3 April 2002 and on that very day, he filed with this Court a Motion for Extension of Time to File Petition for Review, 7 seeking an additional thirty (30) days to file the petition. Subsequently, on 3 May 2002, he filed the petition by registered mail and paid the corresponding docket fees. Hence, so he concludes, it was filed within the reglementary period. Soon thereafter, respondent recounted all the "herculean" efforts he made in assisting the accused for almost a year after the promulgation of the Sandiganbayan decision. He considered the fact that it was a case he had just inherited from the original counsel; the effect of his handling the case on his other equally important professional obligations; the lack of adequate financial consideration for handling the case; and his plans to travel to the United States to explore further professional opportunities. He then decided to formally withdraw as counsel for the accused. He wrote a letter to PO3 Rolando Joaquin (PO3 Joaquin), who served as the contact person between respondent and complainants, explaining his decision to withdraw as their counsel, and attaching the Notice to Withdraw which respondent instructed the accused to sign and file with the Court. He sent the letter through registered mail but unfortunately, he could not locate the registry receipt issued for the letter. Respondent states that he has asked the accused that he be discharged from the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was keenly aware that it would be difficult to find a new counsel who would be as equally accommodating as respondent. Respondent suggests this might have been the reason for the several calls complainants made to his office. On 9 February 2004, the Court resolved to refer the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.1awph!l.net The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing to the parties but of the three complainants, only complainant Carlos Joaquin appeared. Thus, in the mandatory conference held, the other two complainants were declared as having waived their rights to further participate in the IBP proceedings. 8 The parties were directed to file their respective position papers and on 27 May 2005, Commissioner Villadolid submitted his Report and Recommendation finding respondent guilty of violation of the Code of Professional Responsibility9 and recommended the imposition of penalty ranging from reprimand to suspension of six (6) months.1awph!l.net10 On 12 November 2005, the Board of Directors of the IBP resolved to adopt and approve Commissioner Villadolid’s recommendation to find respondent guilty and specifically to recommend his

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suspension for six (6) months as penalty. The only issue to be resolved in the case at bar is, considering all the facts presented, whether respondent committed gross negligence or misconduct in handling G.R. No. 152621-23, which eventually led to the ad cautelam petition’s dismissal with finality. After careful consideration of the records of the case, the Court finds the suspension recommended by the IBP proper. In a criminal case like that handled by respondent in behalf of the accused, respondent has a higher duty to be circumspect in defending the accused for it is not only the property of the accused which stands to be lost but more importantly, their right to their life and liberty. As held in Regala v. Sandiganbayan:11 Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, that is required by reason of necessity and public interest x x x . It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other profession in society. x x x 12 At the onset, the Court takes notice that the ad cautelam petition was actually filed out of time. Though respondent filed with the Sandiganbayan an Urgent Motion for Leave to File Second Motion for Reconsideration with the attached Second Motion for Reconsideration, he should have known that a second motion for reconsideration is a prohibited pleading 13 and it rests on the sound discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion did not toll the reglementary period to appeal. Having failed to do so, the accused had already lost their right to appeal long before respondent filed his motion for extension. Therefore, respondent cannot now say he filed the ad cautelam petition on time. Also important to note is the allegation of complainants that the Sandiganbayan denied the second motion for reconsideration in its Resolution dated 7 February 2002. This respondent does not dispute. As to respondent’s conduct in dealing with the accused and complainants, he definitely fell short of the high standard of assiduousness that a counsel must perform to safeguard the rights of his clients. As aptly observed by Commissioner Villadolid, respondent had not been quite candid in his dealings with the accused or complainants. The Court notes that though respondent represented to the accused that he had changed his office address, still, from the examination of the pleadings 14 he filed, it can be gleaned that all of the pleadings have the same mailing address as that known to complainants. Presumably, at some point, respondent’s office would have received the Court’s Resolution dismissing the petition. Of course, the prudent step to take in that situation was to at least inform the client of the adverse resolution since they had constantly called respondent’s office to check the status of the case. Even when he knew that complainants had been calling his office, he opted not to return their calls. Respondent professed an inkling that the several phone calls of complainants may have been about the letter he sent PO3 Joaquin regarding his desire to be discharged as counsel of the case. However, though aware of such likelihood, respondent still did not return their calls. Had he done so, he and complainants could have threshed out all unresolved matters between them. Had respondent truly intended to withdraw his appearance for the accused, he as a lawyer who is presumably steeped in court procedures and practices, should have filed the notice of withdrawal himself instead of the accused. At the very least, he should have informed this Court through the appropriate manifestation that he had already given instructions to his clients on the proper way to go about the filing of the Notice of Withdrawal, as suggested by Commissioner Villadolid. In not so doing, he was negligent in handling the case of the accused. Certainly, respondent ought to know that he was the one who should have filed the Notice to Withdraw and not the accused. His tale that he sent a registered letter to the accused and gave them instructions on how to go about respondent’s withdrawal from the case defies credulity. It should have been respondent who undertook the appropriate measures for the proper withdrawal of his representation. He should not have relied on his client to do it for him if such was truly the case. Without the presentation of the alleged registry receipt (or the return card, which confirms the receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot lend credence to respondent’s naked claim, especially so that complainants have been resolute in their stand that they did not hear from respondent after the latter had filed the ad cautelam petition. He could relieve himself of his responsibility as counsel only first by securing the written conformity of the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules of Court. 15 The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its

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conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final adjudication arises only from the client’s written consent or from a good cause. 16 We agree with Commissioner Villadolid that the dismissal of the ad cautelam petition was primarily due to the gross negligence of respondent. The Court has stressed in Aromin v. Boncavil17 that: Once he agrees to take up the cause of the client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter’s cause with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the maintenance and defense of his client’s rights, and the exertion of the his utmost learning and ability to the end that nothing be taken or withheld from his client, save by the rules of law, legally applied. This simply means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.18 Respondent has time and again stated that he did all the endeavors he enumerated without adequate or proper remuneration. However, complainants have sufficiently disputed such claim when they attached in their position paper filed before the IBP a machine validated deposit slip in the amount of P15,500.00 for the Metro Bank savings account of one Jaime Portugal with account number 7186509273. 19 Respondent has neither admitted nor denied having claimed the deposited amount. The Court also rejects respondent’s claim that there was no formal engagement between the parties and that he made all his efforts for the case without adequate and proper consideration. In the words of then Justice Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta:20 After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty of public service, not money, is the primary consideration.21 Also to the point is another case where this Court ruled, thus: A written contract is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. x x x 22

Hence, even if respondent felt under-compensated in the case he undertook to defend, his obligation embodied in the Lawyer’s Oath and the Code of Professional Responsibility still remains unwavering. The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration. Lastly, the Court does not appreciate the offensive appellation respondent called the shooting incident that the accused was engaged in. He described the incident, thus: "the accused police officers who had been convicted of [h]omicide for the ‘salvage’ of Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato." 23 Rule 14.0124 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic that it is the defense counsel that actually branded his own clients as being the culprits that "salvaged" the victims. Though he might think of his clients as that, still it is unprofessional to be labeling an event as such when even the Sandiganbayan had not done so. The IBP Board of Governors recommended the suspension of respondent for six (6) months, the most severe penalty recommended by Commissioner Villadolid, but did not explain why such penalty was justified. In a fairly recent case where the lawyer failed to file an appeal brief which resulted to the dismissal of the appeal of his client in the Court of Appeals, the Court imposed upon the erring lawyer the penalty of three (3) months’ suspension.25 The Court finds it fit to impose the same in the case at bar. WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for three (3) months. Let a copy of the Resolution be furnished the Bar Confidant for appropriate annotation in the record of respondent.

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SO ORDERED. G.R. No. 90294 September 24, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RlCARDO RIO, accused-appellant. The Solicitor General for plaintiff-appellee. Ray Anthony F. Fajarito for accused-appellant.

PADILLA, J.:p Convicted of rape and sentenced to reclusion perpetua by the Regional Trial Court, Branch CXLVI * of Makati, Metro Manila, in Criminal Case No. 12042, accused-appellant Ricardo Rio interposed his appeal and as a consequence, the clerk of court of said regional trial court branch forwarded the records of the case to the Court of Appeals. The appellate court, however, forwarded the records of the case to the Supreme Court in view of the penalty imposed upon the accused. On 29 December 1989, the accused-appellant Ricardo Rio, in two (2) letters dated 14 December 1989, addressed to Division Clerk of Court Fermin J. Garma and to Assistant Clerk of Court Tomasita M. Dris, manifested his intention to withdraw the appeal due to his poverty. 1 The Court resolved in a resolution dated 22 June 1990 to require the Solicitor General to comment on the appellant's manifestation to withdraw the appeal. In the Comment filed by the Solicitor General, the action recommended was for the Court to ascertain from the accused-appellant, through the clerk of court of the trial court, whether he desired the appointment of a counsel de oficio on appeal, in view of the reasons stated by him for the withdrawal of his appeal, and inasmuch as poverty should not preclude anyone from pursuing a cause. It was also recommended that the clerk of court of the trial court be required by the Court to submit the response of the accused-appellant along with a certificate of compliance with the duty imposed on him 2 by Section 13, of Rule 122 of the Rules of Court, which provides: Sec. 13. Appointment of counsel de oficio for accused on appeal. — It shall be the duty of the clerk of the trial court upon the presentation of a notice of appeal in a criminal case, to ascertain from the appellant, if he is confined in prison, whether he desires the Intermediate Appellate Court or the Supreme Court to appoint a counsel to defend him de oficio and to transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry. The branch clerk of the trial court, in a letter addressed to the Assistant Clerk of Court of the Second Division, this Court, in compliance with the resolution of this Court, dated 16 April 1990, adopting the suggestions of the Solicitor General, which required him to comply with his duty mandated in Section 13, Rule 122 of the Rules of Court, submitted the reply of the accused-appellant informing the Court that he was no longer interested in pursuing his appeal and had, in fact, withdrawn his appeal. 3 Upon recommendation of the Solicitor General, however, the Court in a resolution dated 1 October 1990, denied the appellant's motion withdrawing the appeal and appointed a counsel de oficio for the accused-appellant for, as correctly observed by the Solicitor General, all the letters of the accused-appellant reveal that the only reason offered by him for the withdrawal of his appeal is his inability to retain the services of a counsel de parte on account of his poverty, a reason which should not preclude anyone from seeking justice in any forum. 4 It seems that the accused-appellant was unaware that this Court can appoint a counsel de oficio to prosecute his appeal pursuant to Section 13 of Rule 122 of the Rules of Court and the constitutional mandate provided in Section 11 of Article III of the 1987 Constitution which reads as follows: Sec. 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

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This constitutional provision imposes a duty on the judicial branch of the government which can cannot be taken lightly. "The Constitution", as aptly stated in one case, "is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances." 5 Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileges of the accused in a criminal prosecution are the right to the assistance of counsel and the right to a preliminary examination. President Mckinley made the first a part of the Organic Law in his Instructions to the Commission by imposing the inviolable rule that in all criminal prosecutions the accused 'shall enjoy the right ... to have assistance of counsel for the defense' ". 6 Today said right is enshrined in the 1987 Constitution for, as Judge Cooley says, this is "perhaps the privilege most important to the person accused of crime." 7 "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little meaning if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor, or grant him a reasonable time to procure an attorney of his own." 8 This right to a counsel de oficio does not cease upon the conviction of an accused by a trial court. It continues, even during appeal, such that the duty of the court to assign a counsel de oficio persists where an accused interposes an intent to appeal. Even in a case, such as the one at bar, where the accused had signified his intent to withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the duty to protect the rights of the accused subsists and perhaps, with greater reason. After all, "those who have less in life must have more in law." 9 Justice should never be limited to those who have the means. It is for everyone, whether rich or poor. Its scales should always be balanced and should never equivocate or cogitate in order to favor one party over another. It is with this thought in mind that we charge clerks of court of trial courts to be more circumspect with the duty imposed on them by law (Section 13, Rule 122 of the Rules of Court) so that courts will be above reproach and that never (if possible) will an innocent person be sentenced for a crime he has not committed nor the guilty allowed to go scot-free. In this spirit, the Court ordered the appointment of a counsel de oficio for the accused-appellant and for said counsel and the Solicitor General to file their respective briefs, upon submission of which the case would be deemed submitted for decision. From the records of the case, it is established that the accused-appellant was charged with the crime of rape in a verified complaint filed by complainant Wilma Phua Rio, duly subscribed before 3rd Assistant Fiscal Rodolfo M. Alejandro of the province of Rizal, which reads as follows: That on or about the 24th day of March, 1984, in the Municipality of Muntinlupa, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge of the undersigned Wilma Phua against her will. 10

On 26 June 1985, at the arraignment, the accused-appellant, assisted by Atty. Leonido Manalo of the Makati CLAO office, as counsel de oficio, entered a plea of not guilty to the offense charged. 11 The evidence for the prosecution adduced at the trial established the following facts: During the months of February and March 1984, complainant Wilma Phua, then only 13 years of age, was living with her mother and three (3) sisters in a house in Barangay Bayanan, Municipality of Muntinlupa, Metro Manila. At a distance of about three (3) meters from this house is another house with a toilet and bath also owned by complainant's mother but which was uninhabited at that time. The accused, complainant's uncle, being the younger brother of complainant's mother, was staying in their house, free of board and lodging, although he helped in the household chores. The children used the bathroom in the uninhabited house because the amenities in the

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inhabited house were used only by the adults. 12 At about 2:00 o'clock in the afternoon of 24 March 1984, classes having closed for vacation and while Maria Zena Phua Rio was in the house occupied by her family, her daughter Wilma (complainant) asked her for the key to the comfort room of the uninhabited house because she had to answer a call of nature. After having delivered the key to Wilma, the latter proceeded to the other house, entered the comfort room, and seeing that nobody was around and that her uncle was washing dishes in their house, proceeded to answer nature's call without taking the precaution of locking the comfort room from inside. 13 After relieving herself but before she could raise her panty, the accused entered the bathroom with his body already exposed, held Wilma's hands, and ordered her in a loud voice to lie down and when she resisted, the accused got mad and ordered her to lie down. After she lay down on her back, the accused put himself on top of her and tried to insert his private organ into her private part. Wilma kept pushing the accused away and calling for her mother; however, since the accused was heavier than she, the accused succeeded in overpowering her, inserting his penis into her vagina and having sexual intercourse with her. After satisfying his lust, the accused released Wilma and allowed her to leave the bathroom. 14 Outside the bathroom door, complainant met her mother Maria Zena who, meanwhile, had proceeded to the said other house after sensing that an inordinate length of time had passed and her daughter, complainant herein, had not returned from the bathroom. Maria Zena, upon noticing that Wilma was speechless, trembling and looking fearful, suspected something remiss so she tried to open the door of the bathroom. Unable to open it the first time because it was locked from inside, Maria Zena waited a few minutes before pushing the door again. This time she was successful in finding her brother, the herein accused-appellant in the process of raising his pants. Maria Zena was ignored by her brother when she asked him the reason for his presence inside the bathroom. 15 Still suspecting that the accused has done something to her daughter, Maria Zena continued her inquisition of her brother for several days but to no avail. Finally, on 9 April 1984, the accused was asked to leave the house and move out by his sister Maria Zena. 16 Only after the departure of the accused did Wilma report to her mother the fact that she had been raped by the accused four (4) times between the months of February and March of that year (1984). After receiving such information, Maria Zena wanted her daughter to immediately undergo physical examination; however, Wilma, apparently traumatized by her experience, was too weak to go with her for such examination and frequently suffered from fainting spells. It was only on 30 April 1984 that Maria Zena was able to bring Wilma to the police to report the matter and to file the complaint. After the report to the police, they were referred to the P.C. Crime Laboratory at Camp Crame where Wilma underwent physical examination. 17 Dr. Dario Gajardo, the physician who conducted the internal examination of Wilma, submitted a report of his examination dated 6 May 1984. The medical report showed, among others, the following findings: There is a scanty growth of pubic hair. Labia majora are full, convex and gaping which pale brown, slightly hypertrophied labia minora presenting in between. On separating the same is disclosed an elastic, fleshly-type hymen with deep lacerations at 3, 8 and 9 o'clock. ... 18 The medical report also showed that "there was (sic) no external signs of recent application of any form of trauma." 19 All these findings led him to conclude that Wilma is "in a non-virgin state physicially." 20 Later, on the witness stand, Dr. Gajardo would further testify that Wilma, on inquiry, revealed that the first rape happened in the month of February 1984, but that he could not tell the approximate period or age of the lacerations. 21 Armed with this medical report, Maria Zena and Wilma went back to the police where a sworn statement of Wilma was taken and the complaint for rape against the accused was filed before Third Assistant Fiscal Rodolfo M. Alejandro on 12 May 1984. 22 The evidence for the defense consisted of the testimony of the accused himself and his brother, Amado Rio. The accused's defense was anchored on alibi and he substantially testified as follows: that contrary to the statements made by the witnesses for the prosecution, he was not asked to leave their house in April 1984, the truth being that he left in the month of January 1984 or about a month before the alleged first rape on Wilma was committed because, contrary to an alleged employment agreement between brother and sister, his sister, Maria Zena, had not paid him any salary as helper in their house; that from the month of January 1984, up to 24 March 1984 when the rape charged in the complaint was allegedly committed, he was in their hometown in Kambalo, Cahidiocan, province of Romblon; that at

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the time of his arrest, he was informed of the criminal charge of rape on his niece filed against him in court; that from January 1984 up to the time of his arrest on 6 May 1984, he had stayed in the house of his uncle, Francisco Rio, and had never left the place during the whole period. The accused vehemently denied the rape and conjectured that his sister could have fabricated the charge because he left her house due to her non-payment of his salary as helper. The brother of the accused in the person of Amado Rio corroborated the defense of alibi of the accused. 23 On rebuttal, the prosecution presented Nemesia B. Merca, the Election Registrar of the Municipality of Muntinlupa, who brought with her a Voter's Affidavit which was executed on 31 March 1984 by one Ricardo Rio and was subscribed and sworn to on 31 March 1984 before Tessie Balbas, Chairman of Voting Center No. 37-A of Bayanan, Muntinlupa, Metro Manila. On cross-examination, Registrar Merca admitted that she does not know the accused personally but that the xerox copy of the Voter's Affidavit that she brought to court was copied from a book containing about 60 voter's affidavits of said precinct. 24 After comparing the signature appealing in the Voter's Affidavit with the penmanship appearing on a letter 25 dated 12 December 1985 written by the accused to his brother, Amado Rio and on the envelope of said letter, 26 the trial court ruled that the writing characteristics on the presented documents are the same, especially the rounded dot over the letter "i" appearing in the afore-mentioned mentioned documents. It was, therefore, satisfied that the Voter's Affidavit was indeed prepared by the accused in Bayanan, Muntinlupa, Metro Manila, on 31 March 1984, before Tessie Balbas and that this piece of evidence completely belies the defense of the accused as corroborated by his brother, Amado, that he was in Romblon continuously from the month of January 1984 up to the time that he was arrested on 6 May 1984. 27 Thus, the trial court found the accused-appellant guilty of the crime of rape. The dispositive portion of the decision reads as follows: WHEREFORE, finding the above-named accused guilty of the crime charged in the information beyond reasonable doubt the Court hereby sentences him to suffer the penalty of reclusion perpetua, with the accessory penalties of the law, to indemnify Wilma Phua in the sum of P15,000.00, Philippine currency, and to pay the costs. SO ORDERED. The theory of the defense at the trial level was grounded on alibi. The accused claimed that at the time of the alleged commission of the crime of rape he was in Romblon. This claim was corroborated by the accused's brother, Amado Rio. However, this claim was, as aforestated, rebutted by the prosecution's submission of the voter's affidavit executed by the accused in Muntinlupa, Metro Manila on 31 March 1984 when appellant claimed he was in Romblon. Upon careful examination of the voter's affidavit, the Court is convinced, as the trial court, that the affidavit was indeed executed by the accused himself and the date appearing therein must be presumed correct and genuine. Alibi is inherently a weak defense, easy of fabrication especially between parents and children, husband and wife, and other relatives and even among those not related to each other. For such defense to prosper, the accused must prove that it was not possible for him to have been at the scene of the crime at the time of its commission. 28 In the present case, where nothing supports the alibi except the testimony of a relative, in this case the accused's brother Amado, it deserves but scant consideration. 29 Moreover, the Court notes the fact that while the accused-appellant had another brother and sister living in Manila besides the complainant's mother, those two never came to his aid. Were the accused the innocent man he claims to be, these siblings would have readily helped in his defense. The testimony of his other brother Amado alone cannot raise the necessary doubt to acquit him as against the evidence presented by the prosecution. Furthermore, it would be hard to believe that a female, especially a twelve-year old child, would undergo the expense, trouble and inconvenience of a public trial, not to mention suffer the scandal, embarrassment and humiliation such action inevitably invites, as wen as allow an examination of her private parts if her motive were not to bring to justice the person who had abused her. A victim of rape will not come out in the open if her motive were not to obtain justice. 30 It is harder still to believe that the mother of a child of twelve will abuse her child and make her undergo the trauma of a public trial only to punish someone, let alone a brother, for leaving her without the services of an unpaid helper were it not with the aim to seek justice for

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her child. Nobody in his right mind could possibly wish to stamp his child falsely with the stigma that follows a rape. On appeal, appellant's counsel de oficio changed the theory of the defense. The new theory presented by counsel de oficio is that Wilma Phua consented when accused-appellant had sexual intercourse with her on 24 March 1984. It was stressed by counsel de oficio that the rape occurred on 24 March 1984 and that, allegedly, it was the fourth time accused had abused complainant. This allegation as well as the fact that complainant failed to lock the door to the bathroom could only have been due to the fact that there was consent. The charge was filed, according to defense counsel de oficio, only because the complainant's mother caught them. 31 This theory of the defense on appeal that there had been consent from the complainant, fails to generate doubt as to the accused's guilt, for it would be an incredulous situation indeed to believe that one, so young and as yet uninitiated to the ways of the world, would permit the occurrence of an incestuous relationship with an uncle, a brother of her very own mother. The Court notes the sudden swift in the theory of the defense from one of total denial of the incident in question, by way of alibi, to one of participation, that is, with the alleged consent of the complainant. This new version could only be attributed by the Court to the fact that counsel on appeal is different from the counsel in the trial court. Although the Solicitor General has suggested that this sudden shift be interpreted as an afterthought by the accused or a desperate effort to get himself acquitted, 32 the Court deems it more likely that this shift was caused by counsel de oficio's preparation of the appellant's brief without examining the entire records of the case. If the appointed counsel for the accused, on appeal, had read the records and transcripts of the case thoroughly, he would not have changed the theory of the defense for such a shift can never speak well of the credibility of the defense. Moreover, the rule in civil procedure, which applies equally in criminal cases, is that a party may not shift his theory on appeal. If the counsel de oficio had been more conscientious, he would have known that the sudden shift would be violative of aforementioned procedural rule and detrimental to the cause of the accused-appellant (his client). The Court hereby admonishes members of the Bar to be more conscious of their duties as advocates of their clients' causes, whether acting de parte or de oficio, for "public interest requires that an attorney exert his best efforts and ability in the prosecution or defense of his client's cause." 33 Lawyers are an indispensable part of the whole system of administering justice in this jurisdiction. 34 And a lawyer who performs that duty with diligence and candor not only protects the interests of his client; he also serves the ends of justice, does honor to the Bar and helps maintain the respect of the community to the legal profession. This is so because the entrusted privilege to practice law carries with it correlative duties not only to the client but also to the court, to the bar and to the public. 35 While a lawyer is not supposed to know all the laws, 36 he is expected to take such reasonable precaution in the discharge of his duty to his client and for his professional guidance as will not make him, who is sworn to uphold the law, a transgressor of its precepts. 37 The fact that he merely volunteered his services or the circumstance that he was a counsel de oficio neither diminishes nor alters the degree of professional responsibility owed to his client. 38 The ethics of the profession require that counsel display warm zeal and great dedication to duty irrespective of the client's capacity to pay him his fees. 39 Any attempted presentation of a case without adequate preparation distracts the administration of justice and discredits the Bar. 40 Returning to the case at bar, even if we consider the sudden shift of defense theory as warranted (which we do not), the Court is just as convinced, beyond reasonable doubt, that the accused-appellant is guilty of the crime as charged. His conviction must be sustained. WHEREFORE, the decision of the trial court finding the accused-appellant Ricardo Rio guilty beyond reasonable doubt of the crime of rape and sentencing him to the penalty of reclusion perpetua with all the accessory penalties of the law, is hereby AFFIRMED. The Court, however, increases the amount of indemnity to be paid by the accused-appellant to Wilma Phua to thirty thousand pesos (P30,000.00) in line with prevailing jurisprudence on this matter. Costs against accused-appellant. SO ORDERED. G.R. No. L-23815 June 28, 1974 ADELINO H. LEDESMA, petitioner, vs.

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HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, respondent. Adelino H. Ledesma in his own behalf. Hon. Rafael C. Climaco in his own behalf.

FERNANDO, J.:p What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit. According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3 As noted at the outset, the petition must fail. 1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6

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2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his practice to attend to. That circumstance possesses a high degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8 So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases ...." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12 The weakness of the petition is thus quite evident. 3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 16 Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them,

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when duty to court and to client takes precedence over the promptings of self-interest. WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. filart_1919

September 27, 1919

In re the complaint against Attorney ANACLETO FILART. Acting Attorney-General Feria for the Government. The respondent in his own behalf. MALCOLM, J.: These proceedings were instituted at the instance of thirty-seven residents of Asingan, Pangasinan, who filed a complaint against attorney Anacleto Filart for malpractice, alleging in substance: 1. That while Filart was deputy fiscal of Pangasinan he received of them the sum of P111 as fees for drafting a memorandum in connection with Registration Case No. 3, Record No. 8540; 2. That Filart was guilty of fraud and negligence in prosecuting the appeal to the Supreme Court, he having practically abandoned the case. In connection with point No. 1, even admitting that Filart while deputy fiscal received such a sum of complainants, which respondent denies, Filart seems to have had a legal right to receive compensation as an attorney, the office of deputy provincial fiscal not being specifically included in section 36 of the Code of Civil Procedure as amended by Act No. 1702, as an official who shall not engage in private practice. It is also to be noted that Filart did not take up the case of his own volition but was ordered by the court to defend the rights of petitioners because the attorney they formerly retained was almost always in a state of intoxication. In connection with point No. 2, the following facts are important: 1. That having resigned as deputy fiscal, and having engaged in the practice of law, complainants asked Filart to prosecute the appeal of their case; 2. That Filart received from complainants sums of money, P780 according to complainants, and P160 according to respondent; 3. That the complainants were driven from their lands, and their houses were destroyed, by order of the court. The facts which support the allegation of fraud and negligence on the part of respondent are: 1. The lapse of fifty-one days between the receipt of notice of denial of motion for a new trial (March 7, 1917) until the filing of the bill of exceptions (April 27, 1917) when the statutory period is only thirty days (Act No. 2347), sec. 26); 2. Failure to perfect a satisfactory bill of exceptions after repeated amendments and re-amendments; 3. Failure to file a bond in order to prevent execution; 4. Assurances made by respondent that all was right. 1. This is explained by the fact that the record was not in the clerk's office. The date when the answers to Filart's questions from the Land Registration Office reached Filart, which were to be made a part of the bill of exceptions, does not appear in the record. Filart also alleges he made an oral motion to extend the period fixed by law for the filing of the bill of exceptions, but that motion appears to have been overlooked by the judge; 2. The parties are agreed that the bills of exceptions are voluminous. Respondent further pleads pressure of work in his law office; 3. Respondent says that he believed execution would not be valid until after certiorari proceedings were decided; 4. The exact nature of the assurances do not clearly appear in the record — possibly they are no more than what an attorney fairly confident of success would make to a client. The Acting Attorney-General believes that the facts are not sufficient to support the complaint, and recommends dismissal of the case. We

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agree to the extent that such gross misconduct or negligence has not been shown as warrants disbarment or suspension pursuant to sections 21 and 22 of the Code of Civil Procedure. "That part of the profession," said Lord Mansfield in Pitt vs. Yalden, ([1767], 4 Burr., 2060), "which is carried on by attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected when they act to the best of their skill and knowledge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake. . . . A counsel may mistake as well as an attorney. . . . Yet no one will say that a counsel who has been mistaken shall be charged. . . . Not only counsel but judges may differ, or doubt, or take time to consider. Therefore, an attorney ought not to be liable in case of reasonable doubt." "No attorney," said Chief Justice Abbott, "is bound to know all the law; God forbid that it should be imagined that an attorney or a counsel, or even a judge, is bound to know all the law." (Montorious vs. Jeffreys, 2 Car. & P., 113.) The court, having in mind the many appeals which have been dismissed because of the lack of diligence of counsel, cannot let the occurrence pass without expressing a strong disapproval of such criminal carelessness. While we would not wish to assume a harsh and uncompromising attitude towards attorneys-at-law, we would wish for them to know that by indulging in such unprofessional tactics they become unworthy of the trust which the law reposes in them. The lack of due care is a breach of the attorney's undertaking with his client, and is indicative of a disregard of the attorney's duties to the court. We bring to the notice of clients whose rights have been prejudiced by the failure or by the delay of an attorney in preparing or filing pleadings necessary in the proper conduct of a cause, and in taking such steps as may be required in the progress of the case, that the client who has suffered damages as the result of his attorney's negligence or misconduct may recover therefor. In Drais vs. Hoggan ([1875], 50 Cal., 121), although many other cases might be cited, it was held that "if a judgment is obtained against a party upon a complaint which is radically defective, and he desires to appeal, and procures bondsmen, but his attorney neglects to do so until the time for appeal expires, the attorney is guilty of gross negligence, and is liable for the loss sustained by the client." Without, therefore, desiring especially to overemphasize the dereliction of Attorney Anacleto Filart for, sad to relate, he is only one of a class, it does become our solemn duty to reprimand him for carelessness and misconduct in attending to the cause of poor clients. Let a copy of this order be furnished to the respondent for his information with a warning that a more severe punishment will be meted out to him in case of a repetition of similar acts and omissions; and let a copy hereof be filed with his personal papers in this court. So ordered. A.C. No. 3701 March 28, 1995 PHILIPPINE NATIONAL BANK, complainant, vs. ATTY. TELESFORO S. CEDO, respondent. RESOLUTION

BIDIN, J.: In a verified letter-complaint dated August 15, 1991, complainant Philippine National Bank charged respondent Atty. Telesforo S. Cedo, former Asst. Vice-President of the Asset Management Group of complainant bank with violation of Canon 6, Rule 6.03 of the Code of Professional Responsibility, thus: 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. by appearing as counsel for individuals who had transactions with complainant bank in which respondent during his employment with aforesaid bank, had intervened. Complainant averred that while respondent was still in its employ, he participated in arranging the sale of steel sheets (denominated as Lots 54-M and 55-M) in favor of Milagros Ong Siy for P200,000. He even "noted" the gate passes issued by his subordinate, Mr. Emmanuel Elefan, in favor of Mrs. Ong Siy authorizing the pull-out of the steel sheets from the DMC Man Division Compound. When a civil action arose out of this transaction between Mrs. Ong Siy and complainant bank before the Regional Trial Court of Makati, Branch 146, respondent who had since left the employ of complainant bank, appeared as one of the counsels of Mrs. Ong Siy. Similarly, when the same transaction became the subject of an administrative case filed by complainant bank against his former

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subordinate Emmanuel Elefan, for grave misconduct and dishonesty, respondent appeared as counsel for Elefan only to be later disqualified by the Civil Service Commission. Moreover, while respondent was still the Asst. Vice President of complainant’s Asset Management Group, he intervened in the handling of the loan account of the spouses Ponciano and Eufemia Almeda with complainant bank by writing demand letters to the couple. When a civil action ensued between complainant bank and the Almeda spouses as a result of this loan account, the latter were represented by the law firm "Cedo, Ferrer, Maynigo & Associates" of which respondent is one of the Senior Partners. In his Comment on the complaint, respondent admitted that he appeared as counsel for Mrs. Ong Siy but only with respect to the execution pending appeal of the RTC decision. He alleged that he did not participate in the litigation of the case before the trial court. With respect to the case of the Almeda spouses, respondent alleged that he never appeared as counsel for them. He contended that while the law firm "Cedo Ferrer, Maynigo & Associates" is designated as counsel of record, the case is actually handled only by Atty. Pedro Ferrer. Respondent averred that he did not enter into a general partnership with Atty. Pedro Ferrer nor with the other lawyers named therein. They are only using the aforesaid name to designate a law firm maintained by lawyers, who although not partners, maintain one office as well as one clerical and supporting staff. Each one of them handles their own cases independently and individually receives the revenues therefrom which are not shared among them. In the resolution of this Court dated January 27, 1992, this case was referred to the Integrated Bar of the Philippines (IBP), for investigation, report and recommendation. During the investigation conducted by the IBP, it was discovered that respondent was previously fined by this Court in the amount of P1,000.00 in connection with G.R. No. 94456 entitled "Milagros Ong Siy vs. Hon. Salvador Tensuan, et al." for forum shopping, where respondent appeared as counsel for petitioner Milagros Ong Siy "through the law firm of Cedo Ferrer Maynigo and Associates." The IBP further found that the charges herein against respondent were fully substantiated. Respondent's averment that the law firm handling the case of the Almeda spouses is not a partnership deserves scant consideration in the light of the attestation of complainant's counsel, Atty. Pedro Singson, that in one of the hearings of the Almeda spouses' case, respondent attended the same with his partner Atty. Ferrer, and although he did not enter his appearance, he was practically dictating to Atty. Ferrer what to say and argue before the court. Furthermore, during the hearing of the application for a writ of injunction in the same case, respondent impliedly admitted being the partner of Atty. Ferrer, when it was made of record that respondent was working in the same office as Atty. Ferrer. Moreover, the IBP noted that assuming the alleged set-up of the firm is true, it is in itself a violation of the Code of Professional Responsibility (Rule 15.02) since the client’s secrets and confidential records and information are exposed to the other lawyers and staff members at all times. From the foregoing, the IBP found a deliberate intent on the part of respondent to devise ways and means to attract as clients former borrowers of complainant bank since he was in the best position to see the legal weaknesses of his former employer, a convincing factor for the said clients to seek his professional service. In sum, the IBP saw a deliberate sacrifice by respondent of his ethics in consideration of the money he expected to earn. The IBP thus recommended the suspension of respondent from the practice of law for 3 years. The records show that after the Board of Governors of the IBP had, on October 4, 1994, submitted to this Court its Report and recommendation in this case, respondent filed a Motion for Reconsideration dated October 25, 1994 of the recommendation contained in the said Report with the IBP Board of Governors. On December 12, 1994, respondent also filed another "Motion to Set Hearing" before this Court, the aforesaid Motion for Reconsideration. In resolving this case, the Court took into consideration the aforesaid pleadings. In addition to the findings of the IBP, this Court finds this occasion appropriate to emphasize the paramount importance of avoiding the representation of conflicting interests. In the similar case of Pasay Law and Conscience Union, Inc. vs. Paz, (95 SCRA 24 [1980]) where a former Legal Officer and Legal Prosecutor of PARGO who participated in the investigation of the Anti-Graft case against Mayor Pablo Cuneta later on acted as counsel for the said Mayor in the same anti-graft case, this Court, citing Nombrado vs. Hernandez (26 SCRA 13 119681) ruled: The Solicitor General is of the opinion, and we find no reason to disagree with him, that even if respondent did not use against his client any information or evidence acquired by him as counsel it cannot be denied that he did become privy to information regarding the ownership of the parcel of land which was later litigated in the forcible entry case, for it

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was the dispute over the land that triggered the mauling incident which gave rise to the criminal action for physical injuries. This Court's remarks in Hilado vs. David, 84 Phil. 571, are apropos: "Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well-known facts. In the complexity of what is said in the course of dealings between an attorney and client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause." Whatever may be said as to whether or not respondent utilized against his former client information given to him in a professional capacity, the mere fact of their previous relationship should have precluded him from appearing as counsel for the other side in the forcible entry case. In the case of Hilado vs. David, supra, this Tribunal further said: Hence the necessity of setting 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, of 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 attorney, 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. The foregoing disquisition on conflicting interest applies with equal force and effect to respondent in the case at bar. Having been an executive of complainant bank, respondent now seeks to litigate as counsel for the opposite side, a case against his former employer involving a transaction which he formerly handled while still an employee of complainant, in violation of Canon 6 of the Canons of Professional Ethics on adverse influence and conflicting interests, to wit: It is unprofessional to represent conflicting interests, except by express conflicting consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interest when, in behalf on one client, it is his duty to contend for that which duty to another client requires him to oppose. ACCORDINGLY, this Court resolves to SUSPEND respondent ATTY. TELESFORO S. CEDO from the practice of law for THREE (3) YEARS, effective immediately. Let copies of this resolution be furnished the Integrated Bar of the Philippines and all courts in Metro Manila. SO ORDERED. [A.C. No. 5108. May 26, 2005] ROSA F. MERCADO, complainant, vs. ATTY. JULITO D. VITRIOLO, respondent. DECISION PUNO, J.: Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D. Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that respondent maliciously instituted a criminal case for falsification of public document against her, a former client, based on confidential information gained from their attorney-client relationship. Let us first hearken to the facts. Complainant is a Senior Education Program Specialist of the Standards Development Division, Office of Programs and Standards while respondent is a Deputy Executive Director IV of the Commission on Higher Education (CHED).[1] Complainant’s husband filed Civil Case No. 40537 entitled “Ruben G. Mercado v. Rosa C. Francisco,” for annulment of their marriage with the Regional Trial Court (RTC) of Pasig City. This annulment case had been dismissed by the trial court, and the dismissal became final and executory on July 15, 1992.[2]

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In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On February 7, 1994, respondent entered his appearance before the trial court as collaborating counsel for complainant.[3] On March 16, 1994, respondent filed his Notice of Substitution of Counsel,[4] informing the RTC of Pasig City that he has been appointed as counsel for the complainant, in substitution of Atty. de Leon. It also appears that on April 13, 1999, respondent filed a criminal action against complainant before the Office of the City Prosecutor, Pasig City, entitled “Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado,” and docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172 (falsification of public document) of the Revised Penal Code.[5] Respondent alleged that complainant made false entries in the Certificates of Live Birth of her children, Angelica and Katelyn Anne. More specifically, complainant allegedly indicated in said Certificates of Live Birth that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben G. Mercado and their marriage took place on April 11, 1978. Complainant denied the accusations of respondent against her. She denied using any other name than “Rosa F. Mercado.” She also insisted that she has gotten married only once, on April 11, 1978, to Ruben G. Mercado. In addition, complainant Mercado cited other charges against respondent that are pending before or decided upon by other tribunals – (1) libel suit before the Office of the City Prosecutor, Pasig City;[6] (2) administrative case for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations, and violations of the “Anti-Graft and Corrupt Practices Act,” before the then Presidential Commission Against Graft and Corruption;[7] (3) complaint for dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service before the Office of the Ombudsman, where he was found guilty of misconduct and meted out the penalty of one month suspension without pay;[8] and, (4) the Information for violation of Section 7(b)(2) of Republic Act No. 6713, as amended, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees before the Sandiganbayan.[9] Complainant Mercado alleged that said criminal complaint for falsification of public document (I.S. No. PSG 99-9823) disclosed confidential facts and information relating to the civil case for annulment, then handled by respondent Vitriolo as her counsel. This prompted complainant Mercado to bring this action against respondent. She claims that, in filing the criminal case for falsification, respondent is guilty of breaching their privileged and confidential lawyer-client relationship, and should be disbarred. Respondent filed his Comment/Motion to Dismiss on November 3, 1999 where he alleged that the complaint for disbarment was all hearsay, misleading and irrelevant because all the allegations leveled against him are subject of separate fact-finding bodies. Respondent claimed that the pending cases against him are not grounds for disbarment, and that he is presumed to be innocent until proven otherwise. [10] He also states that the decision of the Ombudsman finding him guilty of misconduct and imposing upon him the penalty of suspension for one month without pay is on appeal with the Court of Appeals. He adds that he was found guilty, only of simple misconduct, which he committed in good faith.[11] In addition, respondent maintains that his filing of the criminal complaint for falsification of public documents against complainant does not violate the rule on privileged communication between attorney and client because the bases of the falsification case are two certificates of live birth which are public documents and in no way connected with the confidence taken during the engagement of respondent as counsel. According to respondent, the complainant confided to him as then counsel only matters of facts relating to the annulment case. Nothing was said about the alleged falsification of the entries in the birth certificates of her two daughters. The birth certificates are filed in the Records Division of CHED and are accessible to anyone.[12] In a Resolution dated February 9, 2000, this Court referred the administrative case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[13] The IBP Commission on Bar Discipline set two dates for hearing but complainant failed to appear in both. Investigating Commissioner Rosalina R. Datiles thus granted respondent’s motion to file his memorandum, and the case was submitted for resolution based on the pleadings submitted by the parties.[14] On June 21, 2003, the IBP Board of Governors approved the report of investigating commissioner Datiles, finding the respondent guilty of violating the rule on privileged communication between attorney and client, and recommending his suspension from the practice of law for one (1) year. On August 6, 2003, complainant, upon receiving a copy of the IBP report and recommendation, wrote Chief Justice Hilario Davide, Jr., a

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letter of desistance. She stated that after the passage of so many years, she has now found forgiveness for those who have wronged her. At the outset, we stress that we shall not inquire into the merits of the various criminal and administrative cases filed against respondent. It is the duty of the tribunals where these cases are pending to determine the guilt or innocence of the respondent. We also emphasize that the Court is not bound by any withdrawal of the complaint or desistance by the complainant. The letter of complainant to the Chief Justice imparting forgiveness upon respondent is inconsequential in disbarment proceedings. We now resolve whether respondent violated the rule on privileged communication between attorney and client when he filed a criminal case for falsification of public document against his former client. A brief discussion of the nature of the relationship between attorney and client and the rule on attorney-client privilege that is designed to protect such relation is in order. In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting and confidential nature that is required by necessity and public interest.[15] Only by such confidentiality and protection will a person be encouraged to repose his confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.[16] Thus, the preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney, which is of paramount importance to the administration of justice.[17] One rule adopted to serve this purpose is the attorney-client privilege: an attorney is to keep inviolate his client’s secrets or confidence and not to abuse them.[18] Thus, the duty of a lawyer to preserve his client’s secrets and confidence outlasts the termination of the attorney-client relationship,[19] and continues even after the client’s death.[20] It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer’s tongue is tied from ever disclosing it.[21] With full disclosure of the facts of the case by the client to his attorney, adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the client’s cause. Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors essential to establish the existence of the privilege, viz: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.[22] 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.[23] 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.[24] On the other hand, a communication from a (prospective) client to a lawyer for some purpose other than on account of the (prospective) attorney-client relation is not privileged. Instructive is the case of Pfleider v. Palanca,[25] where the client and his wife leased to their attorney a 1,328-hectare agricultural land for a period of ten years. In their contract, the parties agreed, among others, that a specified portion of the lease rentals would be paid to the client-lessors, and the remainder would be delivered by counsel-lessee to client's listed creditors. The client alleged that the list of creditors which he had “confidentially” supplied counsel for the purpose of carrying out the terms of payment contained in the lease contract was disclosed by counsel, in violation of their lawyer-client relation, to parties whose interests are adverse to those of the client. As the client himself, however, states, in the execution of the terms of the aforesaid lease contract between the parties, he furnished counsel with the “confidential” list of his creditors. We ruled that this indicates that client delivered the list of his creditors to counsel not because of the professional relation then existing between them, but on account of the lease agreement. We then held that a violation of the confidence that accompanied the delivery of that list would partake more of a private and civil wrong than of a breach of the fidelity owing from a lawyer to his client.

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(2)

The client made the communication in confidence.

The mere relation of attorney and client does not raise a presumption of confidentiality.[26] The client must intend the communication to be confidential.[27] 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.[28] 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,[29] an offer and counter-offer for settlement,[30] or a document given by a client to his counsel not in his professional capacity,[31] are not privileged communications, the element of confidentiality not being present.[32] (3)

The legal advice must be sought from the attorney in his professional capacity.[33]

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.[34] If the client seeks an accounting service,[35] or business or personal assistance,[36] and not legal advice, the privilege does not attach to a communication disclosed for such purpose. Applying all these rules to the case at bar, we hold that the evidence on record fails to substantiate complainant’s allegations. We note that complainant did not even specify the alleged communication in confidence disclosed by respondent. All her claims were couched in general terms and lacked specificity. She contends that respondent violated the rule on privileged communication when he instituted a criminal action against her for falsification of public documents because the criminal complaint disclosed facts relating to the civil case for annulment then handled by respondent. She did not, however, spell out these facts which will determine the merit of her complaint. The Court cannot be involved in a guessing game as to the existence of facts which the complainant must prove. Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from the complainant as to the specific confidential information allegedly divulged by respondent without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication. 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.[37] The burden of proving that the privilege applies is placed upon the party asserting the privilege.[38] IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit. SO ORDERED. ROLANDO B. PACANA, JR.,

A.C. No. 8243

Complainant, Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO,

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CARPIO, CORONA, - versus -

CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,* PERALTA, and BERSAMIN, JJ.

ATTY. MARICEL PASCUAL-LOPEZ, Respondent.

Promulgated:

July 24, 2009

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

DECISION

PER CURIAM:

This case stems from an administrative complaint[1] filed by Rolando Pacana, Jr. against Atty. Maricel Pascual-Lopez charging the latter with flagrant violation of the provisions of the Code of Professional Responsibility.[2] Complainant alleges that respondent committed acts constituting conflict of interest, dishonesty, influence peddling, and failure to render an accounting of all the money and properties received by her from complainant.

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On January 2, 2002, complainant was the Operations Director for Multitel Communications Corporation (MCC). MCC is an affiliate company of Multitel International Holdings Corporation (Multitel). Sometime in July 2002, MCC changed its name to Precedent Communications Corporation (Precedent).[3]

According to complainant, in mid-2002, Multitel was besieged by demand letters from its members and investors because of the failure of its investment schemes. He alleges that he earned the ire of Multitel investors after becoming the assignee of majority of the shares of stock of Precedent and after being appointed as trustee of a fund amounting to Thirty Million Pesos ( P30,000,000.00) deposited at Real Bank.

Distraught, complainant sought the advice of respondent who also happened to be a member of the Couples for Christ, a religious organization where complainant and his wife were also active members. From then on, complainant and respondent constantly communicated, with the former disclosing all his involvement and interests in Precedent and Precedent’s relation with Multitel. Respondent gave legal advice to complainant and even helped him prepare standard quitclaims for creditors. In sum, complainant avers that a lawyer-client relationship was established between him and respondent although no formal document was executed by them at that time. A Retainer Agreement[4] dated January 15, 2003 was proposed by respondent. Complainant, however, did not sign the said agreement because respondent verbally asked for One Hundred Thousand Pesos (P100,000.00) as acceptance fee and a 15% contingency fee upon collection of the overpayment made by Multitel to Benefon,[5] a telecommunications company based in Finland. Complainant found the proposed fees to be prohibitive and not within his means.[6] Hence, the retainer agreement remained unsigned.[7]

After a few weeks, complainant was surprised to receive a demand letter from respondent [8] asking for the return and immediate settlement of the funds invested by respondent’s clients in Multitel. When complainant confronted respondent about the demand letter, the latter explained that she had to send it so that her clients – defrauded investors of Multitel – would know that she was doing something for them and assured complainant that there was nothing to worry about.[9]

Both parties continued to communicate and exchange information regarding the persistent demands made by Multitel investors against complainant. On these occasions, respondent impressed upon complainant that she can closely work with officials of the Anti-Money Laundering Council (AMLC), the Department of Justice (DOJ), the National Bureau of Investigation (NBI), the Bureau of Immigration and Deportations (BID),[10] and the Securities and Exchange Commission (SEC)[11] to resolve complainant’s problems. Respondent also convinced complainant that in order to be absolved from any liability with respect to the investment scam, he must be able to show to the DOJ that he was willing to divest any and all of his interests in Precedent including the funds assigned to him by Multitel.[12] Respondent also asked money from complainant allegedly for safekeeping to be used only for his case whenever necessary. Complainant agreed and gave her an initial amount of P900,000.00 which was received by respondent herself.[13] Sometime thereafter, complainant again gave respondent P1,000,000.00.[14] Said amounts were all part of Precedent’s collections and sales proceeds which complainant held as assignee of the company’s properties.[15]

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When complainant went to the United States (US), he received several messages from respondent sent through electronic mail (e-mail) and short messaging system (SMS, or text messages) warning him not to return to the Philippines because Rosario Baladjay, president of Multitel, was arrested and that complainant may later on be implicated in Multitel’s failed investment system. Respondent even said that ten (10) arrest warrants and a hold departure order had been issued against him. Complainant, thereafter, received several e-mail messages from respondent updating him of the status of the case against Multitel and promised that she will settle the matter discreetly with government officials she can closely work with in order to clear complainant’s name.[16] In two separate e-mail messages,[17] respondent again asked money from complainant, P200,000 of which was handed by complainant’s wife while respondent was confined in Saint Luke’s Hospital after giving birth,[18] and another P700,000 allegedly to be given to the NBI.[19]

Through respondent’s persistent promises to settle all complainant’s legal problems, respondent was able to convince complainant who was still in the US to execute a deed of assignment in favor of respondent allowing the latter to retrieve 178 boxes containing cellular phones and accessories stored in complainant’s house and inside a warehouse.[20] He also signed a blank deed of sale authorizing respondent to sell his 2002 Isuzu Trooper.[21]

Sometime in April 2003, wary that respondent may not be able to handle his legal problems, complainant was advised by his family to hire another lawyer. When respondent knew about this, she wrote to complainant via e-mail, as follows:

Dear Butchie,

Hi! Ok ka lang? Hope you are fine. Sorry if I shocked you but I had to do it as your friend and lawyer. The charges are all non-bailable but all the same as the SEC report I told you before. The findings are the same, i.e. your company was the front for the fraud of Multitel and that funds were provided you.

I anticipated this, that is why I really pushed for a quitclaim. Rolly is willing to return the Crosswind, laptap (sic) and [P]alm [P]ilot. Manny Cancio really helped. Anthony na lang. Then, I will need the accounting of all the funds you received from the sale of the phones, every employees and directors[’] quitclaim (including yours), the funds transmitted to the clients through me, the funds you utilized, and whatelse (sic) is still unremitted, every centavo must be accounted for as DOJ and NBI can have the account opened.

I will also need the P30 M proof of deposit with Real [B]ank and the trust given [to] you. So we can inform them [that] it was not touched by you.

I have been informed by Efie that your family is looking at hiring Coco Pimentel. I know him very well as his sister Gwen is my best friend. I have no problem if you hire him but I will be hands off. I work differently kasi. In this cases (sic), you cannot be highprofile (sic) because it is the clients who will be sacrificed at the expense of the fame of the lawyer. I have to work quietly and discreetly. No funfare. Just like what I did for your guys in the SEC. I have to work with people I am comfortable with. Efren Santos will sign as your lawyer although I will do all the work. He can help with all his connections. Val’s friend in the NBI is the one is (sic) charge of organized crime who is the entity (sic) who has your warrant. My law partner was the state prosecutor for financial fraud. Basically we have it covered in all aspects and all departments. I am just trying to liquidate the phones I have allotted for you s ana (sic) for your trooper kasi whether we like it or not, we have to give this agencies (sic) to make our work easier according to Val. The funds with

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Mickey are already accounted in the quit claims (sic) as attorneys (sic) fees. I hope he will be able to send it so we have funds to work with. As for your kids, legally they can stay here but recently, it is the children who (sic) the irate clients and government officials harass and kidnap to make the individuals they want to come out from hiding (sic). I do not want that to happen. Things will be really easier on my side.

Please do not worry. Give me 3 months to make it all disappear. But if you hire Coco, I will give him the free hand to work with your case. Please trust me. I have never let you down, have I? I told you this will happen but we are ready and prepared. The clients who received the phones will stand by you and make you the hero in this scandal. I will stand by you always. This is my expertise. TRUST me! That is all. You have an angel on your side. Always pray though to the best legal mind up there. You will be ok!

Candy[22]

On July 4, 2003, contrary to respondent’s advice, complainant returned to the country. On the eve of his departure from the United States, respondent called up complainant and conveniently informed him that he has been cleared by the NBI and the BID.[23]

About a month thereafter, respondent personally met with complainant and his wife and told them that she has already accumulated P12,500,000.00 as attorney’s fees and was willing to give P2,000,000.00 to complainant in appreciation for his help. Respondent allegedly told complainant that without his help, she would not have earned such amount. Overwhelmed and relieved, complainant accepted respondent’s offer but respondent, later on, changed her mind and told complainant that she would instead invest the P2,000,000.00 on his behalf in a business venture. Complainant declined and explained to respondent that he and his family needed the money instead to cover their daily expenses as he was no longer employed. Respondent allegedly agreed, but she failed to fulfill her promise.[24]

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Respondent even publicly announced in their religious organization that she was able to help settle the ten (10) warrants of arrest and hold departure order issued against complainant and narrated how she was able to defend complainant in the said cases.[25]

By April 2004, however, complainant noticed that respondent was evading him. Respondent would either refuse to return complainant’s call or would abruptly terminate their telephone conversation, citing several reasons. This went on for several months. [26] In one instance, when complainant asked respondent for an update on the collection of Benefon’s obligation to Precedent which respondent had previously taken charge of, respondent arrogantly answered that she was very busy and that she would read Benefon’s letter only when she found time to do so.

On November 9, 2004, fed up and dismayed with respondent’s arrogance and evasiveness, complainant wrote respondent a letter formally asking for a full accounting of all the money, documents and properties given to the latter.[27] Respondent rendered an accounting through a letter dated December 20, 2004.[28] When complainant found respondent’s explanation to be inadequate, he wrote a latter expressing his confusion about the accounting.[29] Complainant repeated his request for an audited financial report of all the properties turned over to her; otherwise, he will be constrained to file the appropriate case against respondent.[30] Respondent replied,[31] explaining that all the properties and cash turned over to her by complainant had been returned to her clients who had money claims against Multitel. In exchange for this, she said that she was able to secure quitclaim documents clearing complainant from any liability. [32] Still unsatisfied, complainant decided to file an affidavit-complaint[33] against respondent before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) seeking the disbarment of respondent.

In her Answer-Affidavit,[34] respondent vehemently denied being the lawyer for Precedent. She maintained that no formal engagement was executed between her and complainant. She claimed that she merely helped complainant by providing him with legal advice and assistance because she personally knew him, since they both belonged to the same religious organization.[35]

Respondent insisted that she represented the group of investors of Multitel and that she merely mediated in the settlement of the claims her clients had against the complainant. She also averred that the results of the settlement between both parties were fully documented and accounted for.[36] Respondent believes that her act in helping complainant resolve his legal problem did not violate any ethical standard and was, in fact, in accord with Rule 2.02 of the Code of Professional Responsibility.[37]

To bolster her claim that the complaint was without basis, respondent noted that a complaint for estafa was also filed against her by complainant before the Office of the City Prosecutor in Quezon City citing the same grounds. The complaint was, however, dismissed by Assistant City Prosecutor Josephus Joannes H. Asis for insufficiency of evidence.[38] Respondent argued that on this basis alone, the administrative case must also be dismissed.

In her Position Paper,[39] respondent also questioned the admissibility of the electronic evidence submitted by complainant to the IBP’s Commission on Bar Discipline. Respondent maintained that the e-mail and the text messages allegedly sent by respondent to complainant

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were of doubtful authenticity and should be excluded as evidence for failure to conform to the Rules on Electronic Evidence (A.M. No. 01-7-01-SC).

After due hearing, IBP Investigating Commissioner Patrick M. Velez issued a Report and Recommendation[40] finding that a lawyerclient relationship was established between respondent and complainant despite the absence of a written contract. The Investigating Commissioner also declared that respondent violated her duty to be candid, fair and loyal to her client when she allowed herself to represent conflicting interests and failed to render a full accounting of all the cash and properties entrusted to her. Based on these grounds, the Investigating Commissioner recommended her disbarment.

Respondent moved for reconsideration,[41] but the IBP Board of Governors issued a Recommendation[42] denying the motion and adopting the findings of the Investigating Commissioner.

The case now comes before this Court for final action.

We affirm the findings of the IBP. Rule 15.03, Canon 15 of the Code of Professional responsibility provides:

Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.

This prohibition is founded on principles of public policy, good taste[43] and, more importantly, upon necessity. In the course of a lawyerclient relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof.[44] 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 paramount in the administration of justice. [45] It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.[46]

Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,”[47] precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.[48]

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Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant.[49] This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:

The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession.[50] (Emphasis supplied.)

Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.

In Hornilla v. Atty. Salunat,[51] we explained the concept of conflict of interest, thus:

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.[52]

Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant. [53] Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility, [54] but also toyed with decency and good taste. Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. [55] This

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remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter[56] even if no private individual files any administrative complaint.

Upon review, we find no cogent reason to disturb the findings and recommendations of the IBP Investigating Commissioner, as adopted by the IBP Board of Governors, on the admissibility of the electronic evidence submitted by complainant. We, accordingly, adopt the same in toto.

Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. [57] Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.

The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions.[58] The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.

WHEREFORE, respondent Attorney Maricel Pascual-Lopez is hereby DISBARRED for representing conflicting interests and for engaging in unlawful, dishonest and deceitful conduct in violation of her Lawyer’s Oath and the Code of Professional Responsibility.

Let a copy of this Decision be entered in the respondent’s 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. [A.C. No. 5024. February 20, 2003] ARSENIA T. BERGONIA, complainant, vs. Atty. ARSENIO A. MERRERA, respondent.

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DECISION PANGANIBAN, J.: A motion for extension to file an appellant’s brief carries with it the presumption that the applicant-lawyer will file the pleading within the period granted. Failure to so file the brief without any reasonable excuse is a violation of the Canons of Professional Responsibility. For such violation, a lawyer may be administratively sanctioned, especially if it results in damage to the client. The Case This administrative case stems from an Affidavit-Complaint[1] filed by Arsenia T. Bergonia on March 2, 1999, seeking the disbarment of Atty. Arsenio A. Merrera for violating Canons 12 and 18 of the Code of Professional Responsibility. Complainant alleged that his inexcusable negligence, while acting as her counsel, caused the unceremonious dismissal of her appeal. Specifically, despite obtaining two extensions, he still failed to file the required appellant’s brief in the Court of Appeals. After a careful consideration of the Complaint and respondent’s Comment[2] thereon dated November 22, 1999, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. IBP Commissioner Rebecca Villanueva-Maala’s November 15, 2001 Report[3] recommending the six-month suspension of respondent from the practice of law was adopted and approved by the IBP Board of Governors in its June 29, 2002 Resolution No. XV-2002-236. On August 15, 2002, the Notice of the IBP Resolution[4] and that of the Commissioner’s Report were forwarded to the Office of the Bar Confidant by Atty. Victor C. Fernandez, director for bar discipline of the IBP.[5] The Facts Complainant, together with her relatives, filed a case for the quieting of title (docketed as Civil Case No. U-4601) against her niece Josephine Bergonia, as well as Spouses Rodolfo and Remedios Parayno and their minor daughter Gretchen.[6] After due trial, the Regional Trial Court (RTC) of Urdaneta, Pangasinan, Branch 49,[7] promulgated its Decision in favor of the Parayno spouses and their daughter.[8] On appeal, the CA affirmed the ruling of the trial court[9] and the Decision became final and executory.[10] Since the disputed land was still in the possession of complainant, the Paraynos instituted Civil Case No. U-6061 to recover possession. [11] After the Answer was filed, respondent became her counsel of record. After due trial, Branch 48[12] of the same RTC rendered its Decision[13] ordering her to vacate the premises and to surrender possession thereof to the Parayno spouses. Thereafter, complainant appealed the RTC judgment to the CA. Respondent, as counsel, received a Notice to File Brief[14] on December 17, 1997. Acting on his Motion for extension to file the appellant’s brief,[15] the CA in its February 18, 1998 minute Resolution[16] granted him until March 17, 1998 to do so. Even before the first extension had lapsed, however, he again filed an Urgent Second Motion for extension to file brief,[17] praying that he be given until April 16, 1998 to submit the required pleading. The CA again granted his Second Motion.[18] Eventually, the deadline, which had already been extended twice, lapsed without his filing the appellant’s brief. Hence, the CA, upon motion of the appellees, dismissed the appeal in its June 25, 1998 Resolution.[19] Report and Recommendation of the IBP Commissioner Maala found respondent guilty of inexcusable negligence. She rejected his explanation that he had already advised complainant not to pursue the appeal even before the filing of the Notice of Appeal. In fact, after the appellee filed a Motion to Dismiss the appeal, he even filed an Opposition, thus raising complainant’s hopes of eventual victory. If respondent thought it was best to dispense with the appellant’s brief, he should have filed a manifestation or motion to that effect. Instead, he opposed the Motion to Dismiss and asked for further extensions of time. His actions clearly showed how negligent and irresponsible he had been in filing the brief. The board of directors of the IBP concurred with Commissioner Maala that respondent should be suspended from the practice of law for six (6) months. The Court’s Ruling We agree with the IBP. Respondent’s Administrative Liability

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Rule 12.03, Canon 12 of the Code of Professional Responsibility, requires all the members of the bar to observe the following: “A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.” Expressly stated is the requirement to show good and sufficient cause for requests of extension of time to file appellate briefs. Section 12 of Rule 44 of the Rules of Court provides that an extension of time for the filing of a brief shall not be allowed, except when there is good and sufficient cause, and only when the motion is filed before the expiration of the extension sought. From time to time, a request for extension becomes necessary when an advocate needs more time to study the client’s position. Generally, such request is addressed to the sound discretion of the court. Lawyers who, for one reason or another, decide to dispense with the filing of the required pleading, should promptly manifest this intent to the court. It is necessary for them to do so in order to prevent delay in the disposition of the case. Those who file motions for extension in bad faith misuse the legal process, obstruct justice,[20] and thus become liable to disciplinary action.[21] A lawyer who requests an extension must do so in good faith and with a genuine intent to file the required pleading within the extended period. In granting the request, the court acts on the presumption that the applicant has a justifiable reason for failing to comply with the period allowed. Without this implied trust, the motion for extension will be deemed to be a mere ruse to delay or thwart the appealed decision. The motion will thus be regarded as a means of preventing the judgment from attaining finality and execution and of enabling the movant to trifle with procedure and mock the administration of justice. In this case, respondent twice moved for an extension of time to file the required appellant’s brief. In his first Motion, he alleged that he had a hectic daily schedule of hearings and other pressures from work. In his next Motion, he claimed he had acute arthritis and asthmatic attacks. The granting of his two Motions implied that he had been given ample time either to finish researching his case or to withdraw his appeal. Yet, he still failed to file the required brief. In its June 25, 1998 Resolution, the CA noted that the appellee’s Motion to Dismiss the appeal was filed only after forty (40) days from the expiration of the last extension. Respondent claims that he never planted false hopes in the mind of complainant. Upon receiving the Decision in Civil Case No. U-6061, he purportedly advised her that her chances of winning in the appellate court were slim, because the ownership of the disputed land had already been adjudicated to the other party in Civil Case No. U-4601. He avers that he tried to persuade her to accept her defeat “like a good soldier.” We are not persuaded. If, indeed, respondent failed to convince complainant to drop her appeal, he should have just withdrawn his appearance. Based on his arguments in his Opposition to the Motion for Execution and Demolition, however, we do not believe that he even tried to convince her to withdraw the appeal. We are inclined to believe that this excuse was merely an afterthought to justify his negligence. Moreover, respondent claims that after filing the Motions for Extension, he surmised that the appeal would be useless, because he could not show sufficient cause to reverse the Decision. This justification is even more inexcusable. Respondent, should have checked first if there was a good ground to support the appeal. If there was none, he should have been forthright in his evaluation of the case. Lawyers should fully familiarize themselves with the causes of their clients before advising the latter on the soundness of litigating. If they find that the intended suit is devoid of merit or that the pending action is defenseless,[22] they should promptly inform and dissuade their clients accordingly. Assuming that respondent indeed tried to persuade complainant to abandon the appeal, he should have manifested to the CA that he had decided not to file the appellant’s brief anymore, instead of just letting the period lapse. His contention that he could not find the appropriate jurisprudence to support her case is too flimsy to be credible. A competent and ethical lawyer would have at least tried to persuade the CA with reason and logic. Respondent alleges that complainant knew of the dismissal of the appeal. That she had referred the Motion for Execution and Demolition to him for comment allegedly showed that she had already given up her desire to pursue her appeal. He pointed out that if she had indeed blamed his inexcusable negligence for its dismissal, then she would not have referred that Motion to him. We are not convinced. Anyone would have done what complainant did, because no one else would know the case better than one’s

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lawyer. Contrary to respondent’s allegation, we do not read any intention on her part to withdraw the appeal, which showed that she wanted to oppose the execution of the Decision. We concur in the IBP’s finding that respondent was negligent in the performance of his duties as counsel for complainant, and that his negligence was inexcusable. If indeed it was true that he found her case to be futile, he should have just withdrawn the appeal, instead of filing several Motions for extension to file the appellant’s brief. Candor in all their dealings is the very essence of a practitioner’s honorable membership in the legal profession.[23] 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. Canon 18.03 of the Code requires that “a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith renders him liable.” WHEREFORE, Atty. Arsenio A. Merrera is hereby found guilty of violating Canons 12 and 18 of the Canons of Professional Responsibility and is SUSPENDED from the practice of law for a period of six (6) months from receipt of this Decision. This Decision is immediately executory. SO ORDERED. RURAL BANK OF CALAPE,

A.C. No. 5736

INC. (RBCI) BOHOL, Complainant,

Present:

CARPIO, J., Chairperson, NACHURA, - versus -

PERALTA, ABAD, and PEREZ,* JJ.

ATTY. JAMES BENEDICT FLORIDO,

Promulgated:

Respondent. June 18, 2010 x--------------------------------------------------x

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DECISION

CARPIO, J.:

The Case

This is a complaint for disbarment filed by the members of the Board of Directors[1] of the Rural Bank of Calape, Inc. (RBCI) Bohol against respondent Atty. James Benedict Florido (respondent) for “acts constituting grave coercion and threats when he, as counsel for the minority stockholders of RBCI, led his clients in physically taking over the management and operation of the bank through force, violence and intimidation.”

The Facts

On 18 April 2002, RBCI filed a complaint for disbarment against respondent.[2] RBCI alleged that respondent violated his oath and the Code of Professional Responsibility (Code).

According to RBCI, on 1 April 2002, respondent and his clients,

Dr. Domeciano Nazareno, Dr. Remedios Relampagos, Dr.

Manuel Relampagos, and Felix Rengel (Nazareno-Relampagos group), through force and intimidation, with the use of armed men, forcibly took over the management and the premises of RBCI. They also forcibly evicted Cirilo A. Garay (Garay), the bank manager, destroyed the bank’s vault, and installed their own staff to run the bank.

In his comment, respondent denied RBCI’s allegations. Respondent explained that he acted in accordance with the authority granted upon him by the Nazareno-Relampagos group, the lawfully and validly elected Board of Directors of RBCI. Respondent said he was merely effecting a lawful and valid change of management. Respondent alleged that a termination notice was sent to Garay but he refused to comply. On 1 April 2002, to ensure a smooth transition of managerial operations, respondent and the Nazareno-Relampagos group went to the bank to ask Garay to step down. However, Garay reacted violently and grappled with the security guard’s long firearm. Respondent then directed the security guards to prevent entry into the bank premises of individuals who had no transaction with the bank. Respondent, through the orders of the Nazareno-Relampagos group, also changed the locks of the bank’s vault.

Respondent added that the criminal complaint for malicious mischief filed against him by RBCI was already dismissed; while the complaint for grave coercion was ordered suspended because of the existence of a prejudicial question. Respondent said that the disbarment complaint was filed against him in retaliation for the administrative cases he filed against RBCI’s counsel and the trial court

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judges of Bohol.

Moreover, respondent claimed that RBCI failed to present any evidence to prove their allegations. Respondent added that the affidavits attached to the complaint were never identified, affirmed, or confirmed by the affiants and that none of the documentary exhibits were originals or certified true copies.

The Ruling of the IBP

On 28 September 2005, IBP Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid, Jr.) submitted his report and declared that respondent failed to live up to the exacting standards expected of him as vanguard of law and justice. [3] Commissioner Villadolid, Jr. recommended the imposition on respondent of a penalty of suspension from the practice of law for six months to one year with a warning that the repetition of similar conduct in the future will warrant a more severe penalty.

According to Commissioner Villadolid, Jr., respondent knew or ought to have known that his clients could not just forcibly take over the management and premises of RBCI without a valid court order. Commissioner Villadolid, Jr. noted that the right to manage and gain majority control over RBCI was one of the issues pending before the trial court in Civil Case No. 6628. Commissioner Villadolid, Jr. said that respondent had no legal basis to implement the take over of RBCI and that it was a “naked power grab without any semblance of legality whatsoever.”

Commissioner Villadolid, Jr. added that the administrative complaint against respondent before the IBP is independent of the dismissal and suspension of the criminal cases against respondent. Commissioner Villadolid, Jr. also noted that RBCI complied with the IBP Rules of Procedure when they filed a verified complaint and submitted duly notarized affidavits. Moreover, both RBCI and respondent agreed to dispense with the mandatory conference hearing and, instead, simultaneously submit their position papers.

On 20 March 2006, the IBP Board of Governors issued Resolution No. XVII-2006-120 which declared that respondent dismally failed to live up to the exacting standards of the law profession and suspended respondent from the practice of law for one year with a warning that repetition of similar conduct will warrant a more severe penalty.[4]

On 5 July 2006, respondent filed a motion for reconsideration. In its 11 December 2008 Resolution, the IBP denied respondent’s motion.[5]

The Ruling of the Court

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We affirm the IBP Board of Governors’ resolution.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.[6] Likewise, it is the lawyer’s duty to promote respect for the law and legal processes and to abstain from activities aimed at defiance of the law or lessening confidence in the legal system.[7]

Canon 19 of the Code provides that a lawyer shall represent his client with zeal within the bounds of the law. For this reason, Rule 15.07 of the Code requires a lawyer to impress upon his client compliance with the law and principles of fairness. A lawyer must employ only fair and honest means to attain the lawful objectives of his client. [8] It is his duty to counsel his clients to use peaceful and lawful methods in seeking justice and refrain from doing an intentional wrong to their adversaries.[9]

We agree with Commissioner Villadolid, Jr.’s conclusion:

Lawyers are indispensable instruments of justice and peace. Upon taking their professional oath, they become guardians of truth and the rule of law. Verily, when they appear before a tribunal, they act not merely as representatives of a party but, first and foremost, as officers of the court. Thus, their duty to protect their clients’ interests is secondary to their obligation to assist in the speedy and efficient administration of justice. While they are obliged to present every available legal remedy or defense, their fidelity to their clients must always be made within the parameters of law and ethics, never at the expense of truth, the law, and the fair administration of justice.[10] A lawyer’s duty is not to his client but to the administration of justice. To that end, his client’s success is wholly subordinate. His conduct ought to and must always be scrupulously observant of the law and ethics.[11] Any means, not honorable, fair and honest which is resorted to by the lawyer, even in the pursuit of his devotion to his client’s cause, is condemnable and unethical.[12]

WHEREFORE, we find respondent Atty. James Benedict Florido GUILTY of violating Canon 19 and Rules 1.02 and 15.07 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent from the practice of law for one year 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 attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and in all courts in the country for their information and guidance.

SO ORDERED.

REYNARIA BARCENAS,

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Complainant,

A.C. No. 8159

(formerly CBD 05-1452)

Present:

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, - versus -

VELASCO JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., MENDOZA and PEREZ, JJ.

ATTY. ANORLITO A. ALVERO, Respondent.

Promulgated: April 23, 2010

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

DECISION

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PERALTA, J.:

Before us is a Complaint[1] dated May 17, 2005 for disciplinary action against respondent Atty. Anorlito A. Alvero filed by Reynaria Barcenas with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD), docketed as CBD Case No. 05-1452, now Administrative Case (A.C.) No. 8159. The facts as culled from the records are as follows: On May 7, 2004, Barcenas, through her employee Rodolfo San Antonio (San Antonio), entrusted to Atty. Alvero the amount of P300,000.00, which the latter was supposed to give to a certain Amanda Gasta to redeem the rights of his deceased father as tenant of a ricefield located in Barangay San Benito, Victoria, Laguna. The receipt of the money was evidenced by an acknowledgment receipt[2] dated May 7, 2004. In the said receipt, Atty. Alvero said that he would deposit the money in court because Amanda Gasta refused to accept the same.[3] Later, Barcenas found out that Atty. Alvero was losing a lot of money in cockfights. To check if the money they gave Atty. Alvero was still intact, Barcenas pretended to borrow P80,000.00 from the P300,000.00 and promised to return the amount when needed or as soon as the case was set for hearing. However, Atty. Alvero allegedly replied, “Akala nyo ba ay madali kunin ang pera pag nasa korte na?” Subsequently, Barcenas discovered that Atty. Alvero did not deposit the money in court, but instead converted and used the same for his personal needs. In his letters dated August 18, 2004[4] and August 25, 2004,[5] Atty. Atty. Alvero admitted the receipt of the P300,000.00 and promised to return the money. The pertinent portions of said letters are quoted as follows: Dahil sa kagustuhan ng iyong amo na maibalik ko ang perang tinanggap ko sa iyo, lumakad ako agad at pilit kong kinukuha kahit iyon man lang na hiniram sa akin na P80,000.00 pero hindi karakapraka ang lumikom ng gayong halaga. Pero tiniyak sa akin na sa Martes, ika-24 ng buwan ay ibibigay sa akin. Bukas ay tutungo ako sa amin upang lumikom pa ng karagdagang halaga upang maisauli ko ang buong P300,000.00. Nakikiusap ako sa iyo dahil sa ikaw ang nagbigay sa akin ng pera na bigyan mo ako ng kaunting panahon upang malikom ko ang pera na ipinagkatiwala mo sa akin, hanggang ika-25 ng Agosto, 2004. x x x”[6]

Maya-mayang alas nuwebe (9:00) titingnan ang lupang aking ipinagbibili ng Dalawang Milyon. Gustong-gusto ng bibili gusto lang makita ang lupa dahil malayo, nasa Cavinti. Kung ok na sa bibili pinakamatagal na ang Friday ang bayaran.

Iyong aking sinisingil na isang P344,000.00 at isang P258,000.00 na utang ng taga-Liliw ay darating sa akin ngayong umaga bago mag alas otso. Kung maydala ng pambayad kahit magkano ay ibibigay ko sa iyo ngayong hapon.

xxxx

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Lahat ng pagkakaperahan ko ay aking ginagawa, pati anak ko ay tinawagan ko na. Pakihintay muna lang ng kauting panahon pa, hindi matatapos ang linggong ito, tapos ang problema ko sa iyo. Pasensiya ka na.”[7]

However, as of the filing of the instant complaint, despite repeated demands, Atty. Alvero failed to return the same. Thus, Barcenas prayed that Atty. Alvero be disbarred for being a disgrace to the legal profession. On March 30, 2005, the IBP-CBD ordered Atty. Alvero to submit his Answer to the complaint.[8] In compliance, in his Answer[9] dated April 18, 2005, Atty. Alvero claimed that he did not know Barcenas prior to the filing of the instant complaint nor did he know that San Antonio was an employee of Barcenas. He alleged that he came to know Barcenas only when the latter went to him to borrow P60,000.00 “from the amount entrusted to Rodolfo San Antonio” who entrusted to respondent. At that time, Atty. Alvero claimed that San Antonio was reluctant to grant the request because it might jeopardize the main and principal cause of action of the Department of Agrarian Reform Adjudication Board (DARAB) case. Atty. Alvero, however, admitted that he received an amount of P300,000.00 from San Antonio, though he claimed that said money was the principal cause of action in the reconveyance action.[10] Atty. Alvero stressed that there was no lawyer-client relationship between him and Barcenas. He, however, insisted that the lawyerclient relationship between him and San Antonio still subsisted as his service was never severed by the latter. He further emphasized that he had not breached the trust of his client, since he had, in fact, manifested his willingness to return the said amount as long as his lawyerclient relationship with San Antonio subsisted. Finally, Atty. Alvero prayed that the instant complaint be dismissed. On June 20, 2005, the IBP-CBD notified the parties to appear for the mandatory conference.[11] Meanwhile, in a separate Affidavit[12] dated September 19, 2005, San Antonio narrated that he indeed sought Atty. Alvero’s professional services concerning an agricultural land dispute. He claimed that Atty. Alvero made him believe that he needed to provide an amount of P300,000.00 in order to file his complaint, as the same would be deposited in court. San Antonio quoted Atty. Alvero as saying: “Hindi pwedeng hindi kasabay ang pera sa pagpa-file ng papel dahil tubusan yan, kung sakaling ipatubos ay nasa korte na ang pera.” Believing that it was the truth, San Antonio was forced to borrow money from Barcenas in the amount of P300,000.00. Subsequently, San Antonio gave the said amount to Atty. Alvero, in addition to the professional fees, as shown by an acknowledgment receipt.[13] San Antonio further corroborated Barcenas’ allegation that they tried to borrow P80,000.00 from the P300,000.00 they gave to Atty. Alvero after they found out that the latter lost a big amount of money in cockfighting. He reiterated that Atty. Alvero declined and stated, “Akala nyo ba ay madali kunin ang pera pag nasa korte na.” Later on, they found out that Atty. Atty. Alvero lied to them since the money was never deposited in court but was instead used for his personal needs. For several times, Atty. Alvero promised to return the money to them, but consistently failed to do so. San Antonio submitted Atty. Atty. Alvero’s letters dated August 18, 2004[14] and August 25, 2004[15] showing the latter’s promises to return the amount of P300,000.00.

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During the mandatory conference, Atty. Alvero failed to attend despite notice. Thus, he was deemed to have waived his right to participate in the mandatory conference. In its Report and Recommendation dated May 21, 2008, the IBP-CBD recommended that Atty. Alvero be suspended from the practice of law for a period of one (1) year for gross misconduct. Atty. Alvero was, likewise, ordered to immediately account for and return the amount of P300,000.00 to Barcenas and/or Rodolfo San Antonio. The pertinent portion thereof reads: The record does not show and no evidence was presented by respondent to prove that the amount of P300,000 which was entrusted to him was already returned to complainant or Rodolfo San Antonio, by way of justifying his non-return of the money, respondent claims in his Answer that the P300,000 “was the source of the principal cause of action of the petitioner, Rodolfo San Antonio, in the above-cited DARAB Case No. R-0403-0011-04 as shown by a copy of the Amended Petition, copy of which is hereto attached as Annex “1” and made an integral part hereof.

A review of Annex 1, which in the Amended Petition dated October 31, 2004 and filed on November 3, 2004, will show that the Petitioner Rodolfo San Antonio is praying that he be allowed to cultivate the land after the P300,000 is consigned by Petitioner to the Honorable Adjudication Board. Up to the time of the filing of the instant complaint, no such deposit or consignment took place and no evidence was presented that respondent deposited the amount in court.

The fact is respondent promised to return the amount (Annex “B” and “C” of the Complaint), but he failed to do so. The failure therefore of respondent to account for and return the amount of P300,000 entrusted or given to him by his client constitute gross misconduct and would subject him to disciplinary action under the Code.[16]

In Notice of Resolution No. XVIII-2008-342 dated July 17, 2008, the IBP Board of Governors adopted and approved with modification as to penalty the Report and Recommendation of the IBP-CBD. Instead, it ordered that Atty. Alvero be suspended from the practice of law for two (2) years and, likewise, ordered him to account for and return the amount of P300,000.00 to complainants within thirty (30) days from receipt of notice. The Office of the Bar Confidant redocketed the instant case as a regular administrative complaint against Atty. Alvero and, subsequently, recommended that this Court issue an extended resolution for the final disposition of the case. We sustain the findings and recommendations of the IBP-CBD.

Undoubtedly, Atty. Alvero breached Rule 1.01 of Canon 1 and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional Responsibility, which read:

CANON 1.

A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESS.

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

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. 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. Rule 16.03. A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his unlawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

In the instant case, Atty. Alvero admitted to having received the amount of P300,000.00 from San Antonio, specifically for the purpose of depositing it in court. However, as found by the IBP-CBD, Atty. Alvero presented no evidence that he had indeed deposited the amount in or consigned it to the court. Neither was there any evidence that he had returned the amount to Barcenas or San Antonio.

From the records of the case, there is likewise a clear breach of lawyer-client relations. When a lawyer receives money from a client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client.[17] These, Atty. Alvero failed to do.

Jurisprudence dictates that a lawyer who obtains possession of the funds and properties of his client in the course of his professional employment shall deliver the same to his client (a) when they become due, or (b) upon demand. In the instant case, respondent failed to account for and return the P300,000.00 despite complainant’s repeated demands.[18]

Atty. Alvero cannot take refuge in his claim that there existed no attorney-client relationship between him and Barcenas. Even if it were true that no attorney-client relationship existed between them, case law has it that an attorney may be removed, or otherwise disciplined, not only for malpractice and dishonesty in the profession, but also for gross misconduct not connected with his professional duties, making him unfit for the office and unworthy of the privileges which his license and the law confer upon him.[19]

Atty. Alvero’s failure to immediately account for and return the money when due and upon demand violated the trust reposed in him, demonstrated his lack of integrity and moral soundness, and warranted the imposition of disciplinary action. It gave rise to the

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presumption that he converted the money for his own use, and this act constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession.[20] They constitute gross misconduct and gross unethical behavior for which he may be suspended, following Section 27, Rule 138 of the Rules of Court, which provides:

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 the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so. We come to the penalty imposable in this case.

In Small v. Banares,[21] the respondent was suspended for two years for violating Canon 16 of the Code of Professional Responsibility, particularly for failing to file a case for which the amount of P80,000.00 was given him by the client, and for failing to return the said amount upon demand. Considering that similar circumstances are attendant in this case, the Court finds the Resolution of the IBP imposing on respondent a two-year suspension to be in order. As a final note, we reiterate: the practice of law is not a right, but a privilege. It is granted only to those of good moral character. The Bar must maintain a high standard of honesty and fair dealing.[22] 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. Those who are unable or unwilling to comply with the responsibilities and meet the standards of the profession are unworthy of the privilege to practice law.[23]

WHEREFORE, Notice of Resolution No. XVIII-2008-342 dated July 17, 2008 of the IBP-CBD Board of Governors, which found respondent Atty. Anorlito A. Alvero GUILTY of gross misconduct, is AFFIRMED. He is hereby SUSPENDED for a period of two (2) years from the practice of law, effective upon the receipt of this Decision. He is warned that a repetition of the same or a similar act will be dealt with more severely.

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

This Decision shall be immediately executory.

SO ORDERED.

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A.C. No. 8253 March 15, 2011 (Formerly CBD Case No. 03-1067) ERLINDA R. TAROG, Complainant, vs. ATTY. ROMULO L. RICAFORT, Respondent. DECISION PER CURIAM: We resolve a complaint for disbarment for alleged grave misconduct brought against Atty. Romulo L. Ricafort for his failure to account for and to return the sums of money received from his clients for purposes of the civil action to recover their property from a foreclosing banking institution he was handling for them. The original complainant was Arnulfo A. Tarog, but his wife, Erlinda R. Tarog, substituted him upon his intervening death. Antecedents In 1992, the Tarogs sought the advice of Atty. Jaime L. Miralles regarding their bank-foreclosed property located in the Bicol Region. Atty. Miralles advised them to engage a Bicol-based attorney for that purpose. Thus, they went to see Atty. Ricafort accompanied by Vidal Miralles, their friend who was a brother of Atty. Miralles. 1 They ultimately engaged Atty. Ricafort as their attorney on account of his being well-known in the community, and being also the Dean of the College of Law of Aquinas University where their son was then studying. Having willingly accepted the engagement, Atty. Ricafort required the Tarogs to pay P7,000.00 as filing fee, which they gave to him. 2 He explained the importance of depositing P65,000.00 in court to counter the P60,000.00 deposited by Antonio Tee, the buyer of the foreclosed property. After they informed him that they had only P60,000.00, he required them to add some more amount (dagdagan niyo ng konti).3 To raise the P65,000.00 for the Tarogs, therefore, Vidal solicited a loan from one Sia with the guarantee of his brother Atty. Miralles. Sia issued a check in that amount in the name of Arnulfo. 4 On November 7, 1992, the Tarogs and Vidal went to the office of Atty. Ricafort to deliver the P65,000.00. When Arnulfo said that he had first to encash the check at the bank, Atty. Ricafort persuaded him to entrust the check to him instead so that he (Atty. Ricafort) would be the one to encash it and then deposit the amount in court. On that representation, Arnulfo handed the check to Atty. Ricafort. 5 After some time, the Tarogs visited Atty. Ricafort to verify the status of the consignation. Atty. Ricafort informed them that he had not deposited the amount in court, but in his own account. He promised to return the money, plus interest. Despite several inquiries about when the amount would be returned, however, the Tarogs received mere assurances from Atty. Ricafort that the money was in good hands. The Tarogs further claimed that the Regional Trial Court, Branch 52, in Sorsogon (RTC), where their complaint for annulment of sale was being heard, had required the parties to file their memoranda. Accordingly, they delivered P15,000.00 to Atty. Ricafort for that purpose, but he did not file the memorandum.6 When it became apparent to the Tarogs that Atty. Ricafort would not make good his promise of returning the P65,000.00, plus interest, Arnulfo demanded by his letter dated December 3, 2002 that Atty. Ricafort return the P65,000.00, plus interest, and the P15,000.00 paid for the filing of the memorandum.7 Yet, they did not receive any reply from Atty. Ricafort. In his defense, Atty. Ricafort denied that the P65,000.00 was intended to be deposited in court, insisting that the amount was payment for his legal services under a "package deal," that is, the amount included his acceptance fee, attorney’s fee, and appearance fees from the filing of the complaint for annulment of sale until judgment, but excluding appeal. He claimed that the fees were agreed upon after considering the value of the property, his skill and experience as a lawyer, the labor, time, and trouble involved, and his professional character and social standing; that at the time he delivered the check, Arnulfo read, understood, and agreed to the contents of the complaint, which did not mention anything about any consignation; 8 and that Arnulfo, being a retired school principal, was a learned person who would not have easily fallen for any scheme like the one they depicted against him. Findings of the IBP Commissioner

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Following his investigation, Commissioner Wilfredo E.J.E. Reyes of the Integrated Bar of the Philippines-Commission on Bar Discipline rendered his Report and Recommendation dated October 7, 2004, 9 in which he concluded that: It is respectfully recommended that respondent, Atty. Romulo L. Ricafort be DISBARRED and be ordered to return the amount of P65,000 and P15,000 which he got from his client. RESPECTFULLY SUBMITTED. Commissioner Reyes regarded the testimonies of Erlinda and Vidal more credible than the testimony of Atty. Ricafort, observing: Based on the said testimony, statements and actuations of complainant Erlinda Tarog and his collaborating witness, we find their statements to be credible. Atty. Ricafort in his testimony attempted to show that the amount of P65,000.00 was paid to him by the complainant as acceptance fee on a package deal basis and under said deal, he will answer the filing fee, attorney’s fees and other expenses incurred up to the time the judgment is rendered. He presented a transcript of stenographic notes wherein it was stated that complainant himself did not consign the money in court. The respondent admitted in his testimony that he did not have any retainer agreement nor any memorandum signed or any receipt which would prove that the amount of P65,000.00 was received as an acceptance fee for the handling of the case. Atty. Romulo Ricafort stated that there was no retainer agreement and that he issued only receipt because the late Arnulfo Tarog will not pay unless a receipt is issued. The Undersigned Commissioner asked the respondent "Basically you describe that thing that will happen in the litigation related to the payment of fees. But when you received that P65,000.00 did you not put anything there that you will describe the nature of legal work which you will undertake considering that you have considered this P65,000.00 as your attorney’s fees? And Atty. Ricafort stated: Yes I did. I do not know why they were not showing the receipt. That is a big amount, Your Honor. They demanded for me the receipt of P30,000.00 how much more with that P65,000.00. They demanded for the receipt of that P65,000.00 but I cannot explain the reason why…… During the clarificatory questioning, the Undersigned Commissioner also asked Atty. Ricafort why he did not answer the demand letter sent by Arnulfo Tarog and the proof of service of the said letter was presented by the complainant. Conveniently, Atty. Ricafort stated that he did not receive the letter and it was received by their helper who did not forward the letter to him. He also adopted the position that the complainant was demanding the P65,000.00 wherefore this case was filed. When confronted by the testimony of Mr. Vidal Miralles, the respondent Atty. Ricafort just denied the allegation that he received the P65,000.00 for deposit to the court. He also denied that Mr. Miralles has visited his residence for follow-up the reimbursement. The Undersigned Commissioner asked the respondent if he has personal animosity with Arnuldo Tarog, Erlinda Tarog and Vidal Miralles and if there are any reason why this case was filed against him. In his answer the respondent stated that we have been very good friends for the past ten (10) years and he said that in fact he was surprised when the complaint was filed against him and they even attached the decision of the Supreme Court for his suspension and maybe they are using this case to be able to collect from him. The main defense of the respondent is that the complainant in this case testified that the total amount to redeem his property is P240,000.00 and when asked whether he consigned the money to the court to redeem the property he answered in the negative. The alleged payment of P65,000.00 was made prior to the said testimony sometime in 1992. Hence, it was stated on complainant’s affidavit that on November 7, 1992, prior to filing said complaint I had given him the sum of Sixty Five Thousand Pesos to be deposited to the Regional Trial Court representing redemption money of the Real Estate Mortgage. The amount of P65,000.00 is very much close to the amount of the principal obligation of the complainant and it is not surprising for a non-lawyer to hold on to the belief that with the filing of the case for annulment of foreclosure his case would be strengthened by making a deposit in court hence, the motivation to produce the deposit was logical and natural insofar as the complainant is concerned. The testimony of the complainant in court that the bank needed P240,000.00 for the redemption of the property will have no bearing on the actuation of the complainant who has been required to deposit P65,000.00 by his lawyer. The Undersigned Commission has no alternative but to believe in the credibility and truthfulness of complainant’s narration that of Mrs. Erlinda Tarog and Vidal Miralles. 10 Commissioner Reyes concluded that Atty. Ricafort violated Canon 15, and Rules 16.01, 16.02 and 16.03 of Canon 16 of the Code of Professional Responsibility by taking advantage of the vulnerability of his clients and by being dishonest in his dealings with them by

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refusing to return the amount of P65,000.00 to them. On November 4, 2004, the IBP Board of Governors adopted Resolution No. XVI-2004-473, 11 resolving to return the matter to Commissioner Reyes for a clarification of whether or not there was evidence to support the claim that the P65,000.00 had been in payment of attorney’s fees and other expenses. On October 11, 2005, Commissioner Reyes issued a second Report and Recommendation, 12 in which he declared that Atty. Ricafort did not present any retainer agreement or receipt to prove that the amount of P65,000.00 had been part of his attorney’s fees; that Atty. Ricafort had willfully ignored the demand of Arnulfo by not replying to the demand letter; that, instead, Atty. Ricafort had insisted that the househelp who had received the demand letter had not given it to him; and that in his (Commissioner Reyes) presence, Atty. Ricafort had also promised to the complainant that he would settle his liability, but Atty. Ricafort did not make good his promise despite several resettings to allow him to settle his obligation. Action of IBP Board of Governors Through Resolution No. XVII-2006-569,13 therefore, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner Reyes and recommended the disbarment of Atty. Ricafort and the order for him to return the amounts of P65,000.00 and P15,000.00 to Erlinda, viz: 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 as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that Respondent has taken advantage of his client [sic] vulnerability and has been dishonest with his dealings to his client, Atty. Romulo L. Ricafort is hereby DISBARRED and Ordered to Return the amount of P65,000 and P15,000 to complainant. Atty. Ricafort moved for reconsideration, 14 maintaining that a retainer agreement was immaterial because he had affirmed having received the P65,000.00 and having issued a receipt for the amount; that he had not kept the receipt because "the practice of lawyers in most instances is that receipt is issued without duplicate as it behooves upon the client to demand for a receipt;" 15 that considering that the Tarogs had produced a photocopy of the receipt he had issued for the P30,000.00 in connection with their appeal, it followed that a similar receipt for attorney’s fees had been made at the time when the case had been about to be filed in the RTC; that the testimonies of Erlinda and Vidal were inconsistent with Arnulfo’s affidavit; and that he did not receive Arnulfo’s demand letter, which was received by one Gemma Agnote (the name printed on the registry receipt), whom he did not at all know. Acting on Atty. Ricafort’s motion for reconsideration, the IBP Board of Governors downgraded the penalty from disbarment to indefinite suspension,16 thus: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED the Recommendation of the Board of Governors First Division of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration is hereby DENIED with modification of Resolution No. XVII-2006-509 of the Board of Governors dated 18 November 2006, that in lieu of the Disbarment of Atty. Romulo Ricafort, he is INDEFINITELY SUSPENDED from the practice of law and Ordered to return the amount of P65,000 and P15,000 to complainant. Atty. Ricafort filed a second motion for reconsideration, 17 assailing the resolution of the IBP Board of Governors for violating Section 12, Rule 139-B of the Rules of Court requiring the decision of the IBP Board of Governors to be in writing and to clearly and distinctly state the facts and reasons on which the decision was based. Hence, the administrative case is now before the Court for resolution. Ruling We affirm the findings of the Commissioner Reyes, because they were supported by substantial evidence. However, we impose the penalty of disbarment instead of the recommended penalty of indefinite suspension, considering that Atty. Ricafort committed a very serious offense that was aggravated by his having been previously administratively sanctioned for a similar offense on the occasion of which he was warned against committing a similar offense.

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A. Version of the complainants was more credible than version of Atty. Ricafort Atty. Ricafort admitted receiving the P65,000.00 from the Tarogs. Even so, we have two versions about the transaction. On the one hand, the Tarogs insisted that the amount was to be consigned in court for purposes of their civil case; on the other hand, Atty. Ricafort claimed that the amount was for his fees under a "package deal" arrangement. Commissioner Reyes considered the Tarogs’ version more credible. We hold that Commissioner Reyes’ appreciation of the facts was correct and in accord with human experience. Firstly, it is easier to believe that Atty. Ricafort persuaded the Tarogs on the need for that amount to be deposited in court for purposes of their civil case. Being non-lawyers, they had no idea about the requirement for them to consign any amount in court, due to the substantive and procedural implications of such requirement being ordinarily known only to lawyers. Their ready and full reliance on Atty. Ricafort’s representations about the requirement to consign that amount in court was entirely understandable in view of their awareness of Atty. Ricafort’s standing in the legal community of the place. Besides, as Commissioner Reyes observed, it was not farfetched for the Tarogs to believe that an amount close in value to their original obligation was necessary to be deposited in court to boost their chances of recovering their property. Secondly, Atty. Ricafort’s denial of receipt of Arnulfo’s demand letter was incredible. He already initially admitted receiving the letter through a househelp.18 His denial came only subsequently and for the first time through his motion for reconsideration dated December 30, 2006,19 in which he completely turned about to declare that the Gemma Agnote who had received the letter was unknown to him. 20 Expectedly, Commissioner Reyes disregarded his denial, because not only was the denial an apparently belated afterthought, it was even contradicted by his earlier admission of receipt. In any event, the fact that Gemma Agnote was even the househelp whom Atty. Ricafort had adverted to becomes very plausible under the established circumstances. Thirdly, Atty. Ricafort explained that he had no copies of the receipts for the P65,000.00 and P15,000.00 issued to the Tarogs because "the practice of lawyers in most instances is that receipt is issued without duplicate as it behooves upon the client to demand for a receipt." 21 But such explanation does not persuade us. Ethical and practical considerations made it both natural and imperative for him to issue receipts, even if not demanded, and to keep copies of the receipts for his own records. He was all too aware that he was accountable for the moneys entrusted to him by the clients, and that his only means of ensuring accountability was by issuing and keeping receipts. Rule 16.01 of the Code of Professional Responsibility expressly enjoins such accountability, viz: Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client. Definitely, Atty. Ricafort had a highly fiduciary and confidential relation with the Tarogs. As such, he was burdened with the legal duty to promptly account for all the funds received from or held by him for them. 22 And, fourthly, to buttress his denial that the P65,000.00 was not intended for deposit in court, Atty. Ricafort insisted that Arnulfo did not object to the omission from the complaint in the civil action of any mention of consignation. However, the complaint that he himself had written and filed for the Tarogs contradicted his insistence, specifically in its paragraph 16, which averred the plaintiffs’ (i.e., Tarogs) readiness and willingness to deposit the amount of P69,345.00 (inclusive of the redemption price and interest) in court, thus: 16. And to show willingness and sincerity of the plaintiffs, they are ready and willing to deposit the amount of P69,345.00 as redemption price plus reasonable accrued interests, if there are any; 23 Nor could the Tarogs have conjured or invented the need for consignation. The consignation was a notion that could have emanated only from him as their lawyer. In fact, Erlinda recalled while testifying before the IBP Commission on Bar Discipline that they had brought to their meeting with Atty. Ricafort only P60,000.00 for the consignation, but that Atty. Ricafort had to instruct them to raise the amount. The excerpt of her pertinent testimony follows: Comm. Reyes: Madam Witness, in this affidavit you stated that your late husband and Mr. Vidal Miralles went to the office of Atty. Ricafort to advise the latter that we already had the sum of P65,000.00 in the form of check, how did you come to know this fact? Witness: Paano po ba sabi nya na magdeposit ng P65,000.00 tapos may P60,000.00 kami sabi niya dagdagan niyo ng konti.

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Comm. Reyes: Kinausap ba niya kayo? Witness: Nandoon po ako. Comm. Reyes: Where you present when the check was given? Witness: Yes. Comm. Reyes: So, alam niyo, nakita niyo na binigay yong P65,000.00 na tseke? Witness: Opo. Comm. Reyes: Alam niyo ba kung ano ang nangyari doon sa tseke na idiniposit? Witness: Noong una sinabi niya sa amin na ididiposit niya sa court. Comm. Reyes: Nalaman niyo ba na hindi naman pala idiniposit sa court? Witness: Opo. Comm. Reyes: Kailan niyo nalaman? Witness: Nagsabi siya tapos sinabi pa niya na yong interest sa bank ay ibinigay niya sa amin ang sabi naming salamat. 24 B. Atty. Ricafort’s acts and actuations constituted serious breach of his fiduciary duties as an attorney The Code of Professional Responsibility demands the utmost degree of fidelity and good faith in dealing with the moneys entrusted to lawyers because of their fiduciary relationship.25 In particular, Rule 16.01 of the Code of Professional Responsibility states: Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client. Undoubtedly, Atty. Ricafort was required to hold in trust any money and property of his clients that came into his possession, 26 and he needed to be always mindful of the trust and confidence his clients reposed in him. 27 Thus, having obtained the funds from the Tarogs in the course of his professional employment, he had the obligation to deliver such funds to his clients (a) when they became due, or (b) upon demand.281avvphi1 Furthermore, Rule 16.02 of the Code of Professional Responsibility, imposes on an attorney the positive obligation to keep all funds of his client separate and apart from his own and from those of others kept by him, to wit: 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. Atty. Ricafort’s act of obtaining P65,000.00 and P15,000.00 from the Tarogs under the respective pretexts that the amount would be deposited in court and that he would prepare and file the memorandum for the Tarogs erected a responsibility to account for and to use the amounts in accordance with the particular purposes intended. For him to deposit the amount of P65,000.00 in his personal account without the consent of the Tarogs and not return it upon demand, and for him to fail to file the memorandum and yet not return the amount of P15,000.00 upon demand constituted a serious breach of his fiduciary duties as their attorney. He reneged on his duty to render an accounting to his clients showing that he had spent the amounts for the particular purposes intended. 29 He was thereby presumed to have misappropriated the moneys for his own use to the prejudice of his clients and in violation of the clients’ trust reposed in him. 30 He could not escape liability, for upon failing to use the moneys for the purposes intended, he should have immediately returned the moneys to his clients.31 Atty. Ricafort’s plain abuse of the confidence reposed in him by his clients rendered him liable for violation of Canon 16, 32 particularly Rule 16.01, supra, and Canon 17, 33 all of the Code of Professional Responsibility. His acts and actuations constituted a gross violation of general morality and of professional ethics that impaired public confidence in the legal profession and deserved punishment. 34 Without hesitation, therefore, we consider Atty. Ricafort’s acts and conduct as gross misconduct, a serious charge under Rule 140 of the Rules of Court, to wit:

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Section 8. Serious charges. – Serious charges include: xxx 3. Gross misconduct constituting violations of the Code of Judicial Conduct; xxx That this offense was not the first charged and decided against Atty. Ricafort aggravated his liability. In Nuñez v. Ricafort,35 decided in 2002, the Court found him to have violated Rules 1.01 36 of Canon 1 and Rule 12.0337 and Rule 12.0438 of Canon 12 of the Code of Professional Responsibility in relation to his failure to turn over the proceeds of the sale of realty to the complainant (who had authorized him to sell the realty in her behalf). His failure to turn over the proceeds compelled the complainant to commence in the RTC a civil action to recover the proceeds against him and his wife. The Court meted on him the penalty of indefinite suspension, and warned him against the commission of similar acts, stating: We concur with the findings of the Investigating Commissioner, as adopted and approved by the Board of Governors of the IBP, that respondent Atty. Romulo Ricafort is guilty of grave misconduct in his dealings with complainant. Indeed, the record shows respondent’s grave misconduct and notorious dishonesty. There is no need to stretch one’s imagination to arrive at an inevitable conclusion that respondent gravely abused the confidence that complainant reposed in him and committed dishonesty when he did not turn over the proceeds of the sale of her property. Worse, with palpable bad faith, he compelled the complainant to go to court for the recovery of the proceeds of the sale and, in the process, to spend money, time and energy therefor. Then, despite his deliberate failure to answer the complaint resulting in his having been declared in default, he appealed from the judgment to the Court of Appeals. Again, bad faith attended such a step because he did not pay the docket fee despite notice. Needless to state, respondent wanted to prolong the travails and agony of the complainant and to enjoy the fruits of what rightfully belongs to the latter. Unsatisfied with what he had already unjustly and unlawfully done to complainant, respondent issued checks to satisfy the alias writ of execution. But, remaining unrepentant of what he had done and in continued pursuit of a clearly malicious plan not to pay complainant of what had been validly and lawfully adjudged by the court against him, respondent closed the account against which the checks were drawn. There was deceit in this. Respondent never had the intention of paying his obligation as proved by the fact that despite the criminal cases for violation of B.P. Blg. 22, he did not pay the obligation. All the foregoing constituted grave and gross misconduct in blatant violation of Rule 1.01 of Canon 1 of the Code of Professional Responsibility which provides: A lawyer shall not engage in unlawful, dishonest and immoral or deceitful conduct. Respondent’s claim of good faith in closing his account because he thought complainant has already encashed all checks is preposterous. The account was closed on or before 26 February 1996. He knew that there were still other checks due on 29 February 1996 and 15 March 1996 which could not be encashed before their maturity dates. By violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility, respondent diminished public confidence in the law and the lawyers (Busiños v. Ricafort, 283 SCRA 407 [1997]; Ducat v. Villalon, 337 SCRA 622 [2000]). Instead of promoting such confidence and respect, he miserably failed to live up to the standards of the legal profession (Gonato v. Adaza, 328 SCRA 694 [2000]; Ducat v. Villalon, supra). Respondent’s act of issuing bad checks in satisfaction of the alias writ of execution for money judgment rendered by the trial court was a clear attempt to defeat the ends of justice. His failure to make good the checks despite demands and the criminal cases for violation of B.P. Blg. 22 showed his continued defiance of judicial processes, which he, as an officer of the court, was under continuing duty to uphold.39 Bearing in mind his administrative record, and considering that the penalty for violation of Canon 16 ranges from suspension for six months,40 to suspension for one year,41 to suspension for two years,42 depending on the amount involved and the severity of the lawyer’s misconduct, we rule that disbarment is the commensurate punishment for Atty. Ricafort, who has shown no reformation in his handling of trust funds for his clients.

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WHEREFORE, we find and declare Atty. Romulo L. Ricafort guilty of a violation of Canon 16, Rule 16.01 and Canon 17 of the Code of Professional Responsibility and, accordingly, disbar him. The Bar Confidant is directed to strike out his name from the Roll of Attorneys. Atty. Ricafort is ordered to return to Erlinda R. Tarog the sums of P65,000.00 and P15,000.00, plus interest of six percent per annum reckoned from the demand made on December 3, 2002, within twenty days from notice. This decision is effective immediately. Let a copy of this decision be furnished to the Office of the Court Administrator for circulation to all courts, and to the Integrated Bar of the Philippines, for its reference. SO ORDERED. [A.C. No. 5041. November 23, 2004] SALVADOR G. VILLANUEVA, complainant, vs. ATTY. RAMON F. ISHIWATA, respondent. DECISION SANDOVAL-GUTIERREZ, J.: Complainant Salvador G. Villanueva seeks the disbarment of Atty. Ramon F. Ishiwata, herein respondent, for gross professional misconduct. In his amended complaint filed with this Court on April 12, 1999,[1] complainant alleged that sometime in May, 1994, he hired respondent to handle his case, NLRC-NCR Case No. 00-05-03808-94[2] against J.T. Transport, Inc. for payment of his unpaid wages, separation pay, and other benefits. Due to insistence of respondent, complainant executed a Special Power of Attorney designating the former as his attorney-in-fact.[3] In the course of the proceedings at the NLRC, the parties entered into a compromise agreement whereby for a consideration of P225,000.00, complainant agreed to release J.T. Transport from all its obligations to him. As a result, respondent signed a “Quitclaim and Release” for and on behalf of complainant. The NLRC then considered NLRC-NCR Case No. 00-05-03808-94 closed and terminated. Sometime between June and August 1998, J.T. Transport delivered four (4) checks to respondent in the sum of P225,000.00 as payment of complainant’s claims. However, respondent gave complainant only P45,000.00 as “first installment,” without advising him that the settlement award had been paid in full. Subsequently, complainant learned that J.T. Transport had fully settled its obligations to him. Thus, he made repeated demands upon respondent to deliver to him the balance. But the latter refused to comply, prompting complainant to hire the services of a new lawyer who sent respondent a demand letter. Still, respondent refused to pay. In his comment on the complaint, respondent denied the charge. He alleged that it was actually one Zenaida Villanueva, claiming to be complainant’s wife, who actually engaged his services. Due to a serious ailment, he secured the services of another person to do research work for a contingent fee with complainant’s acquiescence. In fact, from the amount of P225,000.00, he paid that other person P33,000.00 with complainant’s knowledge. Respondent also alleged that since J.T. Transport paid in installments, the sums delivered to complainant were also in installments. Initially, complainant received P45,000.00. As the money came in, respondent paid complainant’s wife P90,000.00 in two installments, one in the sum of P11,000.00 and another in the amount of P79,000.00. However, the receipts she signed were misplaced by respondent’s secretary. Respondent deducted his 25% attorney’s fee or P56,250.00 from the award. According to his computation, all the payments are in the total sum of P224,250.00, leaving only P750.00 due and owing to complainant. On October 11, 1999, we resolved to refer the instant case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation within ninety (90) days from notice.[4] On July 7, 2004, the IBP Board of Governors submitted to this Court Resolution No. XVI-2004-225 dated April 16, 2004, adopting and approving the Report and Recommendation of the Investigating Commissioner. The latter found respondent guilty as charged and recommended that he be suspended from the practice of law for one (1) year; that he return the sums of P90,000.00 and P33,000.00 to

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complainant; and that his attorney’s fee in NLRC-NCR Case No. 00-05-03808-94 be reduced from 25% to 10% of the settlement award. We sustain the Resolution of the IBP Board of Governors. Canon 16 and Rules 16.01 to 16.03 of the Code of Professional Responsibility provides: “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. Rule 16.03 – A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements; giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.” Respondent violated the above provisions and should thus be penalized. Obviously, respondent’s failure to return the balance to complainant upon demand gave rise to the presumption that he misappropriated it in violation of the trust reposed on him. His act is indicative of lack of integrity and propriety. He was clinging to something not his and which he had no right. As found by the Investigating Commissioner, out of the settlement amount of P225,000.00, respondent gave complainant only P45,000.00. His claim that he gave complainant’s alleged wife the amount of P11,000.00 and P79,000.00 is not true. He could not show the corresponding receipts. In Gonato vs. Atty. Adaza,[5] we held that conversion by a lawyer of the funds entrusted to him is a gross violation of professional ethics and a betrayal of the public confidence in the legal profession. The relationship between an attorney and his client is highly fiduciary in nature.[6] Under his oath, a lawyer pledges himself not to delay any man for money and he is bound to conduct himself with good fidelity to his clients. A lawyer should thus refrain from any action whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client. Accordingly, any money collected for the client or other trust property coming into the lawyer’s possession should promptly be reported by him.[7] 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. A violation of the high standards of the legal profession subjects the erring lawyer to administrative sanctions by this Court.”[8] We agree with the holding of the Investigating Commissioner that since what respondent handled was merely a labor case, his attorney’s fee should not exceed 10%, the rate allowed under the Labor Code.[9] Accordingly, his legal fee should be reduced from P56,250.00 to P22,500.00 only. We likewise sustain the finding of the Investigating Commissioner that respondent should pay the complainant the following amounts: P225,000.00

-

Total amount received from J.T. Transport

Less: P22,500.00

-

Representing the allowable 10%

____________

-

attorney’s fees

P199,500.00

-

Amount due to complainant

-

Actual amount paid to

Less: P45,000.00 _____________ P154,500.00

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complainant -

Total balance which respondent

should pay complainant The IBP Board of Governors’ recommended penalty of one (1) year is in order. In a recent case[10] wherein respondent lawyer failed to deliver to his clients the sum of P236,000.00 awarded to them by the trial court, we imposed upon him suspension from the practice of law for one year. WHEREFORE, respondent Atty. Ramon F. Ishiwata is hereby declared guilty of violation of Canon 16 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for a period of one (1) year effective upon his receipt of a copy of this Decision, with a warning that a repetition of the same or similar acts will be dealt with more severely. He is ordered to restitute to complainant the sum of P154,500.00 from notice. Let copies of this Decision be furnished the Bar Confidant, the IBP, and the Court Administrator who shall circulate them to all courts, tribunals, and quasi-judicial agencies for their information and guidance. SO ORDERED. G.R. No. L-12905

February 26, 1959

ELENA PERALTA VDA. DE CAIÑA, ET AL., petitioners, vs. HON. GUSTAVO VICTORIANO, ET AL., respondents. A. B. Encarnacion and Associates for petitioners. Flaviano T. Dalisay, Jr. for respondents. BAUTISTA ANGELO, J.: This is a petition for certiorari seeking the annulment of an order of respondent judge dated July 10, 1957 directing petitioners to surrender to the Register of deeds of Rizal their owner's duplicate of Transfer Certificate of Title No. 51585 in order that the attorney's lien of their former counsel Flaviano T. Dalisay, Jr. may be annotated on the back thereof. Petitioners are the widow and children of the late Valeriana Caiña who was the owner of a parcel of land covered by Transfer Certificate of Title No. 21702. A portion of this property was transferred to one Gavina Cierte de Andal and as a result said title was cancelled and a new one issued in their names bearing No. 51585. Respondent Flaviano T. Dalisay, Jr. was the attorney of one of petitioners, Elena Peralta Vda. de Caiña, in an action for ejectment filed before the Justice of the Peace of Caloocan, Rizal, against one Ricardo Nabong, which was dismissed and appealed to the Court of First Instance of Rizal. In the latter court, the case was docketed as Civil Case No. 3875, and because of the non-appearance of defendant, the latter was declared in default and judgment was rendered in favor of plaintiff. This judgment became final and executory for lack of appeal. On June 26, 1957, respondent Dalisay filed a motion in the same ejectment case for annotation of his attorney's lien on the back of Transfer Certificate of Title No. 51585 claiming that, notwithstanding the services he had rendered to the widow and her children who were presented by him in said case, they have failed to pay him his attorney's fees which he fixed at P2,020. This motion was set for hearing and thereafter the same was granted in an order entered on July 10, 1957 wherein the court ordered petitioners to surrender their duplicate copy of said certificate in order that the annotation requested may be made. Upon receipt of a copy of this order, petitioners filed a motion for reconsideration alleging that they were never furnished with a copy of respondent's motion, nor notified of the date of its hearing, for which reason they were not able to appear to contest the same. This motion was opposed by respondent Dalisay who averred that petitioners were furnished with a copy of his motion by registered mail three days before the hearing as shown by the return card attached to his written opposition. And on August 27, 1957, the court denied the motion. Hence the present petition for certiorari. This issue to be determined is whether the attorney's lien of respondent Dalisay for services he had rendered in the ejectment case can be ordered annotated on the back of Transfer Certificate of Title No. 51585. An attorney's lien is of two kinds: one is called retaining alien and the other charging lien. The retaining lien is the right of the attorney to retain the funds, documents, and papers of his client which have lawfully come into his possession until his lawful fees and disbursements have been paid and to apply such funds to the satisfaction thereof. The charging lien is the right which the attorney has upon all judgments for the payment of money, and executions issued in pursuance of said judgments, which he has secured in litigation of his client (Section 33, Rule 127; Rustia vs. Abeto, 72 Phil., 133). Under this rule, this lien, whether retaining or charging, takes legal effect only from and

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after, but not before, notice of said lien has been entered in the record and served on the adverse party (Macondray & Company, Inc. vs. Jose, 66 Phil., 590; Menzi and Company vs. Bastida, 63 Phil., 16). It may therefore be seen that the right of a lawyer to insure the payment of his professional fee is either to retain the funds, documents, and papers of his client which may have lawfully come into his possession, or to enforce it upon any judgment for the payment of money he may secure in favor of his client. And it has been held that the retaining lien is dependent upon possession and does not attach to anything not in attorney's hands. The lien exists only so long as the attorney's retains possession ends (Rustia vs. Abeto, supra). In the instant case, the lien which respondent attorney tried to enforce for the satisfaction of his professional fee is charging in the sense that his purpose is to make of record his claim in order that it may be considered in the execution of the judgment that may be rendered in the case, and this he has already done. Thus, he had already caused a statement of his claim to be entered in the record of the ejectment case and that is all what the rule requires of him to do. Certainly, he cannot go any further, such as what he led the trial court to do, that is, to have his lien annotated on the back of the title of petitioners which is beyond the province of the court. The lien of respondent is not of a nature which attaches to the property in litigation but is at most a personal claim enforceable by a writ of execution. The respondent judge has therefore exceeded his authority in issuing the order subject of the present petition for certiorari. Petition is granted. The order of respondent judge dated July 10, 1957 is hereby set aside. Costs against respondent Flaviano T. Dalisay, Jr. [A.C. No. 5302. February 18, 2005] MARCIAL L. ABIERO, complainant, vs. ATTY. BERNARDO G. JUANINO, respondent. DECISION YNARES-SANTIAGO, J.: A lawyer owes fidelity to the cause of his client at all times, mindful of the trust and confidence reposed in him. He must always serve with competence and diligence, and never neglect a legal matter entrusted to him. An attorney should endeavor to keep his client informed of the status of his case and respond within a reasonable time to the latter’s request for information. Failure to comply with these abiding precepts of ethical conduct renders counsel liable for violating the canons of his profession. On July 20, 2000, an administrative complaint[1] was filed by Marcial L. Abiero charging respondent Atty. Bernardo G. Juanino with negligence in connection with a legal matter entrusted to him. It appears that complainant engaged the services of respondent of the law firm P.C. Nolasco and Associates as counsel de parte in NLRC NCR OCW Case No. 00-12-00904-95.[2] On January 29, 1998, Labor Arbiter Eduardo J. Carpio ruled in favor of complainant by ordering the respondents to pay complainant his unpaid wages and unpaid vacation leave pay, to refund his plane fare and to pay moral damages and attorney’s fees.[3] On appeal, the National Labor Relations Commission reversed the arbiter’s decision and dismissed the case for lack of basis.[4] For several times, complainant, either personally or through his designated agents, tried to follow up the status of the case. Each time, respondent would advise him to call on a later date at which time he may have some news of any development with the case.[5] Respondent filed with the Court of Appeals a motion for extension of time to file a petition for review and paid the corresponding docket fee. When complainant verified with the Court of Appeals the status of the case, he found out that respondent never filed a Petition for Review of his labor case. Consequently, the NLRC decision became final and executory. Thus, complainant filed this administrative complaint against respondent. On August 30, 2000, respondent was required to file his comment within 10 days from notice.[6] On September 25, 2000, respondent requested for additional time to file comment.[7] Subsequently, respondent filed a series of motions for extension to file comment. On February 28, 2001, respondent was warned that no further extension shall be granted.[8] Notwithstanding, and despite 11 extensions, respondent still failed to file his comment. Consequently, on July 29, 2002, respondent was required to show cause why he should not be disciplinarily dealt with or held in contempt for failure to comply with our directives.[9]

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On September 2, 2002, respondent filed his Compliance with Motion for Final Twelve (12) Day Extension With No Further Extension. [10] Finally, on September 17, 2002, respondent filed his comment[11] together with a Motion to Admit Comment Filed One Day Late. In a Resolution dated October 21, 2002, respondent’s Motion to Admit Comment Filed One Day Late was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.[12] As summarized, respondent alleged by way of defense, the following: (1) that complainant became respondent’s client after respondent handled these cases for complainant’s uncle Aniceto Encio and his family namely Criminal Case No. F-10088, POEA Case No. M-91-06-602, I.S. No. 93 E-17909 and POEA Case No. L-93-04-610; that respondent successfully handled these cases which led to the dismissal of the criminal case against Aniceto Encio and recovery of monetary awards in the other cases; (2) that NLRC NCR OCW Case No. 00-12-00904-95 was referred by Aniceto Encio to respondent for handling; that herein complainant and Aniceto Encio requested respondent not to charge them an acceptance fee for said case and instead offered to pay respondent 30% of any monetary award recovered in said case; … that on appeal to the National Labor Relations Commission, the Decision of Labor Arbiter Carpio was reversed and NLRC OCW Case No. 00-12-00904-95 was dismissed by the NLRC for lack of merit; … (4) that at the time respondent advanced the docket fees, complainant and respondent did not have any agreement that a Petition for Certiorari would be filed with the Court of Appeals; … (5) that weeks later, when complainant reimbursed respondent for the docket fees he had advanced, respondent advised complainant and his uncle that respondent intended to appeal the Decision of the NLRC to the Court of Appeals and so he filed a Petition for Extension of Time to File Petition …; (7) that there was an error in judgment on respondent’s part when instead of filing a Petition for Certiorari as originally intended, respondent chose to pursue another course of action, that of entertaining the idea of filing a Motion for Execution to enforce the Labor Arbiter’s Decision against the other respondents who did not appeal said Decision; (8) that respondent pleads good faith in the subsequent course of action taken; that respondent entertained the idea that he could enforce the original Decision through a Motion for Execution; … (9) that respondent tried his best to win complainant’s labor case and in fact, he won it at the Labor Arbiter’s level; (10) that respondent appeals to the sense of fairness of complainant; that in the 4 cases respondent handled for complainant and his uncle, respondent won 3 cases for them especially the criminal complaint for Homicide against complainant’s uncle; that in said criminal case, respondent did not charge a single centavo for attorney’s fees.[13] In his letter-reply filed on February 7, 2003, complainant averred the following statements originally in the vernacular: … it is not true that there was no acceptance fee because complainant paid respondent the amount of P1,500 plus the amount of P500 per hearing but no receipts were issued for these payments; that there is no truth to respondent’s allegation that complainant was in the province because complainant’s uncle called respondent 3 times a week to follow-up the Petition for Review; that it was actually complainant who paid for the docket fees but respondent who physically paid the same to the Court of Appeals; and that respondent made several promises to complainant’s uncle regarding the status of the Petition for Review but nothing came out of said promises.[14] The lone issue for resolution is whether respondent violated Canons 17 and 18 of the Code of Professional Responsibility. In its Report and Recommendation, the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP),[15] held that there was no sufficient justification for respondent’s failure to file the petition for review with the Court of Appeals. It found that respondent was aware of the period for filing said petition because he himself paid the docket fees and filed the Motion for Extension of Time to File the Petition for Review. His claim that he was pursuing another legal remedy in the labor case did not justify his failure to file the petition for review within the prescribed period. Complainant had placed his trust in respondent to handle his claims against his previous employer. Failure to comply with his legal duty as counsel of complainant in NLRC NCR OCW Case No. 00-12-00904-95 has caused damage and prejudice to the latter. Thus, in failing to file the petition for review, respondent was held to have breached Canons 17 and 18 of the Code of Professional Responsibility. The Commission on Bar Discipline of IBP recommended that respondent be suspended from the practice of law for a period of six (6) months.[16] The Board of Governors of the Integrated Bar of the Philippines, adopted the Report and Recommendation of the Investigating Commissioner, thus: 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

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recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondent’s violation of Canons 17 & 18 of the Code of Professional Responsibility by failing to file the Petition for Certiorari, Atty. Bernardo G. Juanino is hereby SUSPENDED from the practice of law for six (6) months.[17] We agree with the findings of the IBP Investigating Commissioner. The lawyer has the duty to exert his best judgment in the prosecution or defense of the case entrusted to him and to exercise reasonable and ordinary care and diligence in the pursuit or defense of the case.[18] By his own admission, respondent entertained the idea of filing a motion for execution, thus: I honestly believed then that since the other respondents did not appeal the Decision to the Commission of the NLRC, I could enforce the Decision (See THIRD REASON) against these other respondents who did not appeal. So undersigned went to Honorable Labor Arbiter Eduardo J. Carpio and explained to him about my plan to file a Motion for Execution against the other respondents who did not appeal the Decision to the Commission of the NLRC. I was not able to see him the first two times that I went as I was informed he was assigned to certain task force and when I saw him the third time, Honorable Labor Arbiter Eduardo J. Carpio informed me that since decision was reversed on appeal and the complaint dismissed, there would be no basis for filing a Motion for Execution to enforce Decision. I was dumbfounded as the period to file a Petition for Certiorari already expired.[19] As a lawyer, respondent should know that he is not required to seek prior approval from the labor arbiter before he could file a motion for execution. Notwithstanding, he presented himself, not once, but thrice, before the office of the arbiter to discuss his plan to file a motion for execution, only to discover that such recourse was not feasible. Worse, while respondent was waiting for the arbiter’s opinion, the period to file the petition before the Court of Appeals continued to run, as in fact, it eventually expired. Failure to appeal to the Court of Appeals despite instructions by the client to do so constitutes inexcusable negligence on the part of counsel. Once a lawyer consents to defend the cause of his client, he owes fidelity to such cause and must at all times be mindful of the trust and confidence reposed in him. He is bound to protect his client’s interest to the best of his ability and perform his duties to his client with utmost diligence. Nothing less can be expected from a member of the Philippine Bar. For having neglected a legal matter entrusted to him by his client, respondent did not serve his client with diligence and competence. His inexcusable negligence on such matter renders him liable for violation of Canons 17 and 18 of the Code of Professional Responsibility.[20] As we held in the recent case of Barbuco v. Atty. Beltran,[21] an attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. Thus, failure to file brief for his client certainly constitutes inexcusable negligence on his part, especially if such failure took the form of filing a pleading after the deadline for filing the same has passed. Respondent has indeed committed a serious lapse in judgment in failing to perform his professional duty to his client under the canons of his profession. The failure to timely file a pleading is by itself a sin of omission on the part of the respondent. However, complainant’s travails were further compounded by the failure of the respondent to maintain an open line of communication with his client in direct contravention of Canon 18, Rule 18.04 of the Code of Professional Responsibility which requires a lawyer to keep his client informed of the status of his case and respond within a reasonable time to the client’s request for information.[22] In Legarda v. Court of Appeals,[23] counsel’s failure to exercise due diligence in protecting the interest of his client caused the latter material prejudice. The moment counsel takes a client’s cause, he covenants that he will exert all effort for its prosecution until its final resolution. A lawyer who fails to exercise due diligence or abandon’s his client’s cause makes him unworthy of the trust reposed on him by the latter; he owes fealty, not only to his client, but also to the Court of which he is an officer.[24] We observed in Pariñas v. Atty. Paguinto[25] that a lawyer should give adequate attention, care and time to his client’s case. Once he agrees to handle a case, he should undertake the task 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 not enough that a lawyer possesses the qualification to handle the legal matter; he must also give adequate attention to his legal work. Utmost fidelity is demanded once counsel agrees to take the cudgels for his client’s cause. In Barbuco v. Atty. Beltran, Guiang v. Atty. Antonio,[26] and Sps. Villaluz v. Judge Armenta,[27] the Court suspended counsel for six months upon a finding that their failure to perfect an appeal was inexcusable and persuasively demonstrative of negligence and malpractice, a violation of Rule 18.03 of the Code of Professional Responsibility which declares that “a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.”

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We cannot overstate the duty of a lawyer to uphold the integrity and dignity of the legal profession at all times. He can do this by faithfully performing his duties to society, to the bar, to the courts and to his clients.[28] Incidentally, we note that respondent delayed the filing of the comment for more than two (2) years. Despite numerous extensions, which were all granted, still, he filed the comment one (1) day late. By neglecting his duties to his client and to this Court, respondent transgressed the canons of legal ethics enshrined in the Code of Professional Responsibility. Such misconduct should not be countenanced. WHEREFORE, in view of the foregoing, respondent Atty. Bernardo G. Juanino is found guilty of negligence and is SUSPENDED from the practice of law for six (6) months effective upon receipt of this Decision, with a WARNING that a repetition of the same or similar acts will be dealt with more severely. Let a copy of this Decision be furnished to the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the Philippines, for their information and guidance. SO ORDERED. GREGORIO DIMARUCOT y GARCIA, Petitioner,

G.R. No. 183975 Present:

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

CARPIO MORALES, J., Chairperson, CARPIO,* PERALTA,** BERSAMIN, and VILLARAMA, JR., JJ. Promulgated:

September 20, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RESOLUTION VILLARAMA, JR., J.:

For resolution in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is the Resolution[1] dated July 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30466 denying petitioner’s omnibus motion to reconsider the August 29, 2007 Resolution dismissing his appeal, to expunge the same from the Book of Entries of Judgment, and to give petitioner a period of thirty (30) days within which to file the appellant’s brief. The antecedents: Petitioner is the accused in Criminal Case No. 98-M-98 for Frustrated Murder in the Regional Trial Court (RTC) of Malolos, Bulacan, under the following Information: That on or about the 18th day of August, 1997, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an iron pipe and with intent to kill one Angelito Rosini y Go, did then and there wilfully, unlawfully and feloniously, with treachery and evident premeditation, attack, assault and hit with the said iron pipe the said Angelito Rosini y Go, hitting him on his head, thereby inflicting upon him physical injuries, which ordinarily would have caused the death of the said Angelito Rosini y Go, thus performing all acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical

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assistance rendered to the said Angelito Rosini y Go which prevented his death. Contrary to law.[2] After trial, on September 11, 2006, the RTC promulgated its Decision[3] convicting petitioner of frustrated homicide, and sentencing him as follows: WHEREFORE, finding accused GREGORIO aka GEORGE DIMARUCOT y GARCIA liable of (sic) the lesser offense of Frustrated Homicide, this Court hereby sentences him to an indeterminate penalty of four (4) years and two (2) months and one (1) day, as minimum, to eight (8) years and one (1) day, as maximum, of imprisonment.

Accused is further directed to pay complainant Angelito Rosini y Go, actual damages broken down as follows: the amount of Nineteen Thousand One Hundred Ten Pesos and Sixty Five Centavos (P19,110.65) for the hospitalization/medical bills and the amount of Thirty Six Thousand Pesos (P36,000.00) as loss of income.

With costs against the accused.

SO ORDERED.[4]

Upon receiving the notice to file appellant’s brief, petitioner thru his counsel de parte requested and was granted additional period of twenty (20) days within which to file said brief.[5] This was followed by three (3) successive motions for extension which were all granted by the CA.[6] On August 29, 2007, the CA issued a Resolution dismissing the appeal, as follows: Considering the JRD verification report dated July 24, 2007 that the accused-appellant failed to file his appellant’s brief within the reglementary period which expired on June 6, 2007, his appeal is considered ABANDONED and thus DISMISSED, pursuant to Sec. 1 (e), Rule 50, 1997 Revised Rules of Civil Procedure. SO ORDERED.[7]

Petitioner filed a motion for reconsideration,[8] his counsel admitting that he was at fault in failing to file the appellant’s brief due to “personal problems emanating from his [counsel’s] wife’s recent surgical operation.” It was thus prayed that the CA allow petitioner to file his appellant’s brief which counsel undertook to submit within seven (7) days or until October 4, 2007. By Resolution[9] dated November 27, 2007, the CA, finding the allegations of petitioner unpersuasive and considering that the intended appellant’s brief was not at all filed on October 4, 2007, denied the motion for reconsideration. As per Entry of Judgment, the Resolution of August 29, 2007 became final and executory on January 4, 2008.[10] On May 8, 2008, petitioner filed an Omnibus Motion (1) To Reconsider August 29, 2007 Resolution, (2) To Expunge The Same From Book Of Entries Of Judgment, and (3) To Give Accused-Appellant A Final Period Of Thirty Days To File Appellant’s Brief. Petitioner reiterated that his failure to file the appeal brief was solely the fault of his lawyer who is reportedly suffering from personal problems and depression. He also cited his advanced age (he will turn 76 on May 30, 2008) and medical condition (hypertension with cardiovascular disease and pulmonary emphysema), attaching copies of his birth certificate, medical certificate and certifications from the barangay and church minister.[11] In the assailed Resolution dated July 23, 2008, the CA denied the omnibus motion holding that petitioner is bound by the mistakes and negligence of his counsel, such personal problems of a counsel emanating from his wife’s surgical operation are not considered mistake and/or negligence contemplated under the law as to warrant reconsideration of the dismissal of petitioner’s appeal for failure to

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file appellant’s brief. Thus, when appellant did not file a petition before this Court to assail the validity of the August 29, 2007 and November 27, 2007 resolutions, the August 29, 2007 resolution attained finality and entry of judgment thereof is in order.[12] The petition has no merit. Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal Procedure, as amended, provides:

SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. xxxx It is clear under the foregoing provision that a criminal case may be dismissed by the CA motu proprio and with notice to the appellant if the latter fails to file his brief within the prescribed time. The phrase “with notice to the appellant” means that a notice must first be furnished the appellant to show cause why his appeal should not be dismissed.[13] In the case at bar, there is no showing that petitioner was served with a notice requiring him to show cause why his appeal should not be dismissed for failure to file appellant’s brief. The purpose of such a notice is to give an appellant the opportunity to state the reasons, if any, why the appeal should not be dismissed because of such failure, in order that the appellate court may determine whether or not the reasons, if given, are satisfactory.[14] Notwithstanding such absence of notice to the appellant, no grave abuse of discretion was committed by the CA in considering the appeal abandoned with the failure of petitioner to file his appeal brief despite four (4) extensions granted to him and non-compliance to date. Dismissal of appeal by the appellate court sans notice to the accused for failure to prosecute by itself is not an indication of grave abuse. Thus, although it does not appear that the appellate court has given the appellant such notice before dismissing the appeal, if the appellant has filed a motion for reconsideration of, or to set aside, the order dismissing the appeal, in which he stated the reasons why he failed to file his brief on time and the appellate court denied the motion after considering said reasons, the dismissal was held proper. Likewise, where the appeal was dismissed without prior notice, but the appellant took no steps either by himself or through counsel to have the appeal reinstated, such an attitude of indifference and inaction amounts to his abandonment and renunciation of the right granted to him by law to prosecute his appeal.[15] Here, the Court notes the repeated non-observance by petitioner and his counsel of the reglementary periods for filing motions and perfecting appeal. While still at the trial stage, petitioner’s motion to admit and demurrer to evidence was denied as it was not seasonably filed (petitioner was granted fifteen (15) days from August 8, 2001 within which to file demurrer to evidence but filed his motion to dismiss only on September 4, 2001), in accordance with Section 23, Rule 119 of the Revised Rules of Criminal Procedure, as amended. [16] Before the CA, petitioner and his counsel filed no less than four (4) motions for extension to file brief, which was never filed nor attached in the motion for reconsideration of the August 29, 2007 Resolution dismissing the appeal. The last extension given expired on June 6, 2007, without any brief submitted by petitioner or his counsel. And even when he filed the Omnibus Motion on May 8, 2008, still no appellant’s brief was attached by petitioner. Neither did petitioner file any petition before this Court questioning the validity of the August 29, 2007 resolution and the November 27, 2007 denial of his motion for reconsideration. The dismissal of his appeal having become final, it was indeed too late in the day for petitioner to file the Omnibus Motion on May 8, 2008, which was four (4) months after the finality of the resolution dismissing the appeal. Having been afforded the opportunity to seek reconsideration and setting aside of the motu proprio dismissal by the CA of his appeal for non-filing of the appeal brief, and with his subsequent inaction to have his appeal reinstated after the denial of his motion for reconsideration, petitioner cannot impute error or grave abuse on the CA in upholding the finality of its dismissal order. Non-compliance with the requirement of notice or show cause order before the motu proprio dismissal under Section 8, paragraph 1 of Rule 124 had thereby been cured.[17] Under the circumstances, the petitioner was properly declared to have abandoned his appeal for failing to diligently prosecute the same. Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression. The negligence and mistakes of counsel are binding on the client.[18] There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the

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outright deprivation of one’s property or liberty through a technicality. However, in this case, we find no reason to exempt petitioner from the general rule.[19] The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer. Instead, petitioner continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of the rules for reason of petitioner’s age and medical condition. Verily, diligence is required not only from lawyers but also from their clients.[20] Negligence of counsel is not a defense for the failure to file the appellant’s brief within the reglementary period. Thus, we explained in Redeña v. Court of Appeals:[21] In seeking exemption from the above rule, petitioner claims that he will suffer deprivation of property without due process of law on account of the gross negligence of his previous counsel. To him, the negligence of his former counsel was so gross that it practically resulted to fraud because he was allegedly placed under the impression that the counsel had prepared and filed his appellant’s brief. He thus prays the Court reverse the CA and remand the main case to the court of origin for new trial.

Admittedly, this Court has relaxed the rule on the binding effect of counsel’s negligence and allowed a litigant another chance to present his case (1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when application of the rule will result in outright deprivation of the client’s liberty or property; or (3) where the interests of justice so require. None of these exceptions obtains here.

For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment of the client’s cause must be shown. Here, petitioner’s counsel failed to file the appellant’s brief. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceeding below. (Emphasis supplied.) The right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege, and may be exercised only in accordance with the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost.[22] Strict compliance with the Rules of Court is indispensable for the orderly and speedy disposition of justice. The Rules must be followed, otherwise, they will become meaningless and useless.[23] WHEREFORE, the petition is DENIED for lack of merit. The Resolution dated July 23, 2008 of the Court of Appeals in CAG.R. CR No. 30466 is AFFIRMED.

SO ORDERED. [A.C. No. 5817. May 27, 2004] EMMA V. DE JUAN, complainant, vs. ATTY. OSCAR R. BARIA III, respondent. RESOLUTION QUISUMBING, J.: In her Salaysay filed with the Office of the Bar Confidant on August 29, 2002, complainant, former client of respondent, charged respondent with negligence in handling her labor case and threats against her person. The complainant alleged that respondent Atty. Oscar R. Baria III, as her counsel in NLRC NCR CA No. 022654-00/NLRC RAB IV-711287-99-R, Emma De Juan v. Triple AAA Antique/Mr. Yappe and Mr. Godofredo Nadia, negligently failed to file motion for reconsideration of the decision dated September 24, 2001 of the NLRC in her behalf.[1] The complainant avers that she was hired by Triple AAA on or about December 15, 1998 as packer on probation status for six months in its Packing Department.[2] Based on a performance evaluation citing her irregular attendance and inefficiency, the company terminated

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her services on June 11, 1999,[3] after waiting for two weeks for her to report. She claims that she was terminated without notice nor explanation[4] so she filed a complaint before the National Labor Relations Commission (NLRC) against the company for illegal dismissal, non-payment of premium pay for holiday, rest day, and 13th month pay. She also claimed moral and exemplary damages and attorney’s fees.[5] In search of a lawyer, she asked the assistance of Banahaw Broadcasting Corporation (BBC) which assigned respondent to handle her labor case. Respondent represented complainant on a contingency fee agreement. On December 29, 1999, the Labor Arbiter rendered a decision in favor of complainant.[6] Triple AAA appealed to the NLRC. In a decision promulgated on September 24, 2001, the NLRC reversed the Labor Arbiter and declared there was no illegal dismissal.[7] Complainant blamed respondent for the reversal. She said that she came to know of the reversal of the Labor Arbiter’s decision when she called respondent in October 2001. When she asked the respondent what they should do, respondent answered, “Paano iyan iha…eh… hindi ako marunong gumawa ng Motion for Reconsideration.” Sometime in November 2001, her husband called respondent to ask if he did anything in connection with the NLRC’s Decision and he was advised by respondent’s secretary that, “Sabi ni Atty…huwag na kayong magpakita sa kanya dahil galit na galit sa inyo si Attorney at baka kung ano pa ang magawa niya sa inyo.”[8] The Court required respondent to comment and referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[9] In his Comment, respondent explained that soon after passing the bar in 1999, he was employed as a broadcaster in DWAN’s radio program offering free legal services to the poor. He gave free legal services to indigent clients one of whom was complainant. As a practice, he said he forewarned his clients that he was just a new lawyer and that they should not expect too much from him because of his limited legal experience. According to respondent he tried to explain to complainant the legal remedies available to her as well as the time her case may take. It appeared to him that complainant did not fully grasp the usual delays that may be involved in her case. He recalled that when he told complainant that the Labor Arbiter’s decision was in her favor, she was so jubilant at the money judgment. Later however, the complainant became furious when he told her that Triple AAA Antique had appealed. Respondent filed a Motion for Writ of Execution of the Labor Arbiter’s Decision but this Motion was ruled premature. Respondent then filed an opposition to the appeal filed by Triple AAA but the NLRC still gave due course to the appeal. While Triple AAA’s appeal was pending resolution he told complainant to call him every week so that she could be advised of any developments in her case. He generously suggested that complainant call “collect” to lessen her expenses. He even allowed complainant and her husband to stay in his home when they came to Manila from the province. He said he even fed them when they were in Manila. In October 2001, the NLRC rendered its decision reversing the Labor Arbiter. By this time, according to respondent, he confronted complainant for lying to him about her employment with Triple AAA and told her that because of her lies there was a possibility she could lose the appeal. He advised complainant to get a more experienced lawyer for her appeal because as a new lawyer he was not confident he could handle her appeal. Thereafter, complainant no longer contacted him and at some time, he even had to ask her whereabouts from her relatives. On December 2001, respondent received calls from the staff of Raffy Tulfo, a radio commentator. In one of these calls, his wife talked to one of Tulfo’s employees and she was told that complainant told Tulfo that the respondent received money from Triple AAA Antique. As a result Tulfo lambasted him on his radio program. Respondent thereafter called Tulfo, explained his side, and demanded that the latter apologize on air otherwise he would file a libel case against Tulfo. Sometime in January 2002, respondent’s secretary received a call from the complainant’s husband. When respondent’s secretary confronted the husband regarding the Tulfo incident, complainant’s husband retorted, “Sabihin mo sa kanya mag ingat siya at baka may mangyari sa kanya.” Shortly thereafter, respondent began receiving death threats over the phone and also noticed armed men casing his office. He reported these calls and presence of suspicious armed men to the police. Respondent surmises that complainant believed Triple AAA paid him off and he pocketed money supposedly for her. Respondent vehemently denied he did. He asks that Triple AAA be summoned to bear witness to his story. Respondent asserts that he has not committed any breach of his oath and that he has vigorously pursued his client’s cause to the end. He avers that it was his client’s own negligence and folly that caused her to lose her case. He asks that the complaint be dismissed. In a Resolution dated March 15, 2003, this Court referred the case to the IBP for investigation, report and recommendation. In turn, the

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IBP Commission on Bar Discipline required complainant to reply. In her reply written in Filipino, complainant denied that she accepted money from respondent during the pendency of her labor case, except on one occasion when she borrowed P100 from respondent’s secretary for travel fare back to the province. She reiterated that she filed her Salaysay because of respondent’s failure to file a motion for reconsideration. She further insists that she does not believe that respondent did not know how to file a motion for reconsideration as he claims since she was aware that even a law student would know how to. In its Resolution dated August 30, 2003, the IBP approved the recommendation of the Commission on Bar Discipline. The IBP Board of Governors found respondent guilty of negligence in handling the aforecited labor case and recommended that respondent be suspended from practicing law for three months. The charge of grave threats was dismissed for complainant’s failure to substantiate the same.[10] The core issue is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainant a motion for reconsideration from the decision of the NLRC. No lawyer is obliged to advocate for every person who may wish to become his client, but once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must be mindful of the trust and confidence reposed in him.[11] Further, among the fundamental rules of ethics is the principle that an attorney who undertakes an action impliedly stipulates to carry it to its termination, that is, until the case becomes final and executory. A lawyer is not at liberty to abandon his client and withdraw his services without reasonable cause and only upon notice appropriate in the circumstances.[12] Any dereliction of duty by a counsel, affects the client.[13] This means that his client is entitled to the benefit of any and every remedy and defense that is authorized by the law and he may expect his lawyer to assert every such remedy or defense.[14] The records reveal that indeed the respondent did not file a motion for reconsideration of the NLRC such that the said decision eventually had become final and executory. Respondent does not refute this. His excuse that he did not know how to file a motion for reconsideration is lame and unacceptable. After complainant had expressed an interest to file a motion for reconsideration, it was incumbent upon counsel to diligently return to his books and re-familiarize himself with the procedural rules for a motion for reconsideration. Filing a motion for reconsideration is not a complicated legal task. We are however, not unaware that respondent had been forthright and candid with his client when he warned her of his lack of experience as a new lawyer. We are also not unaware that he had advised complainant to get a new lawyer. However, his candor cannot absolve him. As already stressed by this Court: A lawyer is expected to be familiar with these rudiments of law and procedure and anyone who acquires his service is entitled to not just competent service but also whole-hearted devotion to his client’s cause. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect within the bounds of law the interest of his client. A lawyer should never neglect a legal matter entrusted to him, otherwise his negligence in fulfilling his duty will render him liable for disciplinary action.[15] Again, the Court held in the case of Santos v. Lazaro,[16] that “Rule 18.03 of the Code of Professional Responsibility[17] explicitly provides that negligence of lawyers in connection with legal matters entrusted to them for handling shall render them liable. Without a proper revocation of his authority and withdrawal as counsel, respondent remains counsel of record and whether or not he has a valid cause to withdraw from the case, he cannot just do so and leave his client out in the cold. An attorney may only retire from the case either by a written consent of his client or by permission of the court after due notice and hearing, in which event the attorney should see to it that the name of the new attorney is recorded in the case.[18] Respondent did not comply with these obligations. WHEREFORE, respondent lawyer Oscar R. Baria III is hereby FINED in the amount of P5,000.00, with a stern warning that a repetition of this or similar offense will be dealt with more severely. SO ORDERED. G.R. No. 94457 March 18, 1991 VICTORIA LEGARDA, petitioner, vs. THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE, INC., THE HONORABLE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 94, respondents. Singson, Valdez & Associates for petitioner.

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Lenito T. Serrano for private respondent.

GANCAYCO, J.:p Nothing is more settled than the rule that the mistake of a counsel binds the client. It is only in case of gross or palpable negligence of counsel when the courts must step in and accord relief to a client who suffered thereby. The present case is a typical example of such rare exception. Petitioner Victoria Legarda was the owner of a parcel of land and the improvements thereon located at 123 West Avenue, Quezon City. On January 11, 1985 respondent New Cathay House, Inc. filed a complaint against the petitioner for specific performance with preliminary injunction and damages in the Regional Trial Court (RTC) for Quezon City alleging, among others, that petitioner entered into a lease agreement with the private respondent through its representative, Roberto V. Cabrera, Jr., of the aforestated property of petitioner effective January 1, 1985 until December 31, 1989 or for a period of five (5) years; that the rental is P25,000.00 per month with 5% escalation per year; that on November 23, 1984, private respondent deposited the amount of P72,000.00 with petitioner as down payment of rentals; that respondent drew up the written contract and sent it to petitioner, that petitioner failed and refused to execute and sign the same despite demands of respondent; and that the respondent suffered damages due to the delay in the renovation and opening of its restaurant business. The private respondent prayed that pending the resolution of the case a restraining order be issued against petitioner or her agents enjoining them from stopping the renovation and use of the premises by private respondent. It was also prayed that after due hearing the petitioner be ordered to execute the lease contract; to pay actual compensatory, exemplary and other damages in such amount as may be proved during the trial including P30,000.00 attorney's fees plus P300.00 per appearance of counsel, and to pay the expenses of litigation. 1 Petitioner engaged the services of counsel to handle her case. Said counsel filed his appearance with an urgent motion for extension of time to file the answer within ten (10) days from February 26, 1985. 2 However, said counsel failed to file the answer within the extended period prayed for. Counsel for private respondent filed an ex-parte motion to declare petitioner in default. This was granted by the trial court on March 25, 1985 and private respondent was allowed to present evidence ex-parte. Thereafter, on March 25, 1985, the trial court rendered its decision, the dispositive part of which reads as follows: WHEREFORE, judgment is hereby rendered ordering defendant Victoria G. Legarda to execute and sign Exhibit "D":, the lease contract for the premises at 123 West Avenue, Quezon City. Accordingly, the preliminary injunction earlier issued on January 31, 1985 is hereby made permanent. Judgment is likewise rendered ordering defendant to pay exemplary damages in the sum of P100,000.00 to serve as example and deterrent for others, and actual and compensatory damages as follows: 1. For loss and destroyed goodwill and reputation in the amount of P100,000.00; 2. The sum of P61,704.40 as adjustments in the costs of labor and materials for the renovation of the premises; 3. The sum of P50,000.00 as unearned income for the delay of plaintiff 's operations from January 1, 1985 up to February 25, 1985 or a period of almost two (2) months; 4. The sum of P16,635.57 and P50,424.40 as additional compensatory damages incurred by plaintiff for the extension of the lease of its premises at Makati and salaries of idle employees, respectively; 5. The sum of P10,000.00 as and by way of attorney's fees; and 6. The costs of suit. 3 Copy of said decision was duly served on counsel for the petitioner but he did not take any action. Thus, the judgment became final and executory. On May 8, 1985, upon motion of private respondent, a writ of execution of the judgment was issued by the trial court. 4 At public auction, the sheriff sold the aforestated property of petitioner to Roberto V. Cabrera, Jr. for the sum of P376,500.00 to satisfy the judgment. The sheriff issued a certificate of sale dated June 8, 1985 covering the said property. 5 After the one year redemption period

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expired without the petitioner redeeming the property, ownership was consolidated in the name of Roberto V. Cabrera, Jr. The sheriff issued a final deed of sale on July 8, 1986 in his favor. Cabrera registered the same in the office of the Register of Deeds on July 11, 1986. Upon learning of this unfortunate turn of events, petitioner prevailed upon her counsel, to seek the appropriate relief. On November 6, 1986 said counsel filed in the Court of Appeals a petition for annulment of judgment calling attention to the unjust enrichment of private respondent in securing the transfer in its name of the property valued at P 2.5 million without justification; that when the complaint was filed in court by private respondent against the petitioner, the parties came to an agreement to settle their differences, the private respondent assuring petitioner that the complaint it filed shall be withdrawn so petitioner advised her lawyer that there was no longer any need to file an answer to the complaint; that on February 22, 1985, private respondent nevertheless filed an ex-parte motion to declare the petitioner in default; that petitioner was deprived of the right to present her defense through false pretenses, misrepresentation and fraud practiced upon her by private respondent warranting the annulment of the judgment; that the documentary evidence presented by private respondent, which served as the basis of the decision, is falsified and tampered with; that as an example, the voucher filed by petitioner, contains typewritten entries to the effect that the term of the lease is for five (5) years to which petitioner never agreed, and that the option to buy the property was given to the private respondent; that the fact that the property worth P2 million was sold at public auction at a shockingly and questionably low price of P376,500.00 is by itself a sufficient basis for annulling the sale for being grossly inadequate to shock the conscience and understanding of men, giving rise to a presumption of fraud. 6 Thus, it was prayed that a preliminary mandatory injunction issue ordering the private respondent to surrender the property to petitioner and to enjoin the former from further harassing and threatening the peaceful possession of petitioner; and that after hearing, the decision of the trial court in Civil Case No. Q-43811 and the sheriffs certificate of sale 7 be likewise annulled; that private respondent be adjudged to pay petitioner no less than P500,000.00 actual and moral damages, as well as exemplary damages and attorney's fees in the amount of P50,000.00, plus the costs of the suit. 8 On February 2, 1987 an amended petition was filed by counsel for petitioner in the Court of Appeals raising the additional issue that the decision is not supported by the allegations in the pleadings or by the evidence submitted. 9 In due course, a decision was rendered by the Court of Appeals on November 29, 1989. 10 The appellate court made the following observations: On the other hand, petitioner's above allegation of fraud supposedly practiced upon her by Roberto V. Cabrera, Jr. is so improbable as to inspire belief. For the Coronel Law Office had already entered its appearance as petitioner's counsel by then, so that if it were true that Cabrera had already agreed to the conditions imposed by petitioner, said law office would have asked plaintiff to file the proper motion to dismiss or withdraw complaint with the Court, and if plaintiff had refused to do so, it would have filed defendant's answer anyway so that she would not be declared in default. Or said law office would have prepared a compromise agreement embodying the conditions imposed by their client in the lease contract in question which plaintiff had allegedly already accepted, so that the same could have been submitted to the Court and judgment on a compromise could be entered. All these, any conscientious lawyer of lesser stature than the Coronel Law Office, headed by no less than a former law dean, Dean Antonio Coronel, or even a new member of the bar, would normally have done under the circumstances to protect the interests of their client, instead of leaving it to the initiative of plaintiff to withdraw its complaint against defendant, as it had allegedly promised the latter. Thus, it is our belief that this case is one of-pure and simple negligence on the part of defendant's counsel who simply failed to file the answer in behalf of defendant, But counsel's negligence does not stop here. For after it had been furnished with copy of the decision by default against defendant, it should then have appealed therefrom or file a petition from relief from the order declaring their client in default or from the judgment by default. [sic] Again, counsel negligently failed to do either. Hence, defendant is bound by the acts of her counsel in this case and cannot be heard to complain that the result might have been different if it had proceeded differently (Pulido vs. C.A., 122 SCRA 63; Ayllon vs. Sevilla, 156 SCRA 257, among other cases). And the rationale of this rule is obvious and clear. For "if such grounds were to be admitted as reasons for opening cases, there would never be an end to a suit so long as new counsel could be employed who could allege and show that the prior counsel had not been sufficiently diligent, or experienced, or learned" (Fernandez vs. Tan Tiong Tick, 1 SCRA 1138). 11 Despite these findings, the appellate court nevertheless dismissed the petition for annulment of judgment with costs against the petitioner.

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A copy of the said judgment appears to have been served on counsel for the petitioner. However, said counsel did not file a motion for reconsideration or appeal therefrom, so it became final. It was only in March 1990 when the secretary of counsel for petitioner informed the latter of the adverse decision against her only after persistent telephone inquiries of the petitioner. Hence, petitioner secured the services of another lawyer who filed this petition for certiorari under Rule 65 of the Rules of Court wherein it is prayed that the judgment of the Regional Trial Court of Quezon City in Civil Case No. Q-43811, the decision of the Court of Appeals in CA-G.R. No. 10487 and the sheriff's sale at public auction of the property in question be annulled, as the same are attributable to the gross negligence and inefficiency of petitioner's counsel, whose blunder cannot bind the petitioner who was deprived of due process thereby. It is further prayed that private respondent Cathay House, Inc. be ordered to reconvey to petitioner the property covered by TCT No. 270814, which was sold at public auction to Roberto V. Cabrera, Jr. and in whose favor its ownership was consolidated, and thereafter ownership appears to have been transferred to private respondent. The petition is impressed with merit. Petitioner's counsel is a well-known practicing lawyer and dean of a law school. It is to be expected that he would extend the highest quality of service as a lawyer to the petitioner. Unfortunately, counsel appears to have abandoned the cause of petitioner. After agreeing to defend the petitioner in the civil case filed against her by private respondent, said counsel did nothing more than enter his appearance and seek for an extension of time to file the answer. Nevertheless, he failed to file the answer. Hence, petitioner was declared in default on motion of private respondent's counsel. After the evidence of private respondent was received ex-parte, a judgment was rendered by the trial court. Said counsel for petitioner received a copy of the judgment but took no steps to have the same set aside or to appeal therefrom. Thus, the judgment became final and executory. The property of petitioner was sold at public auction to satisfy the judgment in favor of private respondent. The property was sold to Roberto V. Cabrera, Jr., representative of private respondent, and a certificate of sale was issued in his favor. The redemption period expired after one year so a final deed of sale was issued by the sheriff in favor of Cabrera, who in turn appears to have transferred the same to private respondent. During all the time, the petitioner was abroad. When, upon her return, she learned, to her great shock, what happened to her case and property, she nevertheless did not lose faith in her counsel. She still asked Atty. Coronel to take such appropriate action possible under the circumstances. As above related, said counsel filed a petition for annulment of judgment and its amendment in the Court of Appeals. But that was all he did. After an adverse judgment was rendered against petitioner, of which counsel was duly notified, said counsel did not inform the petitioner about it. He did not even ask for a reconsideration thereof, or file a petition for review before this Court. Thus, the judgment became final. It was only upon repeated telephone inquiries of petitioner that she learned from the secretary of her counsel of the judgment that had unfortunately become final. A lawyer owes entire devotion to the interest of his client, warmth and zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing can be taken or withheld from his client except in accordance with the law. He should present every remedy or defense authorized by the law in support of his client's cause, regardless of his own personal views. In the full discharge of his duties to his client, the lawyer should not be afraid of the possibility that he may displease the judge or the general public. 12 Judged by the actuations of said counsel in this case, he has miserably failed in his duty to exercise his utmost learning and ability in maintaining his client's cause. 13 It is not only a case of simple negligence as found by the appellate court, but of reckless and gross negligence, so much so that his client was deprived of her property without due process of law. In People's Homesite & Housing Corp. vs. Tiongco and Escasa, 14 this Court ruled as follows: Procedural technicality should not be made a bar to the vindication of a legitimate grievance. When such technicality deserts from being an aid to justice, the courts are justified in excepting from its operation a particular case. Where there was something fishy and suspicious about the actuations of the former counsel of petitioner in the case at bar, in that he did not given any significance at all to the processes of the court, which has proven prejudicial to the rights of

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said clients, under a lame and flimsy explanation that the court's processes just escaped his attention, it is held that said lawyer deprived his clients of their day in court, thus entitling said clients to petition for relief from judgment despite the lapse of the reglementary period for filing said period for filing said petition. In Escudero vs. Judge Dulay, 15 this Court, in holding that the counsel's blunder in procedure is an exception to the rule that the client is bound by the mistakes of counsel, made the following disquisition: Petitioners contend, through their new counsel, that the judgments rendered against them by the respondent court are null and void, because they were therein deprived of their day in court and divested of their property without due process of law, through the gross ignorance, mistake and negligence of their previous counsel. They acknowledge that, while as a rule, clients are bound by the mistake of their counsel, the rule should not be applied automatically to their case, as their trial counsel's blunder in procedure and gross ignorance of existing jurisprudence changed their cause of action and violated their substantial rights. We are impressed with petitioner's contentions. Ordinarily, a special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for failure to file a timely petition for review on certiorari (appeal) under Rule 45 of the Rules. Where, however, the application of the rule will result in a manifest failure or miscarriage of justice, the rule may be relaxed. xxx xxx xxx While this Court is cognizant of the rule that, generally, a client will suffer the consequences of the negligence, mistake or lack of competence of his counsel, in the interest of justice and equity, exceptions may be made to such rule, in accordance with the facts and circumstances of each case. Adherence to the general rule would, in the instant case, result in the outright deprivation of their property through a technicality. In its questioned decision dated November 19, 1989 the Court of Appeals found, in no uncertain terms, the negligence of the then counsel for petitioner when he failed to file the proper motion to dismiss or to draw a compromise agreement if it was true that they agreed on a settlement of the case; or in simply filing an answer; and that after having been furnished a copy of the decision by the court he failed to appeal therefrom or to file a petition for relief from the order declaring petitioner in default. In all these instances the appellate court found said counsel negligent but his acts were held to bind his client, petitioner herein, nevertheless. The Court disagrees and finds that the negligence of counsel in this case appears to be so gross and inexcusable. This was compounded by the fact, that after petitioner gave said counsel another chance to make up for his omissions by asking him to file a petition for annulment of the judgment in the appellate court, again counsel abandoned the case of petitioner in that after he received a copy of the adverse judgment of the appellate court, he did not do anything to save the situation or inform his client of the judgment. He allowed the judgment to lapse and become final. Such reckless and gross negligence should not be allowed to bind the petitioner. Petitioner was thereby effectively deprived of her day in court. Thus, We have before Us a case where to enforce an alleged lease agreement of the property of petitioner, private respondent went to court, and that because of the gross negligence of the counsel for the petitioner, she lost the case as well as the title and ownership of the property, which is worth millions. The mere lessee then now became the owner of the property. Its true owner then, the petitioner, now is consigned to penury all because her lawyer appear to have abandoned her case not once but repeatedly. The Court cannot allow such a grave injustice to prevail. It cannot tolerate such unjust enrichment of the private respondent at the expense of the petitioner. The situation is aggravated by the fact that said counsel is a well-known practicing lawyer and the dean of a law school as the Court at the beginning of this discourse observed. His competence should be beyond cavil. Thus, there appears to be no cogent excuse for his repeated negligence and inaction. His lack of devotion to duty is so gross and palpable that this Court must come to the aid of his distraught client, the petitioner herein. As member of the Philippine Bar he owes complete fidelity to the cause of his client. He should give adequate attention, care and time to his cases. This is the reason why a practicing lawyer should accept only so many cases he can afford to handle. And once he agrees to handle a case, he should undertake the task with dedication and care. If he should do any less, then he is not true to his oath as a lawyer. WHEREFORE, the petition is GRANTED and the questioned decision of the Regional Trial Court of Quezon City dated March 25, 1985

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in Civil Case No. Q-43811; the decision of the Court of Appeals dated November 29, 1989 in CA-G.R. No. SP-10487; the Sheriff 's Certificate of Sale dated June 27, 1985 of the property in question; and the subsequent final deed of sale covering the same property, are all hereby declared null and void. Private respondent New Cathay House, Inc. is directed to reconvey said property to the petitioner, and the Register of Deeds is ordered to cancel the registration of said property in the name of private respondent and to issue a new one in the name of petitioner. Costs against private respondent. Said counsel for petitioner is hereby required to show cause within ten (10) days from notice why he should not be held administratively liable for his acts and omissions hereinabove described in this decision. SO ORDERED. RENERIO SAMBAJON, RONALD SAMBAJON, CRISANTO CONOS, and FREDILYN BACULBAS,

A.C. No. 7062 [Formerly CBD Case No. 04-1355]

Complainants,

Present:

- versus QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

ATTY. JOSE A. SUING,

Promulgated:

Respondent. September 26, 2006 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.: Complainants, via a complaint[1] filed before the Integrated Bar of the Philippines (IBP), have sought the disbarment of Atty. Jose A. Suing (respondent) on the grounds of deceit, malpractice, violation of Lawyer’s Oath and the Code of Professional Responsibility.[2]

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Herein complainants were among the complainants in NLRC Case No. 00-0403180-98, “Microplast, Inc. Workers Union, Represented by its Union President Zoilo Ardan, et al. v. Microplast, Incorporated and/or Johnny Rodil and Manuel Rodil ,” for Unfair Labor Practice (ULP)

and Illegal Dismissal, while respondent was the counsel for the

with NLRC Case No.

therein respondents. Said case was consolidated

00-04-03161-98, “Microplast Incorporated v. Vilma Ardan, et al.,” for Illegal Strike.

By Decision of August 29, 2001,[3] Labor Arbiter Ariel Cadiente Santos dismissed the Illegal Strike case, and declared the employerclients of respondent guilty of ULP. Thus, the Labor Arbiter disposed:

WHEREFORE, premises considered, the complaint for illegal strike is dismissed for lack of merit.

Respondents Microplast, Inc., Johnny Rodil and Manuel Rodil are hereby declared guilty of Unfair Labor Practice for union busting and that the dismissal of the nine (9) complainants are declared illegal. All the respondents in NLRC Case No. 00-04-03161-98 for illegal dismissal are directed to reinstate all the complainants to their former position with full backwages from date of dismissal until actual reinstatement computed as follows:

xxxx

3. CRISANTO CONOS Backwages:

Basic Wage: 2/21/98 – 10/30/99 = 20.30 mos. P198.00 x 26 days x 20.30 = P104, 504.40 10/31/99 - 10/31/00 = 12 mos. P223.50 x 26 days x 12 =

69, 732.00

11/01/00 - 8/30/01 = 10 mos. P250.00 x 26 days x 10 =

65,000.00 P239,236.40

13th Month Pay: 1/12 of P239,236.40 = SILP 2/16/98 - 12/31/98 = 10.33 mos.

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19,936.36

P198.00 x 5 days x 10.33/ 12 = 852.22 1/1/99 - 12/31/99 = 12mos. P223.50 x 5 days x 12/12 = 1,117.50 1/1/00 - 10/30/01 = 20 mos. P250.00 x 5 days x 20/12 = 2,083.33 4,053.05

P263,225.81 xxxx

7. RONALD SAMBAJON (same as Conos)

263,225.81

8.FREDELYN BACULBAS (same as Conos) 9. RENEIRO SAMBAJON (same as Conos) Total Backwages

263,225.81 263,225.81 P2,370,674.38

Respondents are jointly and severally liable to pay the above-mentioned backwages including the various monetary claims stated in the Manifestation dated August 24, 1998 except payment of overtime pay and to pay 10% attorney’s fees of all sums owing to complainants. [4] (Emphasis and underscoring supplied)

The Decision having become final and executory, the Labor Arbiter issued on September 2, 2003 a Writ of Execution.[5]

In the meantime, on the basis of individual Release Waiver and Quitclaims dated February 27, 2004 purportedly signed and sworn to by seven of the complainants in the ULP and Illegal Dismissal case before Labor Arbiter Santos in the presence of respondent, the Labor Arbiter dismissed said case insofar as the seven complainants were concerned, by Order dated March 9, 2004. [6]

Herein complainants, four of the seven who purportedly executed the Release Waiver and Quitclaims, denied having signed and sworn to before the Labor Arbiter the said documents or having received the considerations therefor. Hence, spawned the administrative complaint at bar, alleging that respondent, acting in collusion with his clients Johnny and Manuel Rodil, “frustrated” the implementation of the Writ of Execution by presenting before the Labor Arbiter the spurious documents.

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In a related move, complainants also filed a criminal complaint for Falsification against respondent, together with his clients Johnny and Manuel Rodil, before the Prosecutor’s Office of Quezon City where it was docketed as I.S. No. 04-5203.[7]

In his Report and Recommendation[8] dated September 27, 2005, IBP Commissioner Salvador B. Hababag, who conducted an investigation of the administrative complaint at bar, recommended that respondent be faulted for negligence and that he be reprimanded therefor with warning, in light of his following discussion:

The issue to be resolved is whether or not respondent can be disbarred for his alleged manipulation of four alleged RELEASE WAIVER AND QUITCLAIM by herein complainants who subsequently disclaimed the same as bogus and falsified. A lawyer takes an oath when he is admitted to the Bar. By doing so 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. Mindful of the fact that the present proceedings involve, on the one hand, the right of a litigant to seek redress against a member of the Bar who has, allegedly caused him damaged, either through malice or negligence, while in the performance of his duties as his counsel, and, on the other, the right of that member of the Bar to protect and preserve his good name and reputation, we have again gone over and considered [the] aspects of the case. All the cases protesting and contesting the genuineness, veracity and due execution of the questioned RELEASE WAIVER AND QUITCLAIM namely: Urgent Ex-Parte Motion to Recall, Appeal and Falsification are PENDING resolution in their respective venues. Arbiter Ariel Cadiente Santos, who was supposed to know the identities of the herein complainants is not impleaded by the complainants when it was his solemn duty and obligation to ascertain true and real identities of person executing Release Waiver with Quitclaim. The old adage that in the performance of an official duty there is that presumption of regularity unless proven otherwise, such was proven in the January 28, 2005 clarificatory questioning . . . : xxxx . . . In the case at bar, the question of whether or not respondent actually committed the despicable act would seem to be fairly debatable under the circumstances.[9] (Emphasis and underscoring supplied)

The Board of Governors of the IBP, by Resolution No. XVII-2005-226, approved and adopted the Report and Recommendation of Commissioner Hababag.

After the records of the case were forwarded to the Office of the Bar Confidant (OBC), the Director for Bar Discipline of the IBP [10] transmitted additional records including a Motion to Amend the Resolution No. XVII-2005-226[11] filed by respondent.

One of the complainants, Renerio Sambajon (Sambajon), by Petition[12] filed before the OBC, assailed the IBP Board Resolution. The Petition was filed three days after the 15-day period to assail the IBP Resolution. Sambajon explains that while his counsel received the

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Resolution on February 27, 2006, he only learned of it when he visited on March 16, 2006 his counsel who could not reach him, he (Sambajon) having transferred from one residence to another.

Giving Sambajon the benefit of the doubt behind the reason for the

3-day delay in filing the present petition, in the interest of justice,

this Court gives his petition due course.

In respondent’s Motion to Amend the IBP Board Resolution, he does not deny that those whom he met face to face before Commissioner Hababag were not the same persons whom he saw before Labor Arbiter Santos on February 27, 2004. [13] He hastens to add though that he was not familiar with the complainants as they were not attending the hearings before Arbiter Santos.[14] Complainants[15] and their former counsel Atty. Rodolfo Capocyan[16] claim otherwise, however. And the Minutes[17] of the proceedings before the National Conciliation Mediation Board in a related case, NCMB-NCR-NS-02-081-98, “Re: Microplast, Inc., Labor Dispute,” which minutes bear respondent’s and complainants’ signatures, belie respondent’s claim that he had not met complainants before.

Respondent, who declared that he went to the Office of the Labor Arbiter on February 27, 2004 on the request of his clients who “told him that on February 27, 2004 the seven claimants w[ould] be at the office of Arbiter Santos [to] submit their respective quitclaims and waivers,” heaps on the Labor Arbiter the responsibility of ascertaining the identity of the parties who executed the Release Waiver and Quitclaims. But respondent himself had the same responsibility. He was under obligation to protect his clients’ interest, especially given the amount allegedly given by them in consideration of the execution of the documents. His answers to the clarificatory questions of Commissioner Hababag do not, however, show that he discharged such obligation.

COMM. HABABAG:

But is it not a fact [that it is] also your duty to ask.. that the

money of your client would go to the deserving employee?

ATTY. SUING:

I did not do that anymore, Your Honor, because there was already as you call it before a precedent in February of 1998 when my client directly made settlement to the nine or eight of the seventeen original complainants, Your Honor, and I did not participate. Hindi po ako nakialam don sa kanilang usapan because it is my belief that the best way, Your Honor, to have a dispute settled between the parties is that we let them do the discussion, we’ll let them do the settlement because sometimes you know, Your Honor, sad to say, when lawyers are involved in a matters [sic] of settlement the dispute does not terminate as in this case, Your Honor.

xx xx

COMM. HABABAG:

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Yes. What made you appear on said date and time before Arbiter Santos?

ATTY. SUING:

I was called by my client to go to the office of Arbiter Santos, number one, to witness the signing of the documents of Quitclaim and Waiver; number 2, so that according to them someone as a lawyer will represent them in that proceedings.

COMM. HABABAG:

My query, did it not surprise you that no money was given Release?

to you and yet there would be a signing of Quitclaim Receipt and

ATTY. SUING:

I am not, your Honor, because it happened before and there

were no complaints, Your Honor.

COMM. HABABAG:

Just because it happened before you did not bother to see to it that there is a voucher so you just rely on your precedent, is that what you mean?

ATTY. SUING:

Yes, Your Honor, because I always believe that the parties Honor.

who are talking and it is my client who knows them better than I do, Your

COMM. HABABAG:

So, you just followed the instruction of your client to be present at Arbiter Cadiente Santos office because there would be signing of Quitclaim Receipt and Release, it that clear?

ATTY. SUING:

Yes, Your Honor.

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COMM. HABABAG:

[You] [d]id not bother to ask your client where is the money

intended for the payment of these workers?

ATTY. SUING:

I did not ask.

COMM. HABABAG:

You did not asked [sic] your client who will prepare the

documents?

ATTY. SUING:

As far as the documents are concerned, Your Honor.

COMM. HABABAG:

The Quitclaim Receipt and Release?

ATTY. SUING:

Yes, Your Honor, I remember this. They asked me before

COMM. HABABAG:

When you say they whom are you referring to?

ATTY. SUING:

I’m referring to my client, Your Honor.

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February of 1998.

COMM. HABABAG:

They asked me attorney can you please prepare us a document of Quitclaim and Waiver or give us a simple [ sic] of Quitclaim and Waiver. I do recall that I made one but this document, Your Honor, is only a single document where all the signatories named are present because my purpose there really, Your Honor, is that so that each of them will be there together and they will identify themselves, see each other para ho siguradong sila-sila yong magkakasama at magkakakilanlan. x x x x And when the signing took place in February of 2004 it was made for any [sic] individual, Your Honor, no longer the document that I prepared when all of the seven will be signing in one document.

COMM. HABABAG:

Okay. You did not inquire from your client whom [sic] made the changes?

ATTY. SUING: I did not anymore because, Your Honor, at the time when I was there, there are already people there, the seven complainants plus another woman.[18] (Emphasis and underscoring supplied)

The Code of Professional Responsibility provides:

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

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

xxxx

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

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To be sure, respondent’s client Manuel Rodil did not request him to go to the Office of Labor Arbiter Cadiente to be a mere passive witness to the signing of the Release Waiver and Quitclaims. That he was requested to go there could only mean that he would exert vigilance to protect his clients’ interest. This he conceded when he acknowledged the purpose of his presence at the Office of Labor Arbiter Santos, thus:

ATTY. SUING:

To go there, Your Honor, and represent them and see that these document[s] are properly signed and that these people are properly identified and verified them in front of Arbiter Ariel Cadiente Santos.[19] (Emphasis and underscoring supplied)

That there was an alleged precedent in 1998 when a group of complainants entered into a compromise agreement with his clients in which he “did not participate” and from which no problem arose did not excuse him from carrying out the admitted purpose of going to the Labor Arbiter’s office — “that [the complainants] are properly identified . . . in front of [the] Arbiter.”

Besides, by respondent’s own information, Labor Arbiter Santos was entertaining doubts on the true identity of those who executed the Release Waiver and Quitclaims.[20] That should have alerted him to especially exercise the diligence of a lawyer to protect his clients’ interest. But he was not and he did not.

Diligence is “the attention and care required of a person in a given situation and is the opposite of negligence.” A lawyer serves his client with diligence by adopting that norm of practice expected of men of good intentions. He thus owes entire devotion to the interest of his client, warm zeal in the defense and maintenance of his rights, and the exertion of his utmost learning, skill, and ability to ensure that nothing shall be taken or withheld from him, save by the rules of law legally applied. It is axiomatic in the practice of law that the price of success is eternal diligence to the cause of the client.

The practice of law does not require extraordinary diligence (exactissima diligentia) or that “extreme measure of care and caution which persons of unusual prudence and circumspection use for securing and preserving their rights. All that is required is ordinary diligence (diligentia) or that degree of vigilance expected of a bonus pater familias. x x x[21] (Italics in the original; underscoring supplied)

And this Court notes the attempt of respondent to influence the answers of his client Manuel Rodil when the latter testified before Commissioner Manuel Hababag:

COMM. HABABAG: May pinirmahan dito na Quitclaim Receipt and Release. Ito ho ba sinong may gawa nitong Receipt Waiver and Quitclaim?

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MR. RODIL: Sila po.

COMM. HABABAG: Ibig mong sabihin ibinigay sa yo to ng complainant o sinong nag-abot sa iyo nitong Receipt Waiver and Quitclaim?

MR. RODIL: Si Atty. Suing po.

ATTY. SUING: In fact, ang tanong sa iyo kung ibinigay daw sa iyo yong mga dokumentong ito or what?

COMM. HABABAG: Okay, uulitin ko ha, tagalog na ang tanong ko sa iyo ha hindi na English. Ito bang Release Waiver and Quitclaim sino ang may gawa nito, sino ang nagmakinilya nito?

MR. RODIL: Kami yata ang gumawa niyan.

COMM. HABABAG: Pag sinabi mong kami yata ang may gawa sino sa inyong mga officer, tauhan o abogado ang gumawa nito?

MR. RODIL: Matagal na ho yan eh.

xxxx

COMM. HABABAG: Okay. Pangalawang gusto kong itanong. Sino ang naghatid nito kay Ariel Cadiente Santos para pirmahan ni Ariel Cadiente Santos?

MR. RODIL:

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Si attorney po.

ATTY. SUING: Wait. I did not bring the documents. The Commissioner is asking kung sino ang nagdala ng mga dokumento?

MR. RODIL: Yong mga tao.

xxxx

COMM. HABABAG: Simple ang tanong ko ha. Intindihin mo muna. Kanino mo inabot ang bayad sa nakalagay dito sa Release waiver and Quitclaim?

MR. RODIL: Kay attorney po.

COMM. HABABAG: Pag sinabi mong kay attorney sinong tinutukoy mong attorney?

ATTY. SUING: Yong ibinigay na pera pambayad saan, yon ang tanong.

COMM. HABABAG: Sundan mo ang tanong ko ha. Ako ang nagtatanong hindi ang abogado mo.

MR. RODIL: Opo.

COMM. HABABAG: Huwag kang tatawa. I’m reminding you serious tayo dito.

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MR. RODIL:

Opo serious po.

COMM. HABABAG:

Sabi mo may inabutan kang taong pera?

MR. RODIL: Opo.

COMM. HABABAG:

Ang sagot mo kay attorney. Sinong attorney ang tinutukoy mo?

MR. RODIL: Atty. Suing po.

COMM. HABABAG: Okay.

ATTY. SUING: Your Honor,…

COMM. HABABAG: Pabayaan mo muna. I’ll come to that. Magkano kung iyong natatandaan ang perang inabot kay Atty. Suing?

MR. RODIL: Yan ang hindi ko matandaan.

x x x x[22] (Emphasis and underscoring supplied)

Thus, not only did respondent try to coach his client or influence him to answer questions in an apparent attempt not to incriminate

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him (respondent). His client contradicted respondent’s claim that the Release Waiver and Quitclaim which he (respondent) prepared was not the one presented at the Arbiter’s Office, as well as his implied claim that he was not involved in releasing to the complainants the money for and in consideration of the execution of the documents.

As an officer of the court, a lawyer is called upon to assist in the administration of justice. He is an instrument to advance its cause. Any act on his part that tends to obstruct, perverts or impedes the administration of justice constitutes misconduct.[23] While the Commission on Bar Discipline is not a court, the proceedings therein are nonetheless part of a judicial proceeding, a disciplinary action being in reality an investigation by the Court into the misconduct of its officers or an examination into his character.[24]

In Bantolo v. Castillon, Jr.[25] the respondent lawyer was found guilty of gross misconduct for his attempts to delay and obstruct the investigation being conducted by the IBP. Nonetheless, this Court found that a suspension of one month from the practice of law was enough to give him “the opportunity to retrace his steps back to the virtuous path of the legal profession.”

While the disbarment of respondent is, under the facts and circumstances attendant to the case, not reasonable, neither is reprimand as recommended by the IBP. This Court finds that respondent’s suspension from the practice of law for six months is in order.

WHEREFORE, respondent, Atty. Jose A. Suing, is found GUILTY of negligence and gross misconduct and is SUSPENDED from the practice of law for a period of Six (6) Months, with WARNING that a repetition of the same or similar acts will be dealt with more severely.

Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts throughout the country.

SO ORDERED. Adm. Case No. 6266

November 16, 2006

ESTELA ANASTACIO-BRIONES, vs. ATTY. ALFREDO A. ZAPANTA, Respondent. DECISION QUISUMBING, J.:

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Complainant,

This is a disbarment complaint filed by Estela Anastacio-Briones against respondent Atty. Alfredo A. Zapanta for abandonment and neglect of duties. In her Complaint1 dated December 1, 2003, Estela Anastacio-Briones stated that she engaged the services of respondent to file three civil cases involving a parcel of land located in Antipolo City. The cases were then consolidated 2 before the Regional Trial Court of Antipolo City, Branch 73. Complainant averred that on October 25, 2002, she showed respondent a copy of "Discharge and Appearance of Counsels with Ex-parte Motion to Cancel the October 25, 2002 Hearing" she intended to file that day. She claimed that even prior to the hearing, she informed respondent of her joint venture agreement with a real estate developer who offered the services of its own counsel. Complainant added that respondent requested her not to file it and he would submit a withdrawal of appearance instead. Complainant also informed respondent that she could not attend the hearing on January 6, 2003 because of other commitments. Respondent allegedly assured her that he would be present in the hearing. On January 6, 2003, both respondent and complainant failed to appear in the hearing. As a result, the trial court declared them to have waived their right to present further witnesses and directed them to file their formal offer of evidence within ten days from notice. The trial court noted that respondent received its Order on January 24, 2003, but respondent did not act on it within the ten-day period. Instead of filing a formal offer of evidence, respondent filed a withdrawal of appearance on March 5, 2003. On March 10, 2003, the trial court dismissed the case with prejudice.3 On May 5, 2003, complainant learned that the cases were dismissed and that respondent did not attend the January 6, 2003 hearing and did not file a formal offer of evidence. Complainant prayed that respondent be disbarred for abandoning her case and withdrawing his appearance as counsel without her knowledge. In his Comment4 dated June 10, 2004, respondent countered that he was discharged as complainant’s counsel after the October 25, 2002 hearing. Respondent added that he prepared a withdrawal of appearance on October 30, 2002 but complainant ignored his several requests to sign it in his office. Nevertheless, he claimed he filed a withdrawal of appearance on March 5, 2003 without complainant’s conformity. Respondent denied promising complainant that he would attend the January 6, 2003 hearing. According to him, complainant informed his secretary that her new lawyer would attend. Respondent claimed further that complainant’s new lawyer should be faulted for belatedly filing an entry of appearance and a motion for reconsideration. Respondent claimed that he was merely being used as a scapegoat for complainant’s own negligence in pursuing the cases. In a Resolution5 dated September 20, 2004, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. In his Report and Recommendation dated May 26, 2005, Commissioner Dennis A.B. Funa of the IBP Commission on Bar Discipline found respondent liable for negligence in the performance of his duties as counsel, and for violating the Code of Professional Responsibility. Commissioner Funa recommended respondent’s suspension for three months from the practice of law. In Resolution No. XVII-2005-104 dated October 22, 2005, the IBP Board of Governors adopted and approved the report and recommendation of Commissioner Funa. On November 15, 2005, the IBP Board of Governors forwarded the Report to this Court pursuant to Rule 139-B of the Rules of Court. On January 4, 2006, respondent filed with this Court a motion for reconsideration. In its comment, the IBP, through Commissioner Funa, recommended the denial of the motion. We sustain the findings of the IBP that respondent was remiss in performing his duties as counsel of complainant. The Court finds respondent liable for negligence and for violation of Canon 18 6 specifically Rules 18.037 and 18.048 of the Code of Professional Responsibility. Section 26, Rule 138 of the Rules of Court 9 provides the proper procedure for a lawyer’s withdrawal as counsel in a case. Unless the procedure prescribed in the abovementioned section is complied with, the attorney of record is regarded as the counsel who should be

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served with copies of the judgments, orders and pleadings and who should be held responsible for the case. 10 For its part, the court could recognize no other representation on behalf of the client except such counsel of record until a formal substitution of attorney is effected. 11 In Orcino v. Gaspar,12 we held that until a lawyer’s withdrawal shall have been approved, he remains counsel of record and is expected by his client as well as by the court to do what the interests of his client require. He must still appear on the date of hearing for the attorneyclient relation does not terminate formally until there is a withdrawal of his appearance on record. In this case, respondent admitted that he did not attend the January 6, 2003 hearing despite being notified by the court.1âwphi1 His claim that he was already discharged as counsel as early as October 25, 2002 is negated by the record that he withdrew his appearance only on March 5, 2003. Until his dismissal or withdrawal was made of record, any judicial notice sent to him was binding upon his client even though as between them the professional relationship may have been terminated. 13 Thus, unless properly relieved, respondent is responsible for the conduct of the cases and his failure to attend the hearing and comply with the trial court’s directive to file a formal offer of evidence constitute inexcusable negligence. Moreover, respondent’s negligence is not excused by his claim that he had prepared his withdrawal of appearance as early as October 30, 2002 but complainant refused to sign it. In Macarilay v. Seriña,14 with similar facts, we rejected the counsel’s excuse for failing to file the complaints, although the complaints were finished, due to his client’s refusal to sign them. Certainly not to be overlooked is the duty of an attorney to inform his client of the developments of the case. 15 We note that it was only on May 5, 2003 that complainant learned that she defaulted in the case. As a lawyer mindful of the interest of his client, respondent should have informed the complainant of the court’s order addressed to him, especially if he considered himself discharged in order for complainant and her new counsel to be guided accordingly. The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts. The penalties for a lawyer’s failure to file a brief or other pleading range from reprimand, warning with fine, suspension and, in grave cases, disbarment.16 In this case, this Court sustains the recommendation of the IBP for respondent’s suspension of three months. WHEREFORE, respondent Atty. Alfredo A. Zapanta is hereby found GUILTY of negligence and is meted the penalty of SUSPENSION from the practice of law for THREE 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 this country for their information and guidance. A.C. No. 7298 June 25, 2007 [Formerly CBD Case No. 05-1565] FERNANDO MARTIN O. PENA, complainant, vs. ATTY. LOLITO G. APARICIO, respondent. RESOLUTION TINGA, J.: In this administrative complaint, a lawyer is charged with violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility for writing a demand letter the contents of which threatened complainant with the filing of criminal cases for tax evasion and falsification of documents. Atty. Lolito G. Aparicio (respondent) appeared as legal counsel for Grace C. Hufana in an illegal dismissal case before the National Labor Relations Commission (NLRC). Sometime in August 2005, complainant Fernando Martin O. Pena, as President of MOF Company, Inc. (Subic), received a notice from the Conciliation and Mediation Center of the NLRC for a mediation/conciliation conference. In the conference, respondent, in behalf of his client, submitted a claim for separation pay arising from her alleged illegal dismissal. Complainant rejected the claim as being baseless. Complainant thereafter sent notices to Hufana for the latter to explain her absences and to return to work. In reply to this return to work notice, respondent wrote a letter to complainant reiterating his client's claim for separation pay. The letter also contained the following threat to the company:

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BUT if these are not paid on August 10, 2005, we will be constrained to file and claim bigger amounts including moral damages to the tune of millions under established precedence of cases and laws. In addition to other multiple charges like: 1. Tax evasion by the millions of pesos of income not reported to the government. 2. Criminal Charges for Tax Evasion 3. Criminal Charges for Falsification of Documents 4. Cancellation of business license to operate due to violations of laws. These are reserved for future actions in case of failure to pay the above amounts as settlements in the National Labor Relations Commission (NLRC).1 Believing that the contents of the letter deviated from accepted ethical standards, complainant filed an administrative complaint 2 with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Respondent filed an Answer with Impleader (Motion to Dismiss and Counterclaims)3 claiming that Atty. Emmanuel A. Jocson, complainant's legal counsel, also played an important part in imputing the malicious, defamatory, and fabricated charges against him. Respondent also pointed out that the complaint had no certification against forum shopping and was motivated only to confuse the issues then pending before the Labor Arbiter. By way of counterclaim, respondent asked for damages and for the disbarment of Atty. Jocson. Respondent also asked the IBP to endorse the prosecution of Atty. Jocson for Usurpation of Public Functions4 and for violation of the Notarial Law.5 A mandatory conference was held on 6 December 2005 but respondent failed to appear. 6 Both parties were thereafter required to submit their position papers. The Report and Recommendation7 of Investigating Commissioner Milagros V. San Juan found that complainant, failed to file his position paper and to comply with Administrative Circular No. 04-94 requiring a certificate against forum shopping and, accordingly, recommended the dismissal of the complaint against respondent. On 26 May 2006, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner. 8 On 10 July 2006, the IBP Commission on Bar Discipline transmitted to the Supreme Court the notice of said Resolution and the records of the case. 9 Thereafter, on 18 August 2006, respondent filed with the IBP a Motion for Reconsideration (for Modification of Decision) 10 reiterating his claim of damages against complainant in the amount of four hundred million pesos (P400,000,000.00), or its equivalent in dollars, for filing the "false, malicious, defamers [sic], fraudulent, illegal fabricators [sic], malevolent[,] oppressive, evasive filing [of] a groundless and false suit." 11 Complainant thereafter filed this Petition for Review (of the Resolution of the IBP Commission on Bar Discipline) 12 alleging that he personally submitted and filed with the IBP his position paper, after serving a copy thereof on respondent by registered mail. He further alleges that he was deprived of his right to due process when the IBP dismissed his complaint without considering his position paper and without ruling on the merits thereof. Complainant accordingly prays for the reversal and setting aside of the 26 May 2006 Resolution 13 of the IBP Board of Governors and the remand of the case to the IBP Commission on Bar Discipline for proper adjudication and disposition on the merits. Based on the records, there is truth to complainant's assertion that he filed his position paper on 21 December 2005, after serving a copy of the same to respondent. The IBP stamp on the front page of said document shows that it was received by the IBP on 21 December 2005. The registry receipt attached to the same document also shows that it was sent by registered mail to respondent on the same date. 14 Complainant, however, omitted to offer any explanation in his petition before this Court for his failure to attach a certification against forum shopping in his complaint against respondent. The requirement of a certification against forum shopping was originally required by Circular No. 28-91, dated 8 February 1994, issued by this Court for every petition filed with the Court or the Court of Appeals. Administrative Circular No. 04-94, made effective on 1 April 1994, expanded the certification requirement to include cases filed in courts and quasi-judicial agencies below this Court and the Court of Appeals. Ultimately, the Court adopted paragraphs (1) and (2) of Administrative Circular No. 04-94 to become Section 5, Rule 7 of the 1997 Rules of Civil Procedure. 15 Said rule states that a violation thereof would constitute contempt of court and be cause for the summary

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dismissal of both petitions without prejudice to the taking of appropriate action against the counsel of the party concerned. 16 The Investigating Commissioner and the IBP Board of Governors took against complainant his failure to attach the certification against forum shopping to his complaint and consequently dismissed his complaint. This Court, however, disagrees and, accordingly, grants the petition. However, a remand of the case to the IBP would unduly prolong its adjudication. The Court's determination is anchored on the sui generis nature of disbarment proceedings, the reasons for the certification against forum shopping requirement, complainant's subsequent compliance with the requirement, and the merit of complainant's complaint against respondent. The Court, in the case of In re Almacen,17 dwelt on the sui generis character of disciplinary proceedings against lawyers, thus: Disciplinary 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 is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its 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 proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.18 [Emphasis supplied] In view of the nature of disbarment proceedings, the certification against forum shopping to be attached to the complaint, if one is required at all in such proceedings, must refer to another administrative case for disciplinary proceedings against the same respondent, because such other proceedings or "action" is one that necessarily involves "the same issues" as the one posed in the disbarment complaint to which the certification is supposedly to be attached. Further, the rationale for the requirement of a certification against forum shopping is to apprise the Court of the pendency of another action or claim involving the same issues in another court, tribunal or quasi-judicial agency, and thereby precisely avoid the forum shopping situation. Filing multiple petitions or complaints constitutes abuse of court processes, 19 which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.20 Furthermore, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue. 21 It is in this light that we take a further look at the necessity of attaching a certification against forum shopping to a disbarment complaint. It would seem that the scenario sought to be avoided, i.e., the filing of multiple suits and the possibility of conflicting decisions, rarely happens in disbarment complaints considering that said proceedings are either "taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person." 22 Thus, if the complainant in a disbarment case fails to attach a certification against forum shopping, the pendency of another disciplinary action against the same respondent may still be ascertained with ease. We have previously held that the rule requiring a certification of forum shopping to accompany every initiatory pleading, "should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure—which is to achieve substantial justice as expeditiously as possible." 23 At any rate, complainant's subsequent compliance with the requirement cured the supposed defect in the original complaint. The records show that complainant submitted the required certification against forum shopping on 6 December 2006 when he filed his Comment/Opposition to respondent's Motion to Dismiss the present petition. Finally, the intrinsic merit of complainant's case against respondent justifies the grant of the present petition. Respondent does not deny authorship of the threatening letter to complainant, even spiritedly contesting the charge that the letter is unethical. Canon 19 of the Code of Professional Responsibility states that "a lawyer shall represent his client with zeal within the bounds of the

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law," reminding legal practitioners that a lawyer's duty is not to his client but to the administration of justice; to that end, his client's success is wholly subordinate; and his conduct ought to and must always be scrupulously observant of law and ethics. 24 In particular, Rule 19.01 commands that a "lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding." Under this Rule, a lawyer should not file or threaten to file any unfounded or baseless criminal case or cases against the adversaries of his client designed to secure a leverage to compel the adversaries to yield or withdraw their own cases against the lawyer's client.25 In the case at bar, respondent did exactly what Canon 19 and its Rule proscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts they propose as settlement, he would file and claim bigger amounts including moral damages, as well as multiple charges such as tax evasion, falsification of documents, and cancellation of business license to operate due to violations of laws. The threats are not only unethical for violating Canon 19, but they also amount to blackmail. Blackmail is "the extortion of money from a person by threats of accusation or exposure or opposition in the public prints,…obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice." In common parlance and in general acceptation, it is equivalent to and synonymous with extortion, the exaction of money either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently, it is extorted by threats, or by operating on the fears or the credulity, or by promises to conceal or offers to expose the weaknesses, the follies, or the crime of the victim.26 In Sps. Boyboy v. Atty. Yabut, Jr., 27 we held that "[a]n accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondent's disbarment from the practice of law, but also a possible criminal prosecution." 28 While the respondent in Boyboy was exonerated for lack of evidence, the same may not be said of respondent in the present case for he admits to writing the offensive letter. In fact, respondent does not find anything wrong with what he wrote, dismissing the same as merely an act of pointing out massive violations of the law by the other party, and, with boldness, asserting that "a lawyer is under obligation to tell the truth, to report to the government commission of offenses punishable by the State." 29 He further asserts that the writing of demand letters is a standard practice and tradition and that our laws allow and encourage the settlement of disputes. Respondent's assertions, however, are misleading, for it is quite obvious that respondent's threat to file the cases against complainant was designed to secure some leverage to compel the latter to give in to his client's demands. It was not respondent's intention to point out complainant's violations of the law as he so gallantly claims. Far from it, the letter even contains an implied promise to "keep silent" about the said violations if payment of the claim is made on the date indicated. Indeed, the writing of demand letters is a standard practice and tradition in this jurisdiction. It is usually done by a lawyer pursuant to the principal-agent relationship that he has with his client, the principal. Thus, in the performance of his role as agent, the lawyer may be tasked to enforce his client's claim and to take all the steps necessary to collect it, such as writing a letter of demand requiring payment within a specified period. However, the letter in this case contains more than just a simple demand to pay. It even contains a threat to file retaliatory charges against complainant which have nothing to do with his client's claim for separation pay. The letter was obviously designed to secure leverage to compel complainant to yield to their claims. Indeed, letters of this nature are definitely proscribed by the Code of Professional Responsibility. Respondent cannot claim the sanctuary provided by the privileged communication rule under which a private communication executed in the performance of a legal duty is not actionable. The privileged nature of the letter was removed when respondent used it to blackmail complainant and extort from the latter compliance with the demands of his client. However, while the writing of the letter went beyond ethical standards, we hold that disbarment is too severe a penalty to be imposed on respondent, considering that he wrote the same out of his overzealousness to protect his client's interests. Accordingly, the more appropriate penalty is reprimand. WHEREFORE, premises considered, the petition is granted. The 26 May 2006 Resolution of the IBP Board of Governors is hereby REVERSED and SET ASIDE. Respondent Atty. Lolito G. Aparicio is hereby found liable for violation of Rule 19.01 of Canon 19 of the Code of Professional Responsibility, and is accordingly meted out the penalty of REPRIMAND, with the STERN WARNING that a

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repetition of the same or similar act will be dealt with more severely. VALERIANA U. DALISAY,

A.C. No. 5655

Complainant, Present:

PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, -versus-

CORONA, CARPIO MORALES, and GARCIA, JJ.

Promulgated: ATTY. MELANIO MAURICIO, JR., Respondent.

January 23, 2006

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

RESOLUTION

SANDOVAL-GUTIERREZ, J.:

At bar is a motion for reconsideration of our Decision dated April 22, 2005 finding Atty. Melanio “Batas” Mauricio, Jr., respondent, guilty of malpractice and gross misconduct and imposing upon him the penalty of suspension from the practice of law for a period of six (6) months.

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A brief revisit of facts is imperative, thus:

On October 13, 2001, Valeriana U. Dalisay, complainant, engaged respondent’s services as counsel in Civil Case No. 00-044, entitled “Lucio De Guzman, etc., complainants, v. Dalisay U. Valeriana, respondent,” pending before the Municipal Trial Court, Branch 1, Binangonan, Rizal. Notwithstanding his receipt of documents and attorney’s fees in the total amount of P56,000.00 from complainant, respondent never rendered legal services for her. As a result, she terminated the attorney-client relationship and demanded the return of her money and documents, but respondent refused. On January 13, 2004, Investigating Commissioner Lydia A. Navarro of the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, found that “for the amount of P56,000.00 paid by the complainant x x x, no action had been taken nor any pleadings prepared by the respondent except his alleged conferences and opinions rendered when complainant frequented his law office.” She recommended that respondent be required to refund the amount of P56,000.00 to the complainant, and surprisingly, that the complaint be dismissed. On February 27, 2004, the IBP Board of Governors passed Resolution No. XVI-2004-121, adopting and approving in toto Commissioner Navarro’s Report and Recommendation. On April 22, 2005, we rendered the assailed Decision. Incidentally, upon learning of our Decision, respondent went to the MTC, Branch I, Binangonan, Rizal to verify the status of Civil Case No. 00-044. There, he learned of the trial court’s Decision dated December 6, 2001 holding that “the tax declarations and title” submitted by complainant “are not official records of the Municipal Assessor and the Registry of Deed.” Thereupon, respondent filed a Sworn Affidavit Complaint[1] against complainant charging her with violations of Article 171[2] and 172,[3] and/or Article 182[4] of the Revised Penal Code. He alleged that complainant offered tampered evidence. In this motion for reconsideration, respondent raises the following arguments: First, complainant did not engage his services as counsel in Civil Case No. 00-044. She hired him for the purpose of filing two new petitions, a petition for declaration of nullity of title and a petition for review of a decree. Second, Civil Case No. 00-044 was “considered submitted for decision” as early as August 6, 2001, or more than two months prior to October 13, 2001, the date he was engaged as counsel, hence, “he could not have done anything anymore” about it.

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Third, complainant refused to provide him with documents related to the case, preventing him from doing his job. And fourth, complainant offered tampered evidence in Civil Case No. 00-004, prompting him to file falsification cases against her. In her opposition to the motion, complainant contends that:

(1) respondent violated the principle of confidentiality between a

lawyer and his client when he filed falsification charges against her; (2) respondent should have returned her money; (3) respondent should have verified the authenticity of her documents earlier if he really believed that they are falsified; and (4) his refusal to return her money despite this Court’s directive constitutes contempt. We deny respondent’s motion for reconsideration. It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. But once he accepts money from a client, an attorney-client relationship is established, giving rise to the duty of fidelity to the client’s cause.[5] From then on, he is expected to be mindful of the trust and confidence reposed in him. He must serve the client with competence and diligence, and champion the latter’s cause with wholehearted devotion.[6] Respondent assumed such obligations when he received the amount of P56,000.00 from complainant and agreed to handle Civil Case No. 00-044. Unfortunately, he had been remiss in the performance of his duties. As we have ruled earlier, “there is nothing in the records to show that

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he (respondent) entered his appearance as counsel of record for complainant in Civil Case No. 00-044.” Neither is there any evidence nor pleading submitted to show that he initiated new petitions. With ingenuity, respondent now claims that “complainant did not engage his services for Civil Case No. 00-044” but, instead, she engaged him for the filing of two new petitions. This is obviously a last-ditch attempt to evade culpability. Respondent knows very well that if he can successfully disassociate himself as complainant’s counsel in Civil Case No.00-044, he cannot be held guilty of any dereliction of duties. But respondent’s current assertion came too late in the day. He is already bound by his previous statements. In his Verified Comment on the Affidavit-Complaint,[7] he categorically stated that complainant engaged his services in Civil Case No. 00-044, originally handled by Atty. Oliver Lozano, thus: 4.a. Complainant was referred to the Respondent by Atty. Oliver Lozano.

4.b. The referral intrigued Respondent no end, simply because Atty. Oliver Lozano is a bright lawyer and is very much capable of handling Civil Case No. 00-044.

4.c. Respondent-out of respect from Atty. Oliver Lozano – did not inquire the reason for the referral. But he was made to understand that he was being referred because Atty. Oliver Lozano believed that Respondent would be in a better position to prosecute and/or defend the Complainant in Civil Case No. 00-044.

x x x

x

x x

5.c. Complainant went to the law office of Respondent on October 13, 2001 and demanded that he provides her with free legal service.

x x x

x

x x

5.e. Respondent, however, told Complainant that the case (Civil Case No. 00-044) would not entitle her to a free legal service and advised her to just re-engage the services of Atty. Oliver Lozano.

5.f. Undaunted, Complainant asked Respondent to assess her case and how she and her lawyer should go prosecuting and/or defending her position therein.

5.g. Honestly believing that Complainant was no longer represented by counsel in Civil Case No. 00-044 at that time, Respondent gave his professional opinion on the factual and legal matters surrounding the said case.

5.h. Apparently impressed with the opinion of the Respondent, Complainant became even more adamant in asking the former to represent her in Civil Case No. 00-044.

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5.i. Respondent then told Complainant that she would be charged as a regular client is she insists in retaining his services.

5.j. It was at this juncture that Complainant asked Respondent about his fees.

5.k. After re-assessing Civil Case No. 00-044, Respondent told Complainant that he will have to charge her with an acceptance fee of One Hundred Thousand Pesos (P100,000.00), aside form being charged for papers/pleadings that may have to be prepared and filed in court in connection with the aforesaid case. x x x

x

x x

5.n. A few days after, Respondent got a call from Atty. Oliver Lozano. The said Atty. Oliver Lozano interceded for and in behalf of Complainant and asked that the acceptance fee that Respondent was charging the Complainant be reduced.

x x x

x x x

5.r. Complainant then returned to the office of the Respondent on October 20, 2001. The latter then informed the former of his conversation with Atty. Oliver Lozano and his (respondent’s) decision to reduce the acceptance fee.

5.s. Complainant was very grateful at the time, even shedding a tear or two simply because Respondent had agreed to handle her case at a greatly reduced acceptance fee.

Statements of similar tenor can also be found in respondent’s Memorandum[8] filed with the IBP. Undoubtedly, respondent’s present version is a flagrant departure from his previous pleadings. This cannot be countenanced. A party should decide early what version he is going to advance. A change of theory in the latter stage of the proceedings is objectionable, not due to the strict application of procedural rules, but because it is contrary to the rules of fair play, justice and due process.[9] The present administrative case was resolved by the IBP on the basis of respondent’s previous admission that complainant engaged his legal services in Civil Case No. 00-044. He cannot now unbind himself from such admission and its consequences. In fact, if anything at all has been achieved by respondent’s inconsistent assertions, it is his dishonesty to this Court. At any rate, assuming arguendo that complainant indeed engaged respondent’s services in filing the two (2) new petitions, instead of Civil Case No. 00-044, still, his liability is unmistakable. There is nothing in the records to show that he filed any petition. The ethics of the profession demands that, in such a case, he should immediately return the filing fees to complainant. In Pariñas v. Paguinto,[10] we held that “a lawyer shall account for all money or property collected from the client. Money entrusted to a lawyer for a specific purpose, such as for filing fee, but not used for failure to file the case must immediately be returned to the client on demand.” Per records, complainant made repeated demands, but respondent is yet to return the money. Neither do we find merit in respondent’s second argument. The fact that Civil Case No. 00-044 was already “submitted for decision” does not justify his inaction. After agreeing to handle Civil Case No. 00-044, his duty is, first and foremost, to enter his appearance.

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Sadly, he failed to do this simple task. He should have returned complainant’s money. Surely, he cannot expect to be paid for doing nothing. In his third argument, respondent attempts to evade responsibility by shifting the blame to complainant. He claims that she refused to provide him with documents vital to the case. He further claims that he would be violating the Code of Professional Responsibility by handling a case without adequate preparation. This is preposterous. When a lawyer accepts a case, his acceptance is an implied representation that he possesses the requisite academic learning, skill and ability to handle the case.[11] As a lawyer, respondent knew where to obtain copies of the certificates of title. As a matter of fact, he admitted that his Law Office, on its own, managed to verify the authenticity of complainant’s title. It bears reiterating that respondent did not take any action on the case despite having been paid for his services. This is tantamount to abandonment of his duties as a lawyer and taking undue advantage of his client. Finally, in an ironic twist of fate, respondent became the accuser of complainant. In his fourth argument, respondent accuses her of offering falsified documentary evidence in Civil Case No. 00-004, prompting him to file falsification cases against her. He thus justifies his inability to render legal services to complainant. Assuming that complainant indeed offered falsified documentary evidence in Civil Case No. 00-044, will it be sufficient to exonerate respondent? We believe not. First, Canon 19 outlines the procedure in dealing with clients who perpetrated fraud in the course of a legal proceeding. Consistent with its mandate that a lawyer shall represent his client with zeal and only within the bounds of the law, Rule 19.02 of the same Canon specifically provides: Rule 19.02 – A lawyer who has received information that his clients has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.

As a lawyer, respondent is expected to know this Rule. Instead of inaction, he should have confronted complainant and ask her to rectify her fraudulent representation. If complainant refuses, then he should terminate his relationship with her. Understandably, respondent failed to follow the above-cited Rule. This is because there is no truth to his claim that he did not render legal service to complainant because she falsified the documentary evidence in Civil Case No.00-044.

This brings us to the second reason

why we cannot sustain his fourth argument. The pleadings show that he learned of the alleged falsification long after complainant had terminated their attorney-client relationship. It was a result of his active search for a justification of his negligence in Civil Case No. 00044. As a matter of fact, he admitted that he verified the authenticity of complainant’s title only after the “news of his suspension spread in the legal community.” To our mind, there is absurdity in invoking subsequent knowledge of a fact as justification for an act or omission that is fait accompli. Obviously, in filing falsification charges against complainant, respondent was motivated by vindictiveness. In fine, let it be stressed that the authority of an attorney begins with his or her retainer.[12] It gives rise to a relationship between an attorney and a client that is highly fiduciary in nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith.[13] If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar, and helps maintain the respect of the community to the legal profession.[14] Indeed, law is an exacting goddess demanding of her votaries not only intellectual but also moral discipline.

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WHEREFORE, we DENY respondent’s motion for reconsideration. Our Decision dated April 22, 2005 is immediately executory. Respondent is directed to report immediately to the Office of the Bar Confidant his compliance with our Decision. Let a copy of this Resolution be attached to his personal record and copies furnished the Integrated Bar of the Philippines and the Office of the Court Administrator for dissemination to all courts. SO ORDERED. G.R. No. 155224 August 23, 2006 VINSON B. PINEDA, Petitioner, vs. ATTY. CLODUALDO C. DE JESUS, ATTY. CARLOS AMBROSIO and ATTY. EMMANUEL MARIANO, Respondents. DECISION CORONA, J.: The subject of this petition for review is the April 30, 2002 decision 1 of the Court of Appeals in CA-G.R. CV No. 68080 which modified the order2 of the Regional Trial Court (RTC) of Pasig City, Branch 151, in JDRC Case No. 2568 entitled Ma. Aurora D. Pineda v. Vinson B. Pineda. The facts follow. On April 6, 1993, Aurora Pineda filed an action for declaration of nullity of marriage against petitioner Vinson Pineda in the RTC of Pasig City, Branch 151, docketed as JDRC Case No. 2568. Petitioner was represented by respondents Attys. Clodualdo de Jesus, Carlos Ambrosio and Emmanuel Mariano. During the pendency of the case, Aurora proposed a settlement to petitioner regarding her visitation rights over their minor child and the separation of their properties. The proposal was accepted by petitioner and both parties subsequently filed a motion for approval of their agreement. This was approved by the trial court. On November 25, 1998, the marriage between petitioner and Aurora Pineda was declared null and void. Throughout the proceedings, respondent counsels were well-compensated. 3 They, including their relatives and friends, even availed of free products and treatments from petitioner’s dermatology clinic. This notwithstanding, they billed petitioner additional legal fees amounting to P16.5 million4 which the latter, however, refused to pay. Instead, petitioner issued them several checks totaling P1.12 million5 as "full payment for settlement."6 Still not satisfied, respondents filed in the same trial court 7 a motion for payment of lawyers’ fees for P50 million.8 On April 14, 2000, the trial court ordered petitioner to pay P5 million to Atty. de Jesus, P2 million to Atty. Ambrosio and P2 million to Atty. Mariano. On appeal, the Court of Appeals reduced the amount as follows: P1 million to Atty. de Jesus, P500,000 to Atty. Ambrosio and P500,000 to Atty. Mariano. The motion for reconsideration was denied. Hence, this recourse. The issues raised in this petition are: (1) whether the Pasig RTC, Branch 151 had jurisdiction over the claim for additional legal fees and (2) whether respondents were entitled to additional legal fees. First, a lawyer may enforce his right to his fees by filing the necessary petition as an incident of the main action in which his services were rendered or in an independent suit against his client. The former is preferable to avoid multiplicity of suits. 9

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The Pasig RTC, Branch 151, where the case for the declaration of nullity of marriage was filed, had jurisdiction over the motion for the payment of legal fees. Respondents sought to collect P50 million which was equivalent to 10% of the value of the properties awarded to petitioner in that case. Clearly, what respondents were demanding was additional payment for legal services rendered in the same case. Second, the professional engagement between petitioner and respondents was governed by the principle of quantum meruit which means "as much as the lawyer deserves."10 The recovery of attorney’s fees on this basis is permitted, as in this case, where there is no express agreement for the payment of attorney’s fees. Basically, it is a legal mechanism which prevents an unscrupulous client from running away with the fruits of the legal services of counsel without paying for it. In the same vein, it avoids unjust enrichment on the part of the lawyer himself. Further, Rule 20.4 of the Code of Professional Responsibility advises lawyers to avoid controversies with clients concerning their compensation and to resort to judicial action only to prevent imposition, injustice or fraud. Suits to collect fees should be avoided and should be filed only when circumstances force lawyers to resort to it. 11 In the case at bar, respondents’ motion for payment of their lawyers’ fees was not meant to collect what was justly due them; the fact was, they had already been adequately paid. Demanding P50 million on top of the generous sums and perks already given to them was an act of unconscionable greed which is shocking to this Court. As lawyers, respondents should be reminded that they are members of an honorable profession, the primary vision of which is justice. It is respondents’ despicable behavior which gives lawyering a bad name in the minds of some people. The vernacular has a word for it: nagsasamantala. The practice of law is a decent profession and not a money-making trade. Compensation should be but a mere incident.12 Respondents’ claim for additional legal fees was not justified. They could not charge petitioner a fee based on percentage, absent an express agreement to that effect. The payments to them in cash, checks, free products and services from petitioner’s business — all of which were not denied by respondents — more than sufficed for the work they did. The "full payment for settlement" 13 should have discharged petitioner’s obligation to them. The power of this Court to reduce or even delete the award of attorneys’ fees cannot be denied. Lawyers are officers of the Court and they participate in the fundamental function of administering justice. 14 When they took their oath, they submitted themselves to the authority of the Court and subjected their professional fees to judicial control. 15 WHEREFORE, the petition is hereby PARTIALLY GRANTED. The decision of the Court of Appeals dated April 30, 2002 in CA– G.R. CV No. 68080 is hereby MODIFIED. The award of additional attorney’s fees in favor of respondents is hereby DELETED. SO ORDERED. ATTY. CARMEN LEONOR M. ALCANTARA, VICENTE P. MERCADO, SEVERINO P. MERCADO AND SPOUSES JESUS AND ROSARIO MERCADO,

A.C. No. 5859 (Formerly CBD Case No. 421)

Complainants, Present:

CORONA, C.J., CARPIO,

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CARPIO MORALES, VELASCO, JR., NACHURA, - versus -

LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,* ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

ATTY. EDUARDO C. DE VERA,

Promulgated:

Respondent. November 23, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RESOLUTION PER CURIAM: For our review is the Resolution[1] of the Board of Governors of the Integrated Bar of the Philippines (IBP) finding respondent Atty. Eduardo C. De Vera liable for professional malpractice and gross misconduct and recommending his disbarment. The facts, as appreciated by the investigating commissioner, [2] are undisputed.

The respondent is a member of the Bar and was the former counsel of Rosario P. Mercado in a civil case filed in 1984 with the Regional Trial Court of Davao City and an administrative case filed before the Securities and Exchange Commission, Davao City Extension Office. [3]

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Pursuant to a favorable decision, a writ of execution pending appeal was issued in favor of Rosario P. Mercado. Herein respondent, as her legal counsel, garnished the bank deposits of the defendant, but did not turn over the proceeds to Rosario. Rosario demanded that the respondent turn over the proceeds of the garnishment, but the latter refused claiming that he had paid part of the money to the judge while the balance was his, as attorney’s fees. Such refusal prompted Rosario to file an administrative case for disbarment against the respondent.[4] On March 23, 1993, the IBP Board of Governors promulgated a Resolution holding the respondent guilty of infidelity in the custody and handling of client’s funds and recommending to the Court his one-year suspension from the practice of law. [5] Following the release of the aforesaid IBP Resolution, the respondent filed a series of lawsuits against the Mercado family except George Mercado. The respondent also instituted cases against the family corporation, the corporation’s accountant and the judge who ruled against the reopening of the case where respondent tried to collect the balance of his alleged fee from Rosario. Later on, the respondent also filed cases against the chairman and members of the IBP Board of Governors who voted to recommend his suspension from the practice of law for one year. Complainants allege that the respondent committed barratry, forum shopping, exploitation of family problems, and use of intemperate language when he filed several frivolous and unwarranted lawsuits against the complainants and their family members, their lawyers, and the family corporation. [6] They maintain that the primary purpose of the cases is to harass and to exact revenge for the one-year suspension from the practice of law meted out by the IBP against the respondent. Thus, they pray that the respondent be disbarred for malpractice and gross misconduct under Section 27, [7] Rule 138 of the Rules of Court. In his defense the respondent basically offers a denial of the charges against him. He denies he has committed barratry by instigating or stirring up George Mercado to file lawsuits against the complainants. He insists that the lawsuits that he and George filed against the complainants were not harassment suits but were in fact filed in good faith and were based on strong facts.[8] Also, the respondent denies that he has engaged in forum shopping. He argues that he was merely exhausting the remedies allowed by law and that he was merely constrained to seek relief elsewhere by reason of the denial of the trial court to reopen the civil case so he could justify his attorney’s fees. Further, he denies that he had exploited the problems of his client’s family. He argues that the case that he and George Mercado filed against the complainants arose from their perception of unlawful transgressions committed by the latter for which they must be held accountable for the public interest. Finally, the respondent denies using any intemperate, vulgar, or unprofessional language. On the contrary, he asserts that it was the complainants who resorted to intemperate and vulgar language in accusing him of “extorting from Rosario shocking and unconscionable attorney’s fees.”[9] After careful consideration of the records of this case and the parties’ submissions, we find ourselves in agreement with the findings and recommendation of the IBP Board of Governors. It is worth stressing that the practice of law is not a right but a privilege bestowed by the State upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. [10] Membership in the bar is a privilege burdened with conditions. A lawyer has the privilege and right to practice law only during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the court after opportunity to be heard has been afforded him. Without invading

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any constitutional privilege or right, an attorney’s right to practice law may be resolved by a proceeding to suspend or disbar him, based on conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to an office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney. [11] In Maligsa v. Cabanting,[12] we explained that the bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal profession should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession. An attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney and counselor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court. In the present case, the respondent committed professional malpractice and gross misconduct particularly in his acts against his former clients after the issuance of the IBP Resolution suspending him from the practice of law for one year. In summary, the respondent filed against his former client, her family members, the family corporation of his former client, the Chairman and members of the Board of Governors of the IBP who issued the said Resolution, the Regional Trial Court Judge in the case where his former client received a favorable judgment, and the present counsel of his former client, a total of twelve (12) different cases in various fora which included the Securities and Exchange Commission; the Provincial Prosecutors Office of Tagum, Davao; the Davao City Prosecutors Office; the IBPCommission on Bar Discipline; the Department of Agrarian Reform; and the Supreme Court. [13] In addition to the twelve (12) cases filed, the respondent also re-filed cases which had previously been dismissed. The respondent filed six criminal cases against members of the Mercado family separately docketed as I.S. Nos. 97-135; 97-136; 97-137; 97-138; 97-139; and 97140. With the exception of I.S. No. 97-139, all the aforementioned cases are re-filing of previously dismissed cases. [14] Now, there is nothing ethically remiss in a lawyer who files numerous cases in different fora, as long as he does so in good faith, in accordance with the Rules, and without any ill-motive or purpose other than to achieve justice and fairness. In the present case, however, we find that the barrage of cases filed by the respondent against his former client and others close to her was meant to overwhelm said client and to show her that the respondent does not fold easily after he was meted a penalty of one year suspension from the practice of law. The nature of the cases filed by the respondent, the fact of re-filing them after being dismissed, the timing of the filing of cases, the fact that the respondent was in conspiracy with a renegade member of the complainants’ family, the defendants named in the cases and the foul language used in the pleadings and motions[15] all indicate that the respondent was acting beyond the desire for justice and fairness. His act of filing a barrage of cases appears to be an act of revenge and hate driven by anger and frustration against his former client who filed the disciplinary complaint against him for infidelity in the custody of a client’s funds. In the case of Prieto v. Corpuz,[16] the Court pronounced that it is professionally irresponsible for a lawyer to file frivolous lawsuits. Thus, we stated in Prieto, Atty. Marcos V. Prieto must be sanctioned for filing this unfounded complaint. Although no person should be penalized for the exercise of the right to litigate, however, this right must be exercised in good faith. [17] As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing frivolous petitions that only add to the workload of the judiciary.

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A lawyer is part of the machinery in the administration of justice. Like the court itself, he is an instrument to advance its ends – the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. [18] Canon 12 of the Code of Professional Responsibility promulgated on 21 June 1988 is very explicit that lawyers must exert every effort and consider it their duty to assist in the speedy and efficient administration of justice.

Further, the respondent not only filed frivolous and unfounded lawsuits that violated his duties as an officer of the court in aiding in the proper administration of justice, but he did so against a former client to whom he owes loyalty and fidelity. Canon 21 and Rule 21.02 of the Code of Professional Responsibility[19] provides:

CANON 21 - A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated. Rule 21.02 – A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. The cases filed by the respondent against his former client involved matters and information acquired by the respondent during the time when he was still Rosario’s counsel. Information as to the structure and operations of the family corporation, private documents, and other pertinent facts and figures used as basis or in support of the cases filed by the respondent in pursuit of his malicious motives were all acquired through the attorney-client relationship with herein complainants. Such act is in direct violation of the Canons and will not be tolerated by the Court. WHEREFORE, respondent Atty. Eduardo C. De Vera is hereby DISBARRED from the practice of law effective immediately upon his receipt of this Resolution. Let copies of this Resolution be furnished the Bar Confidant to be spread on the records of the respondent; 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. [A.C. No. 4215. May 21, 2001] FELICISIMO M. MONTANO, complainant, vs. INTEGRATED BAR of the PHILIPPINES AND Atty. JUAN S. DEALCA, respondents. RESOLUTION KAPUNAN, J.: In a verified complaint filed before this Court on March 9, 1994, complainant Felicisimo M. Montano charged Atty. Juan Dealca with misconduct and prays that he be “sternly dealt wit administratively.” The complaint[1] is summarized as follows: 1. On November 14, 1992, the complainant hired the services of Atty. Juan S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a case pending before the Court of Appeals docketed as CA-G.R. CV No. 37467 wherein the complainant was the plaintiffappellant. 2. The parties agreed upon attorney’s fees in the amount of P15,000.00, fifty percent (50%) of which was payable upon acceptance of the case and the remaining balance upon the termination of the case. Accordingly, complainant paid respondent the amount of P7,500.00 representing 50% of the attorney’s fee.

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3. Thereafter, even before the respondent counsel had prepared the appellant’s brief and contrary to their agreement that the remaining balance be payable after the termination of the case, Atty. Dealca demanded an additional payment from complainant. Complainant obliged by paying the amount of P4,000.00. 4. Prior to the filing of the appellant’s brief, respondent counsel again demand payment of the remaining balance of 3,500.00. When complainant was unable to do so, respondent lawyer withdrew his appearance as complainant’s counsel without his prior knowledge and/or conformity. Returning the case folder to the complainant, respondent counsel attached a Note dated February 28, 1993,[2] stating: 28 February 1994 Pepe and Del Montano, For breaking your promise, since you do not want to fulfill your end of the bargain, here’s your reward: Henceforth, you lawyer for yourselves. Here are your papers. Johnny Complainant claimed that such conduct by respondent counsel exceeded the ethical standards of the law profession and prays that the latter be sternly dealt with administratively. Complainant later on filed motions praying for the imposition of the maximum penalty of disbarment. After respondent counsel filed his comment on the complaint, the Court in the Resolution of August 1, 1994, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The Investigating Commissioner found respondent counsel guilty of unprofessional conduct and recommended that he be “severely reprimanded.” However, in a Resolution[3] by the IBP Board of Governors on July 26, 1997, it was resolved that the penalty recommended by the Investigating Commissioner meted to respondent by amended to “three (3) months suspension from the practice of law for having been found guilty of misconduct, which eroded the public confidence regarding his duty as a lawyer.” Respondent counsel sought reconsideration of the aforementioned resolution of the IBP, alleging that the latter misapprehended the facts and that, in any case, he did not deserve the penalty imposed. The true facts, according to him, are the following: 1. Complainant is being represented by Atty. Ronando L. Gerona in his case on appeal; 2. Due to the ailment of Atty. Gerona’s daughter, he could not prepare and submit complainant’s appellant’s brief on time; 3. Complainant went to the respondent to do just that, i.e., prepare and submit his appellant’s brief on time at the agreed fee of P15,000.00, 50% down and 50% upon its completion; 4. Working overtime, respondent was able to finish the appellant’s brief ahead of its deadline, so he advised the complainant about its completion with the request that the remaining balance of P7,500.00 be paid. Complainant paid P4,000.00 only, promising to pay the P3,500.00 “tomorrow” or on “later particular date.” Please take note that, at this juncture, there was already a breach of the agreement on complainant’s part. 5. When that “tomorrow” or on a “later particular date” came, respondent, thru a messenger, requested the complainant to pay the P3,500.00 as promised but word was sent that he will again pay “tomorrow” or on “later date.” This promise-non-payment cycle went on repeatedly until the last day of the filing of the brief. Please take note again that it was not the respondent but the complainant who sets the date when he will pay, yet fails to pay as promised; 6. Even without being paid completely, respondent, of his own free will and accord, filed complainant’s brief on time; 7. After the brief was filed, respondent tried to collect from the complainant the remaining balance of P3,500.00, but the latter made himself scarce. As the records would show, such P3,500.00 remains unpaid until now; 8. Sensing that something was amiss, respondent sent the February 28, 1993 note and case folder to the complainant, hoping that the latter would see personally the former about it to settle the matter between them; 9. However, instead of seeing the respondent, complainant filed this case;

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10. Respondent was constrained to file his withdrawal with the Court of Appeals because of this case to avoid further misunderstanding since he was the one who signed the appellant’s brief although Atty. Gerona was his counsel of record. Such withdrawal was accordingly granted by the appellate court; xxx xxx

xxx.[4]

Respondent counsel further averred that complainant’s refusal to pay the agreed lawyer’s fees, measly as it was, was deliberate and in bad faith; hence, his withdrawal as counsel was “just, ethical and proper.” Respondent counsel concluded that not only was the penalty of suspension harsh for his act of merely trying to collect payment for his services rendered, but it indirectly would punish his family since he was the sole breadwinner with children in school and his wife terminally ill with cancer. In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied Atty. Dealca’s motion for reconsideration, to wit: xxx RESOLVED TO DENY Atty. Dealca’s Motion For Reconsideration of the Board’s Decision in the above-entitled case there being no substantive reason to reverse the finding therein. Moreover, the motion is improperly laid the remedy of the respondent is to file the appropriate pleading with the Supreme Court within fifteen (15) days from receipt of notice of said Decision pursuant to Sec. 12 [c] of Rule 139-B.[5] On December 10, 1997, this Court noted the following pleadings filed in the present complaint, (a) notice and a copy of Resolution No. XII-97-154 dated July 26, 1997 of the Integrated Bar of the Philippines amending the recommendation of the Investigating Commissioner of reprimand to three (3) months suspension of respondent from the practice of law for having been found guilty of misconduct which eroded the public confidence regarding his duty as a lawyer; (b) complainant’s motion for praying for the imposition of the maximum penalty of disbarment; (c) motion dated September 15, 1997 of respondent for reconsideration of the aforesaid resolution of July 26, 1997; (d) comment/opposition of respondent praying that the motion for the imposition of the maximum penalty be denied; (e) comment of complainant praying that the penalty of three (3) months suspension for the practice of law as recommended by the Integrated Bar of the Philippines pursuant to Resolution No. XII-97-154 be raised to a heavier penalty; (f) comment/manifestation/opposition of complainant praying that the respondent be disbarred; and (g) rejoinder of respondent praying that this case be dismissed for being baseless.[6] and referred the same to the IBP for evaluation and report. In compliance therewith, on March 28, 1998, the IBP issued Resolution No. XIII-98-42 referring the above-entitled case to Commissioner Vibar for evaluation, report and recommendation “in view of the Motion for Reconsideration granted by the Supreme Court.” The Investigating Commissioner, after referring the case, recommended that his original recommendation of the imposition of the penalty of reprimand be maintained, noting that respondent counsel had served the IBP well as President of the Sorsogon Chapter.[7] Accordingly, on February 23, 1999, the IBP Board of Governors, issued the following resolution: RESOLUTION NO. XIII-99-48

xxx RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration be granted and that the penalty of REPRIMAND earlier recommended by the Investigating Commissioner be imposed on Atty. Juan S. Dealca.[8] Complainant asked the IBP to reconsider the foregoing resolution but the motion was denied.[9] On April 10, 2000, complainant filed with this Court a petition for review on certiorari in connection with Administrative Case No. 4215

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against the IBP and respondent counsel averring that the IBP Board of Governors committed grave abuse of discretion when it overturned its earlier resolution and granted respondent counsel’s motion for reconsideration on February 23, 1999. He claimed that the earlier resolution denying the motion for reconsideration issued on October 25, 1997 had already become final and executory; hence, any further action or motion subsequent to such final and executory judgment shall be null and void. When the Court issued the resolution of December 10, 1997 treating the several pleadings filed in the present complaint, it should be noted that the IBP resolution denying respondent’s motion for reconsideration (Resolution No. XIII-97-129) dated October 25, 1997, for some reason, had not yet reached this Court. As of that date, the only IBP resolution attached to the records of the case was Resolution No. XII-97-54 amending the administrative sanction from reprimand to three months suspension. Hence, at the time the pleadings were referred back to the IBP in the same resolution, the Court was not aware that the IBP had already disposed of the motion for reconsideration filed by respondent counsel. Thus, when the IBP was informed of the said Court resolution, it construed the same as granting Atty. Dealca’s motion for reconsideration and as an order for IBP to conduct a re-evaluation of the case. The IBP assumed that its resolution of October 25, 1997 was already considered by this Court when it referred the case back to the IBP. It failed to notice that its resolution denying the motion for reconsideration was not among those pleadings and resolution referred back to it. Hence, on the strength of this Court’s resolution which it had inadvertently misconstrued, the IBP conducted a re-evaluation of the case and came up with the assailed resolution now sought to be reversed. The Court holds that the error is not attributable to the IBP. It is regrettable that the procedural infirmity alleged by complainant actually arose from a mere oversight which was attributable to neither party. Going into the merits, we affirm the findings made by the IBP that complainant engaged the services of respondent lawyer only for the preparation and submission of the appellant’s brief and the attorney’s fees was payable upon the completion and submission of the appellant’s brief and not upon the termination of the case. There is sufficient evidence which indicates complainant’s willingness to pay the attorney’s fees. As agreed upon, complainant paid half of the fees in the amount of P7,500.00 upon acceptance of the case. And while the remaining balance was not yet due as it was agreed to be paid only upon the completion and submission of the brief, complainant nonetheless delivered to respondent lawyer P4,000.00 as the latter demanded. This, notwithstanding, Atty. Dealca withdrew his appearance simply because of complainant’s failure to pay the remaining balance of P3,500.00, which does not appear to be deliberate. The situation was aggravated by respondent counsel’s note to complainant withdrawing as counsel which was couched in impolite and insulting language.[10] Given the above circumstances, was Atty. Dealca’s conduct just and proper? We find Atty. Dealca’s conduct unbecoming of a member of the legal profession. Under Canon 22 of the Code of Professional Responsibility, lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. Although he may withdraw his services when the client deliberately fails to pay the fees for the services,[11] under the circumstances of the present case, Atty. Dealca’s withdrawal was unjustified as complainant did not deliberately fail to pay him the attorney’s fees. In fact, complainant exerted honest efforts to fulfill his obligation. Respondent’s contemptuous conduct does not speak well of a member of the bar considering that the amount owing to him was only P3,500.00. Rule 20.4 of Canon 20, mandates that a lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Sadly, for not so large a sum owed to him by complainant, respondent lawyer failed to act in accordance with the demands of the Code. The Court, however, does not agree with complainant’s contention that the maximum penalty of disbarment should be imposed on respondent lawyer. The power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment be imposed as a penalty. It should never be decreed where a lesser penalty, such as temporary suspension, would accomplish the end desired.[12] In the present case, reprimand is deemed sufficient. WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is REPRIMANDED with a warning that repetition of the same act will be dealt with more severely. SO ORDERED.

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