Legal Ethics

LEGAL ETHICS List and Full Text of Cases
University of San Carlos, EH410MC
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LEGAL ETHICS CASES (Full Text)

Introduction
CAYETANO V. MONSOD, 201 SCRA 210 SECOND DIVISION G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents. Renato L. Cayetano for and in his own behalf. Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:p We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)
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Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. 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. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. ( Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.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 rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. ( State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine 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 of 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). (Emphasis supplied) Practice of law under modem 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 of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices
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[Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (19741975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. ( Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.
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MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied)
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15). At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." ( Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. ( Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. ( Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. ( Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner,
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the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." ( Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687). By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.). In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts. In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom. Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.
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Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making. Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. ( Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry. Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house. A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law. At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.) In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business. Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. ( Business Star, "Corporate Law Practice," May 25,1990, p. 4). This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues. Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an
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introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself. These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning. Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas. Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies . And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied) Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the groupcontext interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes. In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged . Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied) Regarding the skills to apply by the corporate counsel, three factors are apropos: First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied) Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)
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Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point. [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. Organization and Functioning of the Corporate Counsel's Office . The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. " Business Star", "The Corporate Counsel," April 10, 1991, p. 4). The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? ( Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC. Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.
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Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo) After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied) After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. ( Ibid., p. 13). In the same vein, lawyers play an important role in any debt restructuring program . For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied) Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation . Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical
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language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. ( See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years . Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide . (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law . ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200) The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
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The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President? We now proceed: The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. Additionally, consider the following: (1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.
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(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear. (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin; No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement. In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED. Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur. Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.) Sarmiento, J., is on leave. Regalado, and Davide, Jr., J., took no part.
Separate Opinions
NARVASA, J., concurring:
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I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.
PADILLA, J., dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years " has not been met. The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries." The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with. What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily. Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
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2
As aptly held by this Court in the case of People vs. Villanueva:
Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). 2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) 3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra) 4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. The following relevant questions may be asked: 1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. Did respondent perform such tasks customarily or habitually? 3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
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Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. CRUZ, J., dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint. To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review. In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place. Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."
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The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board. The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition. GUTIERREZ, JR., J., dissenting: When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result. Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result
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because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision. There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution. Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations? The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
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2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation 3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation 4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies 5. 1976-1978: Finaciera Manila Chief Executive Officer 6. 1978-1986: Guevent Group of Companies Chief Executive Officer 7. 1986-1987: Philippine Constitutional Commission Member 8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member 9. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a. ACE Container Philippines, Inc. b. Dataprep, Philippines c. Philippine SUNsystems Products, Inc. d. Semirara Coal Corporation e. CBL Timber Corporation Member of the Board of the Following: a. Engineering Construction Corporation of the Philippines b. First Philippine Energy Corporation c. First Philippine Holdings Corporation d. First Philippine Industrial Corporation e. Graphic Atelier f. Manila Electric Company g. Philippine Commercial Capital, Inc. h. Philippine Electric Corporation i. Tarlac Reforestation and Environment Enterprises j. Tolong Aquaculture Corporation k. Visayan Aquaculture Corporation l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
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There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer. The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful. I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years." Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited. It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank , 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in
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instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773) xxx xxx xxx ... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and nonprofessional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
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xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]). Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate. I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. I vote to GRANT the petition. Bidin, J., dissent
Separate Opinions NARVASA, J., concurring: I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition. Melencio-Herrera, J., concur. PADILLA, J., dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My
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purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years " has not been met. The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries." The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with. What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily. Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law. As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary
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public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). 2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) 3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra) 4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. The following relevant questions may be asked: 1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. Did respondent perform such tasks customarily or habitually? 3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman? Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.
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ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. CRUZ, J., dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint. To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review. In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place. Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation." The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
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The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition. GUTIERREZ, JR., J., dissenting: When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result. Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision. There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution.
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Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations? The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania 2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation 3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation 4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies 5. 1976-1978: Finaciera Manila Chief Executive Officer 6. 1978-1986: Guevent Group of Companies Chief Executive Officer 7. 1986-1987: Philippine Constitutional Commission Member
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8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member 9. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a. ACE Container Philippines, Inc. b. Dataprep, Philippines c. Philippine SUNsystems Products, Inc. d. Semirara Coal Corporation e. CBL Timber Corporation Member of the Board of the Following: a. Engineering Construction Corporation of the Philippines b. First Philippine Energy Corporation c. First Philippine Holdings Corporation d. First Philippine Industrial Corporation e. Graphic Atelier f. Manila Electric Company g. Philippine Commercial Capital, Inc. h. Philippine Electric Corporation i. Tarlac Reforestation and Environment Enterprises j. Tolong Aquaculture Corporation k. Visayan Aquaculture Corporation l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer. The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.
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I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years." Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited. It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773) xxx xxx xxx
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... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and nonprofessional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]): xxx xxx xxx ... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968). Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115) xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
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Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate. I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. I vote to GRANT the petition. Bidin, J., dissent
PHILIPPINE LAWYERS ASSOCIATION V. AGRAVA, 105 PHIL 173 EN BANC G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner, vs. CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent. Arturo A. Alafriz for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent. MONTEMAYOR, J.: This is the petition filed by the Philippine Lawyer's Association for prohibition and injunction against Celedonio Agrava, in his capacity as Director of the Philippines Patent Office. On may 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27, 1957 an examination for the purpose of determining who are qualified to practice as patent attorneys before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the rules of practice before said office. According to the circular, members of the Philippine Bar, engineers and other persons with sufficient scientific and technical training are qualified to take the said examination. It would appear that heretofore, respondent Director has been holding similar examinations. It is the contention of the petitioner Philippine Lawyer's Association that one who has passed the bar examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the cat of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an examination given by the Patent Office as a condition precedent to their being allowed to practice before said office, such as representing applicants in the preparation and prosecution of applications for patent, is in excess of his jurisdiction and is in violation of the law.
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In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of patent cases "does not involve entirely or purely the practice of law but includes the application of scientific and technical knowledge and training, so much so that, as a matter of actual practice, the prosecution of patent cases may be handled not only by lawyers, but also engineers and other persons with sufficient scientific and technical training who pass the prescribed examinations as given by the Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial body from requiring further condition or qualification from those who would wish to handle cases before the Patent Office which, as stated in the preceding paragraph, requires more of an application of scientific and technical knowledge than the mere application of provisions of law; . . . that the action taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law of the Philippines, which similar to the United States Patent Law, in accordance with which the United States Patent Office has also prescribed a similar examination as that prescribed by respondent. . . . Respondent further contends that just as the Patent law of the United States of America authorizes the Commissioner of Patents to prescribe examinations to determine as to who practice before the United States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No. 165. Although as already stated, the Director of Patents, in the past, would appear to have been holding tests or examinations the passing of which was imposed as a required qualification to practice before the Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so, specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And we have given it careful thought and consideration. The Supreme Court has the exclusive and constitutional power with respect to admission to the practice of law in the Philippines1 and to any member of the Philippine Bar in good standing may practice law anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as to whether or not appearance before the patent Office and the preparation and the prosecution of patent applications, etc., constitutes or is included in the practice of law. 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 social 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 corporation 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 of 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. Jur. p. 262, 263). (Emphasis supplied). 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
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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 of Court, Vol. 3 (1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours). In our opinion, the practice of law includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the first place, although the transaction of business in the Patent Office involves the use and application of technical and scientific knowledge and training, still, all such business has to be rendered in accordance with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the interpretation and application of other laws and legal principles, as well as the existence of facts to be established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it was known or used by others in the Philippines before the invention thereof by the inventor named in any printed publication in the Philippines or any foreign country more than one year before the application for a patent therefor, or if it had been in public use or on sale in the Philippines for more than one year before the application for the patent therefor. Section 10 provides that the right to patent belongs to the true and actual inventor, his heirs, legal representatives or assigns. Section 25 and 26 refer to connection of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a patent; that although any person may apply for such cancellation, under Section 29, the Solicitor General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements of a petition for cancellation. Section 31 and 32 provide for a notice of hearing of the petition for cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under Section 34, at any time after the expiration of three years from the day the patent was granted, any person patent on several grounds, such as, if the patented invention is not being worked in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines is not being met to an adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on reasonable terms or by reason of the condition attached by him to the license, purchase or use of the patented article or working of the patented process or machine of production, the establishment of a new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or medicine or is necessary to public health or public safety. All these things involve the applications of laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for which a member of the bar has been prepared. In support of the proposition that much of the business and many of the act, orders and decisions of the Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent Law, Republic Act No. 165, Section 61, provides that: . . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a patent or to obtain a compulsory license, and any party to any other proceeding in the Office may appeal to the Supreme Court from any final order or decision of the director. In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial body, but rather to a board of scientists, engineers or technical men, which is not the case.
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Another aspect of the question involves the consideration of the nature of the functions and acts of the Head of the Patent Office. . . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions, exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to give authenticated copies to any person, on payment of the legal fees. (40 Am. Jur. 537). (Emphasis supplied). . . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an application the commissioner should decide not only questions of law, but also questions of fact, as whether there has been a prior public use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis supplied). The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold that a member of the bar, because of his legal knowledge and training, should be allowed to practice before the Patent Office, without further examination or other qualification. Of course, the Director of Patents, if he deems it advisable or necessary, may require that members of the bar practising before him enlist the assistance of technical men and scientist in the preparation of papers and documents, such as, the drawing or technical description of an invention or machine sought to be patented, in the same way that a lawyer filing an application for the registration of a parcel of land on behalf of his clients, is required to submit a plan and technical description of said land, prepared by a licensed surveyor. But respondent Director claims that he is expressly authorized by the law to require persons desiring to practice or to do business before him to submit an examination, even if they are already members of the bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent Law; and of the United States Patent Office in Patent Cases prescribes an examination similar to that which he (respondent) has prescribed and scheduled. He invites our attention to the following provisions of said Rules of Practice: Registration of attorneys and agents. A register of an attorneys and a register agents are kept in the Patent Office on which are entered the names of all persons recognized as entitled to represent applicants before the Patent Office in the preparation and prosecution of applicants for patent. Registration in the Patent Office under the provisions of these rules shall only entitle the person registered to practice before the Patent Office. (a) Attorney at law. Any attorney at law in good standing admitted to practice before any United States Court or the highest court of any State or Territory of the United States who fulfills the requirements and complied with the provisions of these rules may be admitted to practice before the Patent Office and have his name entered on the register of attorneys. xxx xxx xxx
(c) Requirement for registration. No person will be admitted to practice and register unless he shall apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and furnish all requested information and material; and shall establish to the satisfaction of the Commissioner that he is of good moral character and of good repute and possessed of the legal and scientific and technical qualifications necessary to enable him to render applicants for patent valuable service, and is otherwise competent to advise and assist him in the presentation and prosecution of their
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application before the Patent Office. In order that the Commissioner may determine whether a person seeking to have his name placed upon either of the registers has the qualifications specified, satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and technical matters must be submitted and an examination which is held from time to time must be taken and passed. The taking of an examination may be waived in the case of any person who has served for three years in the examining corps of the Patent Office. Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in Patent Cases is authorized by the United States Patent Law itself, which reads as follows: The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing applicants or other parties before his office, and may require of such persons, agents, or attorneys, before being recognized as representatives of applicants or other persons, that they shall show they are of good moral character and in good repute, are possessed of the necessary qualifications to enable them to render to applicants or other persons valuable service, and are likewise to competent to advise and assist applicants or other persons in the presentation or prosecution of their applications or other business before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case from further practice before his office any person, agent or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any matter, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective applicant, or other person having immediate or prospective business before the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the person so refused recognition or so suspended by the district court of the United States for the District of Columbia under such conditions and upon such proceedings as the said court may by its rules determine. (Emphasis supplied) Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons desiring to practice before him should submit to and pass an examination. We reproduce said Section 78, Republic Act No. 165, for purposes of comparison: SEC. 78. Rules and regulations. The Director subject to the approval of the Secretary of Justice, shall promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office. The above provisions of Section 78 certainly and by far, are different from the provisions of the United States Patent Law as regards authority to hold examinations to determine the qualifications of those allowed to practice before the Patent Office. While the U.S. Patent Law authorizes the Commissioner of Patents to require attorneys to show that they possess the necessary qualifications and competence to render valuable service to and advise and assist their clients in patent cases, which showing may take the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent on this important point. Our attention has not been called to any express provision of our Patent Law, giving such authority to determine the qualifications of persons allowed to practice before the Patent Office. Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and make regulations or general orders not inconsistent with law, to secure the harmonious and efficient administration of
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his branch of the service and to carry into full effect the laws relating to matters within the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the Department Head, makes all rules and regulations necessary to enforce the provisions of said code. Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate all needful rules and regulations for the effective enforcement of the provisions of the code. We understand that rules and regulations have been promulgated not only for the Bureau of Customs and Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business in and to enforce the law for said bureaus. Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before they are allowed to practice before said Patent Office, then there would be no reason why other bureaus specially the Bureau of Internal Revenue and Customs, where the business in the same area are more or less complicated, such as the presentation of books of accounts, balance sheets, etc., assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau of Customs, may not also require that any lawyer practising before them or otherwise transacting business with them on behalf of clients, shall first pass an examination to qualify. In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this Tribunal to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the Patent Law and other laws applicable, as well as the presentation of evidence to establish facts involved; that part of the functions of the Patent director are judicial or quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the Supreme Court. For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass the same before being permitted to appear and practice before the Patent Office. No costs. Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
IN RE: AL ARGOSINO, 246 SCRA 14 B.M. No. 712 July 13, 1995 IN THE MATTER OF THE ADMISSION TO THE BAR AND OATH-TAKING OF SUCCESSFUL BAR APPLICANT AL C. ARGOSINO, petitioner. RESOLUTION
FELICIANO, J.:
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A criminal information was filed on 4 February 1992 with the Regional Trial Court of Quezon City, Branch 101, charging Mr. A.C. Argosino along with thirteen (13) other individuals, with the crime of homicide in connection with the death of one Raul Camaligan on 8 September 1991. The death of Raul Camaligan stemmed from the infliction of severe physical injuries upon him in the course of "hazing" conducted as part of university fraternity initiation rites. Mr. Argosino and his co-accused then entered into plea bargaining with the prosecution and as a result of such bargaining, pleaded guilty to the lesser offense of homicide through reckless imprudence. This plea was accepted by the trial court. In a judgment dated 11 February 1993, each of the fourteen (14) accused individuals was sentenced to suffer imprisonment for a period ranging from two (2) years, four (4) months and one (1) day to four (4) years. Eleven (11) days later, Mr. Argosino and his colleagues filed an application for probation with the lower court. The application for probation was granted in an Order dated 18 June 1993 issued by Regional Trial Court Judge Pedro T. Santiago. The period of probation was set at two (2) years, counted from the probationer's initial report to the probation officer assigned to supervise him. Less than a month later, on 13 July 1993, Mr. Argosino filed a Petition for Admission to Take the 1993 Bar Examinations. In this Petition, he disclosed the fact of his criminal conviction and his then probation status. He was allowed to take the 1993 Bar Examinations in this Court's En Banc Resolution dated 14 August 1993. 1 He passed the Bar Examination. He was not, however, allowed to take the lawyer's oath of office. On 15 April 1994, Mr. Argosino filed a Petition with this Court to allow him to take the attorney's oath of office and to admit him to the practice of law, averring that Judge Pedro T. Santiago had terminated his probation period by virtue of an Order dated 11 April 1994. We note that his probation period did not last for more than ten (10) months from the time of the Order of Judge Santiago granting him probation dated 18 June 1993. Since then, Mr. Argosino has filed three (3) Motions for Early Resolution of his Petition for Admission to the Bar. The practice of law is not a natural, absolute or constitutional right to be granted to everyone who demands it. Rather, it is a high personal privilege limited to citizens of good moral character, with special educational qualifications, duly ascertained and certified. 2 The essentiality of good moral character in those who would be lawyers is stressed in the following excerpts which we quote with approval and which we regard as having persuasive effect:
In Re Farmer: 3 xxx xxx xxx This "upright character" prescribed by the statute, as a condition precedent to the applicant's right to receive a license to practice law in North Carolina, and of which he must, in addition to other requisites, satisfy the court, includes all the elements necessary to make up such a character. It is something more than an absence of bad character. It is the good name which the applicant has acquired, or should have acquired, through association with his fellows. It means that he must have conducted himself as a man of upright character ordinarily would, or should, or does. Such character expresses itself, not in negatives nor in following the line of least resistance , but quite often, 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 . . . . xxx xxx xxx
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And we may pause to say that this requirement of the statute is eminently proper. Consider for a moment the duties of a lawyer. He is sought as counsellor, and his advice comes home, in its ultimate effect, to every man's fireside. Vast interests are committed to his care; he is the recipient of unbounded trust and confidence; he deals with is client's property, reputation, his life, his all. An attorney at law is a sworn officer of the Court, whose chief concern, as such, is to aid the administration of justice. . . . xxx xxx xxx 4 In Re Application of Kaufman, 5 citing Re Law Examination of 1926 (1926) 191 Wis 359, 210 NW 710: It can also be truthfully said that there exists nowhere greater temptations to deviate from the straight and narrow path than in the multiplicity of circumstances that arise in the practice of profession. For these reasons the wisdom of requiring an applicant for admission to the bar to possess a high moral standard therefore becomes clearly apparent, and the board of bar examiners as an arm of the court, is required to cause a minute examination to be made of the moral standard of each candidate for admission to practice. . . . It needs no further argument, therefore, to arrive at the conclusion that the highest degree of scrutiny must be exercised as to the moral character of a candidate who presents himself for admission to the bar. The evil must, if possible, be successfully met at its very source, and prevented, for, after a lawyer has once been admitted, and has pursued his profession, and has established himself therein, a far more difficult situation is presented to the court when proceedings are instituted for disbarment and for the recalling and annulment of his license. In Re Keenan: 6 The right to practice law is not one of the inherent rights of every citizen, as in the right to carry on an ordinary trade or business. It is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and in moral character . All may aspire to it on an absolutely equal basis, but not all will attain it. Elaborate machinery has been set up to test applicants by standards fair to all and to separate the fit from the unfit. Only those who pass the test are allowed to enter the profession, and only those who maintain the standards are allowed to remain in it. Re Rouss: 7 Membership in the bar is a privilege burdened with conditions, and a fair private and professional character is one of them; to refuse admission to an unworthy applicant is not to punish him for past offense: an examination into character , like the examination into learning, is merely a test of fitness. Cobb vs. Judge of Superior Court: 8 Attorney's are licensed because of their learning and ability, so that they may not only protect the rights and interests of their clients, but be able to assist court in the trial of the cause. Yet what protection to clients or assistance to courts could such agents give? They are required to be of good moral character , so that the agents and officers of the court, which they are, may not bring discredit upon the due administration of the law, and it is of the highest possible consequence that both those who have not such qualifications in the first instance, or who, having had them, have fallen therefrom, shall not be permitted to appear in courts to aid in the administration of justice .
It has also been stressed that the requirement of good moral character is, in fact, of greater importance so far as the general public and the proper administration of justice are concerned, than the possession of legal learning:
. . . (In re Applicants for License, 55 S.E. 635, 143 N.C. 1, 10 L.R.A. [N.S.] 288, 10 Ann./Cas. 187): The public policy of our state has always been to admit no person to the practice of the law unless he covered an upright moral character. The possession of this by the attorney
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is more important, if anything, to the public and to the proper administration of justice than legal learning. Legal learning may be acquired in after years, but if the applicant passes the threshold of the bar with a bad moral character the chances are that his character will remain bad, and that he will become a disgrace instead of an ornament to his great calling a curse instead of a benefit to his community a Quirk, a Gammon or a Snap, instead of a Davis, a Smith or a Ruffin. 9
All aspects of moral character and behavior may be inquired into in respect of those seeking admission to the Bar. The scope of such inquiry is, indeed, said to be properly broader than inquiry into the moral proceedings for disbarment:
Re Stepsay: 10 The inquiry as to the moral character of an attorney in a proceeding for his admission to practice is broader in scope than in a disbarment proceeding. Re Wells: 11 . . . that an applicant's contention that upon application for admission to the California Bar the court cannot reject him for want of good moral character unless it appears that he has been guilty of acts which would be cause for his disbarment or suspension, could not be sustained; that the inquiry is broader in its scope than that in a disbarment proceeding, and the court may receive any evidence which tends to show the applicant's character as respects honesty, integrity, and general morality, and may no doubt refuse admission upon proofs that might not establish his guilt of any of the acts declared to be causes for disbarment.
The requirement of good moral character to be satisfied by those who would seek admission to the bar must of necessity be more stringent than the norm of conduct expected from members of the general public. There is a very real need to prevent a general perception that entry into the legal profession is open to individuals with inadequate moral qualifications. The growth of such a perception would signal the progressive destruction of our people's confidence in their courts of law and in our legal system as we know it. 12 Mr. Argosino's participation in the deplorable "hazing" activities certainly fell far short of the required standard of good moral character. The deliberate (rather than merely accidental or inadvertent) infliction of severe physical injuries which proximately led to the death of the unfortunate Raul Camaligan, certainly indicated serious character flaws on the part of those who inflicted such injuries. Mr. Argosino and his co-accused had failed to discharge their moral duty to protect the life and wellbeing of a "neophyte" who had, by seeking admission to the fraternity involved, reposed trust and confidence in all of them that, at the very least, he would not be beaten and kicked to death like a useless stray dog. Thus, participation in the prolonged and mindless physical beatings inflicted upon Raul Camaligan constituted evident rejection of that moral duty and was totally irresponsible behavior, which makes impossible a finding that the participant was then possessed of good moral character. Now that the original period of probation granted by the trial court has expired, the Court is prepared to consider de novo the question of whether applicant A.C. Argosino has purged himself of the obvious deficiency in moral character referred to above. We stress that good moral character is a requirement possession of which must be demonstrated not only at the time of application for permission to take the bar examinations but also, and more importantly, at the time of application for admission to the bar and to take the attorney's oath of office.
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Mr. Argosino must, therefore, submit to this Court, for its examination and consideration, evidence that he may be now regarded as complying with the requirement of good moral character imposed upon those seeking admission to the bar. His evidence may consist, inter alia, of sworn certifications from responsible members of the community who have a good reputation for truth and who have actually known Mr. Argosino for a significant period of time, particularly since the judgment of conviction was rendered by Judge Santiago. He should show to the Court how he has tried to make up for the senseless killing of a helpless student to the family of the deceased student and to the community at large. Mr. Argosino must, in other words, submit relevant evidence to show that he is a different person now, that he has become morally fit for admission to the ancient and learned profession of the law. Finally, Mr. Argosino is hereby DIRECTED to inform this Court, by appropriate written manifestation, of the names and addresses of the father and mother (in default thereof, brothers and sisters, if any, of Raul Camaligan), within ten (10) day from notice hereof. Let a copy of this Resolution be furnished to the parents or brothers and sisters, if any, of Raul Camaligan. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero and Melo, JJ., concur. Bellosillo, J. is on leave.
IN RE: AL ARGOSINO, BAR MATTER NO. 712, MARCH 19, 1997
EN BANC [BAR MATTER No. 712. March 19, 1997] RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYER'S OATH RESOLUTION PADILLA, J.: Petitioner Al Caparros Argosino passed the bar examinations held in 1993. The Court however deferred his oath-taking due to his previous conviction for Reckless Imprudence Resulting In Homicide. The criminal case which resulted in petitioner' s conviction, arose from the death of a neophyte during fraternity initiation rites sometime in September 1991. Petitioner and seven (7) other accused initially entered pleas of not guilty to homicide charges. The eight (8) accused later withdrew their initial pleas and upon re-arraignment all pleaded guilty to reckless imprudence resulting in homicide. On the basis of such pleas, the trial court rendered judgment dated 11 February 1993 imposing on each of the accused a sentence of imprisonment of from two (2) years four (4) months and one (1) day to four (4) years. On 18 June 1993, the trial court granted herein petitioner's application for probation.
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On 11 April 1994, the trial court issued an order approving a report dated 6 April 1994 submitted by the Probation Officer recommending petitioner's discharge from probation On 14 April 1994, petitioner filed before this Court a petition to be allowed to take the lawyer's oath based on the order of his discharge from probation. On 13 July 1995, the Court through then Senior Associate Justice Florentino P. Feliciano issued a resolution requiring petitioner Al C. Argosino to submit to the Court evidence that he may now be regarded as complying with the requirement of good moral character imposed upon those seeking admission to the bar. In compliance with the above resolution, petitioner submitted no less than fifteen (15) certifications/letters executed by among others two (2) senators, five (5) trial court judges, and six (6) members of religious orders. Petitioner likewise submitted evidence that a scholarship foundation had been established in honor of Raul Camaligan, the hazing victim, through joint efforts of the latter's family and the eight (8) accused in the criminal case. On 26 September 1995, the Court required Atty Gilbert Camaligan, father of Raul, to comment on petitioner's prayer to be allowed to take the lawyer's oath. In his comment dated 4 December 1995, Atty. Camaligan states that: a. He still believes that the infliction of severe physical injuries which led to the death of his son was deliberate rather than accidental. The offense therefore was not only homicide but murder since the accused took advantage of the neophyte's helplessness implying abuse of confidence, taking advantage of superior strength and treachery. b. He consented to the accused's plea of guilt to the lesser offense of reckless imprudence resulting in homicide only out of pity for the mothers of the accused and a pregnant wife of one of the accused who went to their house on Christmas day 1991 and Maundy Thursday 1992, literally on their knees, crying and begging for forgiveness and compassion. They also told him that the father of one of the accused had died of a heart attack upon learning of his son's involvement in the incident. c. As a Christian, he has forgiven petitioner and his co-accused for the death of his son. However, as a loving father who had lost a son whom he had hoped would succeed him in his law practice, he still feels the pain of an untimely demise and the stigma of the gruesome manner of his death. d. He is not in a position to say whether petitioner is now morally fit for admission to the bar. He therefore submits the matter to the sound discretion of the Court. The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration o f justice. It is the sworn duty of this Court not only to "weed out" lawyers who have become a disgrace to the noble profession of the law but, also of equal importance, to prevent "misfits" from taking the lawyer' s oath, thereby further tarnishing the public image of lawyers which in recent years has undoubtedly become less than irreproachable. The resolution of the issue before us required a weighing and re-weighing of the reasons for allowing or disallowing petitioner's admission to the practice of law. The senseless beatings inf1icted upon Raul Camaligan
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constituted evident absence of that moral fitness required for admission to the bar since they were totally irresponsible, irrelevant and uncalled for. In the 13 July 1995 resolution in this case we stated: "x x x participation in the prolonged and mindless physical behavior, [which] makes impossible a finding that the participant [herein petitioner] was then possessed of good moral character."i[1] In the same resolution, however, we stated that the Court is prepared to consider de novo the question of whether petitioner has purged himself of the obvious deficiency in moral character referred to above. Before anything else, the Court understands and shares the sentiment of Atty. Gilbert Camaligan. The death of one's child is, for a parent, a most traumatic experience. The suffering becomes even more pronounced and profound in cases where the death is due to causes other than natural or accidental but due to the reckless imprudence of third parties. The feeling then becomes a struggle between grief and anger directed at the cause of death. Atty. Camaligan's statement before the Court manifesting his having forgiven the accused is no less than praiseworthy and commendable. It is exceptional for a parent, given the circumstances in this cases, to find room for forgiveness. However, Atty. Camaligan admits that he is still not in a position to state if petitioner is now morally fit to be a lawyer. After a very careful evaluation of this case, we resolve to allow petitioner Al Caparros Argosino to take the lawyer's oath, sign the Roll of Attorneys and practice the legal profession with the following admonition: In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes that Mr. Argosino is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. The Court is persuaded that Mr. Argosino has exerted all efforts to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for practicing law. Every lawyer should at ALL TIMES weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned. The Court sincerely hopes that Mr. Argosino will continue with the assistance he has been giving to his community. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society. PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby ALLOWED to take the lawyer's oath on a date to be set by the Court, to sign the Roll of Attorneys and, thereafter, to practice the legal profession. SO ORDERED.
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Narvasa, C.J., (Chairman), Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.
IN RE: BORROMEO, 241 SCRA 405 EN BANC
A.M. No. 93-7-696-0 February 21, 1995 In Re JOAQUIN T. BORROMEO, Ex Rel. Cebu City Chapter of the Integrated Bar of the Philippines. RESOLUTION
PER CURIAM: It is said that a little learning is a dangerous thing; and that he who acts as his own lawyer has a fool for a client. There would seem to be more than a grain of truth in these aphorisms; and they appear to find validation in the proceeding at bench, at least. The respondent in this case, Joaquin T. Borromeo, is not a lawyer but has apparently read some law books, and ostensibly come to possess some superficial awareness of a few substantive legal principles and procedural rules. Incredibly, with nothing more than this smattering of learning, the respondent has, for some sixteen (16) years now, from 1978 to the present, been instituting and prosecuting legal proceedings in various courts, dogmatically pontificating on errors supposedly committed by the courts, including the Supreme Court. In the picturesque language of former Chief Justice Enrique M. Fernando, he has "with all the valor of ignorance," 1 been verbally jousting with various adversaries in diverse litigations; or in the words of a well-known song, rushing into arenas "where angels fear to tread." Under the illusion that his trivial acquaintance with the law had given him competence to undertake litigation, he has ventured to represent himself in numerous original and review proceedings. Expectedly, the results have been disastrous. In the process, and possibly in aid of his interminable and quite unreasonable resort to judicial proceedings, he has seen fit to compose and circulate many scurrilous statements against courts, judges and their employees, as well as his adversaries, for which he is now being called to account. Respondent Borromeo's ill-advised incursions into lawyering were generated by fairly prosaic transactions with three (3) banks which came to have calamitous consequences for him chiefly because of his failure to comply with his contractual commitments and his stubborn insistence on imposing his own terms and conditions for their fulfillment. These banks were: Traders Royal Bank (TRB), United Coconut Planters Bank (UCPB), Security Bank & Trust Co. (SBTC). Borromeo obtained loans or credit accommodation from them, to secure which he constituted mortgages over immovables belonging to him or members of his family, or third persons. He failed to pay these
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obligations, and when demands were made for him to do so, laid down his own terms for their satisfaction which were quite inconsistent with those agreed upon with his obligees or prescribed by law. When, understandably, the banks refused to let him have his way, he brought suits right and left, successively if not contemporaneously, against said banks, its officers, and even the lawyers who represented the banks in the actions brought by or against him. He sued, as well, the public prosecutors, the Judges of the Trial Courts, and the Justices of the Court of Appeals and the Supreme Court who at one time or another, rendered a judgment, resolution or order adverse to him, as well as the Clerks of Court and other Court employees signing the notices thereof. In the aggregate, he has initiated or spawned in different fora the astounding number of no less-than fifty (50) original or review proceedings, civil, criminal, administrative. For some sixteen (16) years now, to repeat, he has been continuously cluttering the Courts with his repetitive, and quite baseless if not outlandish complaints and contentions. I. CASES INVOLVING TRADERS ROYAL BANK (TRB) The first bank that Joaquin T. Borromeo appears to have dealt with was the Traders Royal Bank (TRB). On June 2, 1978, he got a loan from it in the sum of P45,000.00. This he secured by a real estate mortgage created over two parcels of land covered by TCT No. 59596 and TCT No. 59755 owned, respectively, by Socorro Borromeo-Thakuria (his sister) and Teresita Winniefred Lavarino. On June 16, 1978, Borromeo obtained a second loan from TRB in the amount of P10,000.00, this time giving as security a mortgage over a parcel of land owned by the Heirs of Vicente V. Borromeo, covered by TCT No. RT-7634. Authority to mortgage these three lots was vested in him by a Special Power of Attorney executed by their respective owners. Additionally, on April 23, 1980, Borromeo obtained a Letter of Credit from TRB in the sum of P80,000.00, in consideration of which he executed a Trust Receipt (No. 595/80) falling due on July 22, 1980. 2 Borromeo failed to pay the debts as contracted despite demands therefor. Consequently, TRB caused the extra-judicial foreclosure of the mortgages given to secure them. At the public sale conducted by the sheriff on September 7, 1981, the three mortgaged parcels of land were sold to TRB as the highest bidder, for P73,529.09. Within the redemption period, Borromeo made known to the Bank his intention to redeem the properties at their auction price. TRB manager Blas C. Abril however made clear that Borromeo would also have to settle his outstanding account under Trust Receipt No. 595/80 (P88,762.78), supra. Borromeo demurred, and this disagreement gave rise to a series of lawsuits commenced by him against the Bank, its officers and counsel, as aforestated. A. CIVIL CASES 1. RTC Case No. R-22506; CA G.R. CV No. 07015; G.R. No. 83306 On October 29, 1982 Borromeo filed a complaint in the Cebu City Regional Trial Court for specific performance and damages against TRB and its local manager, Blas Abril, docketed as Civil Case No. R-22506. The complaint sought to compel defendants to allow redemption of the foreclosed
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properties only at their auction price, with stipulated interests and charges, without need of paying the obligation secured by the trust receipt above mentioned. Judgment was rendered in his favor on December 20, 1984 by Branch 23 of the Cebu City RTC; but on defendants' appeal to the Court of Appeals docketed as CA-G.R. CV No. 07015 the judgment was reversed, by decision dated January 27, 1988. The Court of Appeals held that the "plaintiff (Borromeo) has lost his right of redemption and can no longer compel defendant to allow redemption of the properties in question." Borromeo elevated the case to this court where his appeal was docketed as G.R. No. 83306. By Resolution dated August 15, 1988, this Court's First Division denied his petition for review "for failure . . . to sufficiently show that the respondent Court of Appeals had committed any reversible error in its questioned judgment, it appearing on the contrary that the said decision is supported by substantial evidence and is in accord with the facts and applicable law." Reconsideration was denied, by Resolution dated November 23, 1988. A second motion for reconsideration was denied by Resolution dated January 30, 1989, as was a third such motion, by Resolution dated April 19, 1989. The last resolution also directed entry of judgment and the remand of the case to the court of origin for prompt execution of judgment. Entry of judgment was made on May 12, 1989. By Resolution dated August 7, 1989, the Court denied another motion of Borromeo to set aside judgment; and by Resolution dated December 20, 1989, the Court merely noted without action his manifestation and motion praying that the decision of the Court of Appeals be overturned, and declared that "no further motion or pleading . . . shall be entertained . . . ." 2. RTC Case No. CEB 8750; CA-G.R. SP No. 22356 The ink was hardly dry on the resolutions just mentioned before Borromeo initiated another civil action in the same Cebu City Regional Court by which he attempted to litigate the same issues. The action, against the new TRB Branch Manager, Jacinto Jamero, was docketed as Civil Case No. CEB8750. As might have been anticipated, the action was, on motion of the defense, dismissed by Order dated May 18, 1990, 3 on the ground of res judicata, the only issue raised in the second action i.e., Borromeo's right to redeem the lots foreclosed by TRB having been ventilated in Civil Case No. R22506 (Joaquin T. Borromeo vs. Blas C. Abril and Traders Royal Bank) ( supra) and, on appeal, decided with finality by the Court of Appeals and the Supreme Court in favor of defendants therein. The Trial Court's judgment was affirmed by the Court of Appeals in CA-G.R. SP No. 22356. 3. RTC Case No. CEB-9485; CA-G.R. SP No. 28221 In the meantime, and during the pendency of Civil Case No. R-22506, TRB consolidated its ownership over the foreclosed immovables. Contending that act of consolidation amounted to a criminal offense, Borromeo filed complaints in the Office of the City Prosecutor of Cebu against the bank officers and lawyers. These complaints were however, and quite correctly, given short shrift by that Office. Borromeo then filed suit in the Cebu City RTC, this time not only against the TRB, TRB officers Jacinto Jamero and Arceli Bustamante, but also against City Prosecutor Jufelinito Pareja and his assistants, Enriqueta Belarmino and Eva A. Igot, and the TRB lawyers, Mario Ortiz and the law, firm, HERSINLAW. The action was docketed as Civil Case No. CEB-9485. The complaint charged Prosecutors Pareja, Belarmino and Igot with manifest partiality and bias for dismissing the criminal cases just mentioned; and faulted TRB and its manager, Jamero, as well as its lawyers, for
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consolidating the titles to the foreclosed properties in favor of the bank despite the pendency of Case No. R-22506. This action also failed. On defendants' motion, it was dismissed on February 19, 1992 by the RTC. (Branch 22) on the ground of res judicata (being identical with Civil Case Nos. R-22506 and CEB-8750, already decided with finality in favor of TRB), and lack of cause of action (as to defendants Pareja, Belarmino and Igot). Borromeo's certiorari petition to the Court of Appeals (CA G.R. SP No. 28221) was dismissed by that Court's 16th Division 4 on October 6, 1992, for the reason that the proper remedy was appeal. 4. RTC Case No. CEB-10368; CA-G.R. SP No. 27100 Before Case No. CEB-9845 was finally decided, Borromeo filed, on May 30, 1991, still another civil action for the same cause against TRB, its manager, Jacinto Jamero, and its lawyers, Atty. Mario Ortiz and the HERSINLAW law office. This action was docketed as Civil Case No. CEB-10368, and was described as one for "Recovery of Sums of Money, Annulment of Titles with Damages." The case met the same fate as the others. It was, on defendants' motion, dismissed on September 9, 1991 by the RTC (Branch 14 5) on the ground of litis pendentia. The RTC ruled that
Civil Case No. CEB-9485 will readily show that the defendants therein, namely the Honorable Jufelinito Pareja, Enriqueta Belarmino, Eva Igot, Traders Royal Bank, Arceli Bustamante, Jacinto Jamero, Mario Ortiz and HERSINLAW are the same persons or nearly all of them who are impleaded as defendants in the present Civil Case No. CEB-10368, namely, the Traders Royal Bank, Jacinto Jamero, Mario Ortiz and HERSINLAW. The only difference is that more defendants were impleaded in Civil Case No. CEB-9485, namely, City Prosecutor Jufelinito Pareja and his assistants Enriqueta Belarmino and Eva Igot. The inclusion of the City Prosecutor and his two assistants in Civil Case No. CEB-9485 was however merely incidental as apparently they had nothing to do with the questioned transaction in said case. . . .
The Court likewise found that the reliefs prayed for were the same as those sought in Civil Case No. CEB-9485, and the factual bases of the two cases were essentially the same the alleged fraudulent foreclosure and consolidation of the three properties mortgaged years earlier by Borromeo to TRB. For some reason, the Order of September 9, 1991 was set aside by an Order rendered by another Judge on November 11, 1991 6 the Judge who previously heard the case having inhibited himself; but this Order of November 11, 1991 was, in turn, nullified by the Court of Appeals (9th Division), by Decision promulgated on March 31, 1992 in CA-G.R. SP No. 27100 (Traders Royal Bank vs. Hon. Celso M. Gimenez, etc. and Joaquin T. Borromeo), 7 which decision also directed dismissal of Borromeo's complaint. 5. RTC Case No. CEB-6452 When a new branch manager, Ronald Sy, was appointed for TRB, Cebu City, Borromeo forthwith made that event the occasion for another new action, against TRB, Ronald Sy, and the bank's attorneys Mario Ortiz, Honorato Hermosisima, Jr., Wilfredo Navarro and HERSINLAW firm. This action was docketed as Civil Case No. CEB-6452, and described as one for "Annulment of Title with Damages." The complaint, dated October 20, 1987, again involved the foreclosure of the three (3)
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immovables above mentioned, and was anchored on the alleged malicious, deceitful, and premature consolidation of titles in TRB's favor despite the pendency of Civil Case No. 22506. On defendant's motion, the trial court 8 dismissed the case on the ground of prematurity, holding that "(a)t this point . . ., plaintiff's right to seek annulment of defendant Traders Royal Bank's title will only accrue if and when plaintiff will ultimately and finally win Civil Case No. R-22506." 6. RTC Case No. CEB-8236 Having thus far failed in his many efforts to demonstrate to the courts the "merit" of his cause against TRB and its officers and lawyers, Borromeo now took a different tack by also suing (and thus also venting his ire on) the members of the appellate courts who had ruled adversely to him. He filed in the Cebu City RTC, Civil Case No. CEB-8236, impleading as defendants not only the same parties he had theretofore been suing TRB and its officers and lawyers (HERSINLAW, Mario Ortiz) but also the Chairman and Members of the First Division of the Supreme Court who had repeatedly rebuffed him in G.R. No. 83306 (SEE sub-head I, A, 1, supra), as well as the Members of the 5th, 9th and 10th Divisions of the Court of Appeals who had likewise made dispositions unfavorable to him. His complaint, dated August 22, 1989, aimed to recover damages from the defendants Justices for
. . . maliciously and deliberately stating blatant falsehoods and disregarding evidence and pertinent laws, rendering manifestly unjust and biased resolutions and decisions bereft of signatures, facts or laws in support thereof, depriving plaintiff of his cardinal rights to due process and against deprivation of property without said process, tolerating, approving and legitimizing the patently illegal, fraudulent, and contemptuous acts of defendants TRB, (which) constitute a) GRAVE DERELICTION OF DUTY AND ABUSE OF POWER emanating from the people, b) FLAGRANT VIOLATIONS OF THE CONSTITUTION, CARDINAL PRIMARY RIGHTS DUE PROCESS, ART. 27, 32, CIVIL CODE, Art. 208, REV. PENAL CODE, and R.A. 3019, for which defendants must be held liable under said laws.
The complaint also prayed for reconveyance of the "fake titles obtained fraudulently by TRB/HERSINLAW," and recovery of "100,000.00 moral damages; 30,000.00 exemplary damages; and P5,000.00 litigation expenses." This action, too, met a quick and unceremonious demise. On motion of defendants TRB and HERSINLAW, the trial court, by Order dated November 7, 1989, 9 dismissed the case. 7. RTC Case No. CEB-13069 It appears that Borromeo filed still another case to litigate the same cause subject of two (2) prior actions instituted by him. This was RTC Case No. CEB-13069, against TRB and the latter's lawyers, Wilfredo Navarro and Mario Ortiz. The action was dismissed in an Order dated October 4, 1993, 10 on the ground of res judicata the subject matter being the same as that in Civil Case No. R-22506, decision in which was affirmed by the Court of Appeals in CA-G.R. CV No. 07015 as well as by this Court in G.R. No. 83306 11 and litis pendentia the subject matter being also the same as that in Civil Case No. CEB-8750, decision in which was affirmed by the Court of Appeals in CA G.R. SP No. 22356. 12 8. RTC Criminal Case No. CBU-19344; CA-G.R. SP No. 28275; G.R. No. 112928 On April 17, 1990 the City Prosecutor of Cebu City filed an information with the RTC of Cebu (Branch 22) against Borromeo charging him with a violation of the Trust Receipts Law. 13 The case was
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docketed as Criminal Case No. CBU-19344. After a while, Borromeo moved to dismiss the case on the ground of denial of his right to a speedy trial. His motion was denied by Order of Judge Pampio A. Abarintos dated April 10, 1992. In the same order, His Honor set an early date for Borromeo's arraignment and placed the case "under a continuous trial system on the dates as may be agreed by the defense and prosecution." Borromeo moved for reconsideration. When his motion was again found without merit, by Order dated May 21, 1992, he betook himself to the Court of Appeals on a special civil action of certiorari, to nullify these adverse orders, his action being docketed as CA-G.R. SP No. 28275. Here again, Borromeo failed. The Court of Appeals declared that the facts did not show that there had been unreasonable delay in the criminal action against him, and denied his petition for being without merit. 14 Borromeo then filed a petition for review with this Court (G.R. No. 112928), but by resolution dated January 31, 1994, the same was dismissed for failure of Borromeo to comply with the requisites of Circulars Numbered 1-88 and 19-91. His motion for reconsideration was subsequently denied by Resolution dated March 23, 1994. a. Clarificatory Communications to Borromeo Re "Minute Resolutions" He next filed a Manifestation dated April 6, 1994 calling the Resolution of March 23, 1994 "UnConstitutional, Arbitrary and tyrannical and a gross travesty of 'Justice,'" because it was "signed only by a mere clerk and . . . (failed) to state clear facts and law," and "the petition was not resolved on MERITS nor by any Justice but by a mere clerk." 15 The Court responded with another Resolution, promulgated on June 22, 1994, and with some patience drew his attention to the earlier resolution "in his own previous case (Joaquin T. Borromeo vs. Court of Appeals and Samson Lao, G.R. No. 82273, 1 June 1990; 186 SCRA 1) 16 and on the same issue he now raises." Said Resolution of June 22, 1994, after reiterating that the notices sent by the Clerk of Court of the Court En Banc or any of the Divisions simply advise of and quote the resolution actually adopted by the Court after deliberation on a particular matter, additionally stated that Borromeo "knew, as well, that the communications (notices) signed by the Clerk of Court start with the opening clause
Quoted hereunder, for your information, is a resolution of the First Division of this Court dated. _________,
thereby indisputably showing that it is not the Clerk of Court who prepared or signed the resolutions." This was not, by the way, the first time that the matter had been explained to Borromeo. The record shows that on July 10, 1987, he received a letter from Clerk of Court Julieta Y. Carreon (of this Court's Third Division) dealing with the subject, in relation to G.R. No. 77243. 17 The same matter was also dealt with in the letter received by him from Clerk of Court Luzviminda D. Puno, dated April 4, 1989, and in the letter to him of Clerk of Court (Second Division) Fermin J. Garma, dated May 19, 1989. 18 And the same subject was treated of in another Resolution of this Court, notice of which was in due course served on him, to wit: that dated July 31, 1989, in G.R. No. 87897. 19
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B. CRIMINAL CASES Mention has already been made of Borromeo's attempt with "all the valor of ignorance" to fasten not only civil, but also criminal liability on TRB, its officers and lawyers. 20 Several other attempts on his part to cause criminal prosecution of those he considered his adversaries, will now be dealt with here. 1. I. S. Nos. 90-1187 and 90-1188 On March 7, 1990, Borromeo filed criminal complaints with the Office of the Cebu City Prosecutor against Jacinto Jamero (then still TRB Branch Manager), "John Doe and officers of Traders Royal Bank." The complaints (docketed as I.S. Nos. 90-1187-88) accused the respondents of "Estafa and Falsification of Public Documents." He claimed, among others that the bank and its officers, thru its manager, Jacinto Jamero, sold properties not owned by them: that by fraud, deceit and false pretenses, respondents negotiated and effected the purchase of the (foreclosed) properties from his (Borromeo's) mother, who "in duress, fear and lack of legal knowledge," agreed to the sale thereof for only P671,000.00, although in light of then prevailing market prices, she should have received P588,030.00 more. In a Joint Resolution dated April 11, 1990, 21 the Cebu City Fiscal's office dismissed the complaints observing that actually, the Deed of Sale was not between the bank and Borromeo's mother, but between the bank and Mrs. Thakuria (his sister), one of the original owners of the foreclosed properties; and that Borromeo, being a stranger to the sale, had no basis to claim injury or prejudice thereby. The Fiscal ruled that the bank's ownership of the foreclosed properties was beyond question as the matter had been raised and passed upon in a judicial litigation; and moreover, there was no proof of the document allegedly falsified nor of the manner of its falsification. a. I.S. Nos. 87-3795 and 89-4234 Evidently to highlight Borromeo's penchant for reckless filing of unfounded complaints, the Fiscal also adverted to two other complaints earlier filed in his Office by Borromeo involving the same foreclosed properties and directed against respondent bank officers' predecessors (including the former Manager, Ronald Sy) and lawyers both of which were dismissed for lack of merit. These were:
a. I. S. No. 87-3795 (JOAQUIN T. BORROMEO vs. ATTY. MARIO ORTIZ and RONALD SY) for "Estafa Through Falsification of Public Documents, Deceit and False Pretenses." This case was dismissed by Resolution dated January 19, 1988 of the City Prosecutor's Office because based on nothing more than a letter dated June 4, 1985, sent by Bank Manager Ronald Sy to the lessee of a portion of the foreclosed immovables, advising the latter to remit all rentals to the bank as new owner thereof, as shown by the consolidated title; and there was no showing that respondent Atty. Ortiz was motivated by fraud in notarizing the deed of sale in TRB's favor after the lapse of the period of redemption, or that Ortiz had benefited pecuniarily from the transaction to the prejudice of complainant; and b. I.S. No. 89-4234 (JOAQUIN T. BORROMEO vs. RONALD SY, ET AL.) for "Estafa Through False Pretenses and Falsification of Public Documents." This case was dismissed by Resolution dated January 31, 1990.
2. I.S.Nos. 88-205 to 88-207

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While Joaquin Borromeo's appeal (G.R. No. 83306) was still pending before the Supreme Court, 22 an affidavit was executed in behalf of TRB by Arceli Bustamante, in connection with the former's fire insurance claim over property registered in its name one of two immovables formerly owned by Socorro B. Thakuria (Joaquin Borromeo's sister) and foreclosed by said bank. 23 In that affidavit, dated September 10, 1987, Bustamante stated that "On 24 June 1983, TRB thru foreclosure acquired real property together with the improvements thereon which property is located at F. Ramos St., Cebu City covered by TCT No. 87398 in the name or TRB." The affidavit was notarized by Atty. Manuelito B. Inso. Claiming that the affidavit was "falsified and perjurious" because the claim of title by TRB over the foreclosed lots was a "deliberate, wilful and blatant fasehood in that, among others: . . . the consolidation was premature, illegal and invalid," Borromeo filed a criminal complaint with the Cebu City Fiscal's Office against the affiant (Bustamante) and the notarizing lawyer (Atty. Inso) for "falsification of public document, false pretenses, perjury." On September 28, 1988, the Fiscal's Office dismissed the complaint. 24 It found no untruthful statements in the affidavit or any malice in its execution, considering that Bustamante's statement was based on the Transfer Certificate of Title in TRB's file, and thus the document that Atty. Inso notarized was legally in order. 3. OMB-VIS-89-00136 This Resolution of this Court (First Division) in G.R. No. 83306 dated August 15, 1988 sustaining the judgment of the Court of Appeals (10th Division) of January 27, 1988 in CA-G.R. CV No. 07015, supra, was made the subject of a criminal complaint by Borromeo in the Office of the Ombudsman, Visayas, docketed as OMB-VIS-89-00136. His complaint against "Supreme Court Justice (First Div.) and Court of Appeals Justice (10th Div)" was dismissed for lack of merit in a Resolution issued on February 14, 1990 25 which, among other things, ruled as follows:
It should be noted and emphasized that complainant has remedies available under the Rules of Court, particularly on civil procedure and existing laws. It is not the prerogative of this Office to make a review of Decisions and Resolutions of judicial courts, rendered within their competence. The records do not warrant this Office to take further proceedings against the respondents. In addition, Sec. 20. of R.A. 6770, "the Ombudsman Act states that the Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that (1) the complainant had adequate remedy in another judicial or quasi-judicial body;" and Sec. 21 the same law provides that the Office of the Ombudsman does not have disciplinary authority over members of the Judiciary.
II. CASES INVOLVING UNITED COCONUT PLANTERS BANK (UCPB) As earlier stated, 26 Borromeo (together with a certain Mercader) also borrowed money from the United Coconut Planters Bank (UCPB) and executed a real estate mortgage to secure repayment thereof. The mortgage was constituted over a 122-square-meter commercial lot covered by TCT No. 75680 in Borromeo's name. This same lot was afterwards sold on August 7, 1980 by Borromeo to one Samson K. Lao for P170,000.00, with a stipulation for its repurchase ( pacto de retro) by him (Borromeo, as the vendor). The sale was made without the knowledge and consent of UCPB. A. CIVIL CASES
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Now, just as he had defaulted in the payment of the loans and credit accommodations he had obtained from the Traders Royal Bank, Borromeo failed in the fulfillment of his obligations to the UCPB. Shortly after learning of Borromeo's default, and obviously to obviate or minimize the ill effects of the latter's delinquency, Lao applied with the same bank (UCPB) for a loan, offering the property he had purchased from Borromeo as collateral. UCPB was not averse to dealing with Lao but imposed several conditions on him, one of which was for Lao to consolidate his title over the property. Lao accordingly instituted a suit for consolidation of title, docketed as Civil Case No. R-21009. However, as will shortly be narrated, Borromeo opposed the consolidation prayed for. As a result, UCPB cancelled Lao's application for a loan and itself commenced proceedings foreclose the mortgage constituted by Borromeo over the property. This signaled the beginning of court battles waged by Borromeo not only against Lao, but also against UCPB and the latter's lawyers, battles which he (Borromeo) fought contemporaneously with his court war with Traders Royal Bank. 1. RTC Case No. R-21009; AC-G.R. No. CV-07396; G.R. No. 82273 The first of this new series of court battles was, as just stated, the action initiated by Samson Lao in the Regional Trial Court of Cebu (Branch 12), docketed as Case No. R-21009, for consolidation of title in his favor over the 122-square-meter lot subject of the UCPB mortgage, in accordance with Article 1007 of the Civil Code. In this suit Lao was represented by Atty. Alfredo Perez, who was later substituted by Atty. Antonio Regis. Borromeo contested Lao's application. Judgment was in due course rendered by the RTC (Branch 12, Hon. Francis Militante, presiding) denying consolidation because the transaction between the parties could not be construed as a sale with pacto de retro being in law an equitable mortgage; however, Borromeo was ordered to pay Lao the sum of P170,000.00, representing the price stipulated in the sale a retro, plus the amounts paid by Lao for capital gains and other taxes in connection with the transaction (P10,497.50). Both Lao and Borromeo appealed to the Court of Appeals. Lao's appeal was dismissed for failure of his lawyer to file brief in his behalf. Borromeo's appeal AC-G.R. No. CV-07396 resulted in a Decision by the Court of Appeals dated December 14, 1987, affirming the RTC's judgment in toto. The Appellate Court's decision was, in turn, affirmed by this Court (Third Division) in a four-page Resolution dated September 13, 1989, promulgated in G.R. No. 82273 an appeal also taken by Borromeo. Borromeo filed a motion for reconsideration on several grounds, one of which was that the resolution of September 13, 1989 was unconstitutional because contrary to "Sec. 4 (3), Art. VIII of the Constitution," it was not signed by any Justice of the Division, and there was "no way of knowing which justices had deliberated and voted thereon, nor of any concurrence of at least three of the members." Since the motion was not filed until after there had been an entry of judgment, Borromeo having failed to move for reconsideration within the reglementary period, the same was simply noted without action, in a Resolution dated November 27, 1989.
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Notices of the foregoing Resolutions were, in accordance with established rule and practice, sent to Borromeo over the signatures of the Clerk of Court and Assistant Clerk of Court (namely: Attys. Julieta Y. CARREON and Alfredo MARASIGAN, respectively). a. RTC Case No. CEB-8679 Following the same aberrant pattern of his judicial campaign against Traders Royal Bank, Borromeo attempted to vent his resentment even against the Supreme Court officers who, as just stated, had given him notices of the adverse dispositions of this Court's Third Division. He filed Civil Case No. CEB-8679 in the Cebu City RTC (CFI) for recovery of damages against "Attys. Julieta Y. Carreon and Alfredo Marasigan, Division Clerk of Court and Asst. Division Clerk of Court, Third Division, and Atty. Jose I. Ilustre, Chief of Judicial Records Office." He charged them with usurpation of judicial functions, for allegedly "maliciously and deviously issuing biased, fake, baseless and unconstitutional 'Resolution' and 'Entry of Judgment' in G.R. No. 82273." Summonses were issued to defendants by RTC Branch 18 (Judge Rafael R. Ybaez, presiding). These processes were brought to the attention of this Court's Third Division. The latter resolved to treat the matter as an incident in G.R. No. 82273, and referred it to the Court En Banc on April 25, 1990. By Resolution (issued in said G.R. No. 82273, supra) dated June 1, 1990, the Court En Banc ordered Judge Ybaez to quash the summonses, to dismiss Civil Case No. CEB-8679, and "not to issue summons or otherwise to entertain cases of similar nature which may in the future be filed in his court." Accordingly, Judge Ibaez issued an Order on June 6, 1990 quashing the summonses and dismissing the complaint in said Civil Case No. CEB-8679. The Resolution of June 1, 1990 27 explained to Borromeo in no little detail the nature and purpose of notices sent by the Clerks of Court of decisions or resolutions of the Court En Banc or the Divisions, in this wise:
This is not the first time that Mr. Borromeo has filed charges/complaints against officials of the Court. In several letter complaints filed with the courts and the Ombudsman, Borromeo had repeatedly alleged that he "suffered injustices," because of the disposition of the four (4) cases he separately appealed to this Court which were resolved by minute resolutions, allegedly in violation of Sections 4 (3), 13 and 14 of Article VIII of the 1987 Constitution. His invariable complaint is that the resolutions which disposed of his cases do not bear the signatures of the Justices who participated in the deliberations and resolutions and do not show that they voted therein. He likewise complained that the resolutions bear no certification of the Chief Justice and that they did not state the facts and the law on which they were based and were signed only by the Clerks of Court and therefore "unconstitutional, null and void." xxx xxx xxx The Court reminds all lower courts, lawyers, and litigants that it disposes of the bulk of its cases by minute resolutions and decrees them as final and executory, as were a case is patently without merit, where the issues raised are factual in nature, where the decision appealed from is in accord with the facts of the case and the applicable laws, where it is clear from the records that the petition is filed merely to forestall the early execution of judgment and for non-compliance with the rules. The resolution denying due course always gives the legal basis. As emphasized in In Re: Wenceslao Laureta, 148 SCRA 382, 417 [1987], "[T]he Court is not 'duty bound' to render signed Decisions all the time. It has ample discretion to formulate Decisions and/or Minute Resolutions, provided a legal basis is given, depending on its evaluation of a case" . . . This is the only way whereby it can act on all cases filed before it and, accordingly, discharge its constitutional functions. . . .
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. . . (W)hen the Court, after deliberating on a petition and any subsequent pleadings, manifestations, comments, or motions decides to deny due course to the petition and states that the questions raised are factual, or no reversible error in the respondent court's decision is shown, or for some other legal basis stated in the resolution, there is sufficient compliance with the constitutional requirement . . . (of Section 14, Article VIII of the Constitution "that no petition for review or motion for reconsideration shall be refused due course or denied without stating the legal basis thereof"). For a prompt dispatch of actions of the Court, minute resolutions are promulgated by the Court through the Clerk of Court, who takes charge of sending copies thereof to the parties concerned by quoting verbatim the resolution issued on a particular case. It is the Clerk of Court's duty to inform the parties of the action taken on their cases quoting the resolution adopted by the Court. The Clerk of Court never participates in the deliberations of a case. All decisions and resolutions are actions of the Court. The Clerk of Court merely transmits the Court's action. This was explained in the case G.R. No. 56280, "Rhine Marketing Corp. v. Felix Gravante, et al.," where, in a resolution dated July 6, 1981, the Court said "[M]inute resolutions of this Court denying or dismissing unmeritorious petitions like the petition in the case at bar, are the result of a thorough deliberation among the members of this Court, which does not and cannot delegate the exercise of its judicial functions to its Clerk of Court or any of its subalterns, which should be known to counsel. When a petition is denied or dismissed by this Court, this Court sustains the challenged decision or order together with its findings of facts and legal conclusions. Minute resolutions need not be signed by the members of the Court who took part in the deliberations of a case nor do they require the certification of the Chief Justice. For to require members of the Court to sign all resolutions issued would not only unduly delay the issuance of its resolutions but a great amount of their time would be spent on functions more properly performed by the Clerk of Court and which time could be more profitably used in the analysis of cases and the formulation of decisions and orders of important nature and character. Even with the use of this procedure, the Court is still struggling to wipe out the backlogs accumulated over the years and meet the ever increasing number of cases coming to it. ...
b. RTC CIVIL CASE NO. CEB-(6501) 6740; G.R. No. 84054 It is now necessary to digress a little and advert to actions which, while having no relation to the UCPB, TRB or SBTC, are relevant because they were the predicates for other suits filed by Joaquin Borromeo against administrative officers of the Supreme Court and the Judge who decided one of the cases adversely to him. The record shows that on or about December 11, 1987, Borromeo filed a civil action for damages against a certain Thomas B. Tan and Marjem Pharmacy, docketed as Civil Case No. CEB-6501. On January 12, 1988, the trial court dismissed the case, without prejudice, for failure to state a cause of action and prematurity (for non-compliance with P.D. 1508). What Borromeo did was simply to re-file the same complaint with the same Court, on March 18, 1988. This time it was docketed as Civil Case No. CEB-6740, and assigned to Branch 17 of the RTC of Cebu presided by Hon. Mario Dizon. Again, however, on defendants' motion, the trial court dismissed the case, in an order dated May 28, 1988. His first and second motions for reconsideration having been denied, Borromeo filed a petition for review before this Court, docketed as G.R. No. 84054 (Joaquin T. Borromeo vs. Tomas Tan and Non. Mario Dizon). In a Resolution dated August 3, 1988, the Court required petitioner to comply with the rules by submitting a verified statement of material dates and paying the docket and legal research fund fees; it also referred him to the Citizens Legal Assistance Office for help in the case. His petition was
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eventually dismissed by Resolution of the Second Division dated November 21, 1988, for failure on his part to show any reversible error in the trial court's judgment. His motion for reconsideration was denied with finality, by Resolution dated January 18, 1989. Borromeo wrote to Atty. Fermin J. Garma (Clerk of Court of the Second Division) on April 27, 1989 once more remonstrating that the resolutions received by him had not been signed by any Justice, set forth no findings of fact or law, and had no certification of the Chief Justice. Atty. Garma replied to him on May 19, 1989, pointing out that "the minute resolutions of this Court denying dismissing petitions, like the petition in the case at bar, which was denied for failure of the counsel and/or petitioner to sufficiently show that the Regional Trial Court of Cebu, Branch 17, had committed any reversible error in the questioned judgment [resolution dated November 21, 1988], are the result of a thorough deliberation among the members of this Court, which does not and cannot delegate the exercise of its judicial function to its Clerk of Court or any of its subalterns. When the petition is denied or dismissed by the Court, it sustains the challenged decision or order together with its findings of facts and legal conclusions." Borromeo obviously had learned nothing from the extended Resolution of June 1, 1990 in G.R. No. 82273, supra (or the earlier communications to him on the same subject) which had so clearly pointed out that minute resolutions of the Court are as much the product of the Members' deliberations as fullblown decisions or resolutions, and that the intervention of the Clerk consists merely in the ministerial and routinary function of communicating the Court's action to the parties concerned. c. RTC Case No. CEB-9042 What Borromeo did next, evidently smarting from this latest judicial rebuff, yet another in an already long series, was to commence a suit against Supreme Court (Second Division) Clerk of Court Fermin J. Garma and Assistant Clerk of Court Tomasita Dris. They were the officers who had sent him notices of the unfavorable resolutions in G.R. No. 84054, supra. His suit, filed on June 1, 1990, was docketed as Case No. CEB-9042 (Branch 8, Hon. Bernardo Salas presiding). Therein he complained essentially of the same thing he had been harping on all along: that in relation to G.R. No. 91030 in which the Supreme Court dismissed his petition for "technical reasons" and failure to demonstrate any reversible error in the challenged judgment the notice sent to him of the "unsigned and unspecific" resolution of February 19, 1990, denying his motion for reconsideration had been signed only by the defendant clerks of court and not by the Justices. According to him, he had thereupon written letters to defendants demanding an explanation for said "patently unjust and unConstitutional resolutions," which they ignored; defendants had usurped judicial functions by issuing resolutions signed only by them and not by any Justice, and without stating the factual and legal basis thereof; and defendants' "wanton, malicious and patently abusive acts" had caused him "grave mental anguish, severe moral shock, embarrassment, sleepless nights and worry;" and consequently, he was entitled to moral damages of no less than P20,000.00 and exemplary damages of P10,000.00, and litigation expenses of P5,000.00. On June 8, 1990, Judge Renato C. Dacudao ordered the records of the case transmitted to the Supreme Court conformably with its Resolution dated June 1, 1990 in G.R. No. 82273, entitled "Joaquin T. Borromeo vs. Hon. Court of Appeals and Samson-Lao," supra directing that all complaints against officers of that Court be forwarded to it for appropriate action. 28
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Borromeo filed a "Manifestation/Motion" dated June 27, 1990 asking the Court to "rectify the injustices" committed against him in G.R. Nos. 83306, 84999, 87897, 77248 and 84054. This the Court ordered expunged from the record (Resolution, July 19, 1990). 2. RTC Case No. R-21880; CA-G.R. CV No. 10951; G.R. No. 87897 Borromeo also sued to stop UCPB from foreclosing the mortgage on his property. In the Cebu City RTC, he filed a complaint for "Damages with Injunction," which was docketed as Civil Case No. R21880 (Joaquin T. Borromeo vs. United Coconut Planters Bank, et al.). Named defendants in the complaint were UCPB, Enrique Farrarons (UCPB Cebu Branch Manager) and Samson K. Lao. UCPB was represented in the action by Atty. Danilo Deen, and for a time, by Atty. Honorato Hermosisima (both being then resident partners of ACCRA Law Office). Lao was represented by Atty. Antonio Regis. Once again, Borromeo was rebuffed. The Cebu RTC (Br. 11, Judge Valeriano R. Tomol, Jr. presiding) dismissed the complaint, upheld UCPB's right to foreclose, and granted its counterclaim for moral damages in the sum of P20,000.00; attorney's fees amounting to P10,000.00; and litigation expenses of P1,000.00. Borromeo perfected an appeal to the Court of Appeals where it was docketed as CA-G.R. CV No. 10951. That Court, thru its Ninth Division (per Martinez, J., ponente, with de la Fuente and Pe, JJ., concurring), dismissed his appeal and affirmed the Trial Court's judgment. Borromeo filed a petition far review with the Supreme Court which, in G.R. No. 87897 dismissed it for insufficiency in form and substance and for being "largely unintelligible." Borromeo's motion for reconsideration was denied by Resolution dated June 25, 1989. A second motion for reconsideration was denied in a Resolution dated July 31, 1989 which directed as well entry of judgment (effected on August 1, 1989). In this Resolution, the Court (First Division) said:
The Court considered the Motion for Reconsideration dated July 4, 1989 filed by petitioner himself and Resolved to DENY the same for lack of merit, the motion having been filed without "express leave of court" (Section 2, Rule 52, Rules of Court) apart from being a reiteration merely of the averments of the Petition for Review dated April 14, 1989 and the Motion for Reconsideration dated May 25, 1989. It should be noted that petitioner's claims have already been twice rejected as without merit, first by the Regional Trial Court of Cebu and then by the Court of Appeals. What petitioner desires obviously is to have a third ruling on the merits of his claims, this time by this Court. Petitioner is advised that a review of a decision of the Court of Appeals is not a matter of right but of sound judicial discretion and will be granted only when there is a special and important reason therefor (Section 4, Rule 45); and a petition for review may be dismissed summarily on the ground that "the appeal is without merit, or is prosecuted manifestly for delay or the question raised is too unsubstantial to require consideration" (Section 3, Rule 45), or that only questions of fact are raised in the petition, or the petition otherwise fails to comply with the formal requisites prescribed therefor (Sections 1 and 2, Rule 45; Circular No. 1-88). Petitioner is further advised that the first sentence of Section 14, Article VIII of the 1987 Constitution refers to a decision, and has no application to a resolution as to which said section pertinently provides that a resolution denying a motion for reconsideration need state only the legal basis therefor; and that the resolution of June 26, 1989 denying petitioner's first Motion for Reconsideration dated May 25, 1989 does indeed state the legal reasons therefor. The plain and patent signification of the grounds for denial set out in the Resolution of June 26, 1989 is that the petitioner's arguments aimed at the setting aside of the resolution denying the petition for review and consequently bringing about a review of the decision of the Court of Appeals had failed to persuade the Court that the errors imputed to the Court of Appeals had indeed been committed and therefore, there was no cause to modify the conclusions set forth in that judgment; and in such a case, there is obviously no point in reproducing and restating the conclusions and reasons therefor of the Court of Appeals.
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Premises considered, the Court further Resolved to DIRECT ENTRY OF JUDGMENT.
On August 13, 1989 Borromeo wrote to Atty. Estrella C. Pagtanac, then the Clerk of Court of the Court's First Division, denouncing the resolution above mentioned as "a LITANY OF LIES, EVASIONS, and ABSURD SELF-SERVING LOGIC from a Supreme Court deluded and drunk with power which it has forgotten emanates from the people," aside from being "patently UNCONSTITUTIONAL for absence of signatures and facts and law: . . . and characterizing the conclusions therein as "the height of ARROGANCE and ARBITRARINESS assuming a KING-LIKE AND EVEN GOD-LIKE POWER totally at variance and contradicted by . . . CONSTITUTIONAL provisions . . ." To the letter Borromeo attached copies of (1) his "Open Letter to the Ombudsman" dated August 10, 1989 protesting the Court's "issuing UNSIGNED, UNSPECIFIC, and BASELESS 'MINUTE RESOLUTIONS;'" (2) his "Open Letter of Warning" dated August 12, 1989; and (3) a communication of Domingo M. Quimlat, News Ombudsman, Phil. Daily Inquirer, dated August 10, 1989. His letter was ordered expunged from the record because containing "false, impertinent and scandalous matter (Section 5, Rule 9 of the Rules of Court)." Another letter of the same ilk, dated November 7, 1989, was simply "NOTED without action" by Resolution promulgated on December 13, 1989. 3. RTC Case No. CEB-4852; CA G.R. SP No. 14519; G.R. No. 84999 In arrant disregard of established rule and practice, Borromeo filed another action to invalidate the foreclosure effected at the instance of UCPB, which he had unsuccessfully tried to prevent in Case No. CEB-21880. This was Civil Case No. CEB-4852 of the Cebu City RTC (Joaquin T. Borromeo vs. UCPB, et al.) for "Annulment of Title with Damages." Here, UCPB was represented by Atty. Laurence Fernandez, in consultation with Atty. Deen. On December 26, 1987, the Cebu City RTC (Br. VII, Hon. Generoso A. Juaban, presiding) dismissed the complaint on the ground of litis pendentia and ordered Borromeo to pay attorney's fees (P5,000.00) and litigation expenses (P1,000.00). Borromeo instituted a certiorari action in the Court of Appeals to annul this judgment (CA G.R. SP No. 14519); but his action was dismissed by the Appellate Court on June 7, 1988 on account of his failure to comply with that Court's Resolution of May 13, 1988 for submission of certified true copies of the Trial Court's decision of December 26, 1987 and its Order of February 26, 1988, and for statement of "the dates he received . . . (said) decision and . . . order." Borromeo went up to this Court on appeal, his appeal being docketed as G.R. No. 84999. In a Resolution dated October 10, 1988, the Second Division required comment on Borromeo's petition for review by the respondents therein named, and required Borromeo to secure the services of counsel. On November 9, 1988, Atty. Jose L. Cerilles entered his appearance for Borromeo. After due proceedings, Borromeo's petition was dismissed, by Resolution dated March 6, 1989 of the Second Division for failure to sufficiently show that the Court of Appeals had committed any reversible error in the questioned judgment. His motion for reconsideration dated April 4, 1989, again complaining that the resolution contained no findings of fact and law, was denied. a. RTC Case No. CEB-8178
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Predictably, another action, Civil Case No. CEB-8178, was commenced by Borromeo in the RTC of Cebu City, this time against the Trial Judge who had lately rendered judgment adverse to him, Judge Generoso Juaban. Also impleaded as defendants were UCPB, and Hon. Andres Narvasa (then Chairman, First Division), Estrella G. Pagtanac and Marissa Villarama (then, respectively, Clerk of Court and Assistant Clerk of Court of the First Division), and others. Judge German G. Lee of Branch 15 of said Court to which the case was raffled caused issuance of summonses which were in due course served on September 22, 1989, among others, on said defendants in and of the Supreme Court. In an En Banc Resolution dated October 2, 1989 in G.R. No. 84999 this Court, required Judge Lee and the Clerk of Court and Assistant Clerk of Court of the Cebu RTC to show cause why no disciplinary action should be taken against them for issuing said summonses. Shortly thereafter, Atty. Jose L. Cerilles who, as already stated, had for a time represented Borromeo in G.R. No. 84999 filed with this Court his withdrawal of appearance, alleging that there was "no compatibility" between him and his client, Borromeo because "Borromeo had been filing pleadings, papers; etc. without . . . (his) knowledge and advice" and declaring that he had "not advised and . . . (had) no hand in the filing of (said) Civil Case CEB 8178 before the Regional Trial Court in Cebu. On the other hand, Judge Lee, in his "Compliance" dated October 23, 1989, apologized to the Court and informed it that he had already promulgated an order dismissing Civil Case No. CEB-8178 on motion of the principal defendants therein, namely, Judge Generoso Juaban and United Coconut Planters Bank (UCPB). Atty. Cerilles' withdrawal of appearance, and Judge Lee's compliance, were noted by the Court in its Resolution dated November 29, 1989. 4. RTC Case No. CEB-374; CA-G.R. CV No. 04097; G.R. No. 77248 It is germane to advert to one more transaction between Borromeo and Samson K. Lao which gave rise to another action that ultimately landed in this Court. 29 The transaction involved a parcel of land of Borromeo's known as the "San Jose Property" (TCT No. 34785). Borromeo sued Lao and another person (Mariano Logarta) in the Cebu Regional Trial Court on the theory that his contract with the latter was not an absolute sale but an equitable mortgage. The action was docketed as Case No. CEB-374. Judgment was rendered against him by the Trial Court (Branch 12) declaring valid and binding the purchase of the property by Lao from him, and the subsequent sale thereof by Lao to Logarta. Borromeo appealed to the Court of Appeals, but that Court, in CA-G.R. CV No. 04097, affirmed the Trial Court's judgment, by Decision promulgated on October 10, 1986. Borromeo came up to this Court. on appeal, his review petition being docketed as G.R. No. 77248. By Resolution of the Second Division of March 16, 1987, however, his petition was denied for the reason that "a) the petition as well as the docket and legal research fund fees were filed and paid late; and (b) the issues raised are factual and the findings thereon of the Court of Appeals are final." He moved for reconsideration; this was denied by Resolution dated June 3, 1987. He thereafter insistently and persistently still sought reconsideration of said adverse resolutions through various motions and letters, all of which were denied. One of his letters inter alia complaining that the notice sent to him by the Clerk of Court did not bear the signature of any Justice elicited the following reply from Atty. Julieta Y. Carreon, Clerk of Court of the Third Division, dated July 10, 1987, reading as follows:
Dear Mr. Borromeo:
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This refers to your letter dated June 9, 1987 requesting for a copy of the actual resolution with the signatures of all the Justices of the Second Division in Case G.R. No. 77243 whereby the motion for reconsideration of the dismissal of the petition was denied for lack of merit. In connection therewith, allow us to cite for your guidance, Resolution dated July 6, 1981 in G.R. No. 56280, Rhine Marketing Corp. v. Felix Gravante, Jr., et al., wherein the Supreme Court declared that "(m)inute resolutions of this Court denying or dismissing unmeritorious petitions like the petition in the case at bar, are the result of a thorough deliberation among the members of this Court, which does not and cannot delegate the exercise of its judicial functions to its Clerk of Court or any of its subalterns, which should be known to counsel. When a petition is denied or dismissed by this Court, this Court sustains the challenged decision or order together with its findings of facts and legal conclusions." It is the Clerk of Court's duty to notify the parties of the action taken on their case by quoting the resolution adopted by the Court. Very truly yours, JULIETA Y. CARREON
B. CRIMINAL CASES Just as he had done with regard to the cases involving the Traders Royal Bank, and similarly without foundation, Borromeo attempted to hold his adversaries in the cases concerning the UCPB criminally liable. 1. Case No; OMB-VIS-89-00181 In relation to the dispositions made of Borromeo's appeals and other attempts to overturn the judgment of the RTC in Civil Case No. 21880, 30 Borromeo filed with the Office of the Ombudsman (Visayas) on August 18, 1989, a complaint against the Chairman and Members of the Supreme Court's First Division; the Members of the Ninth Division of the Court of Appeals, Secretary of Justice Sedfrey Ordoez, Undersecretary of Justice Silvestre Bello III, and Cebu City Prosecutor Jufelinito Pareja, charging them with violations of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. By Resolution dated January 12, 1990, 31 the Office of the Ombudsman dismissed Borromeo's complaint, opining that the matters therein dealt with had already been tried and their merits determined by different courts including the Supreme Court (decision, June 26, 1989, in G.R. No. 87987). The resolution inter alia stated that, "Finally, we find it unreasonable for complainant to dispute and defiantly refuse to acknowledge the authority of the decree rendered by the highest tribunal of the land in this case. . . ." 2. Case No. OMB-VIS-90-00418 A second complaint was filed by Borromeo with the Office of the Ombudsman (Visayas), dated January 12, 1990, against Atty. Julieta Carreon, Clerk of Court of the Third Division, Supreme Court, and others, charging them with a violation of R.A. 3019 (and the Constitution, the Rules of Court, etc.) for supposedly usurping judicial functions in that they issued Supreme Court resolutions (actually, notices of resolutions) in connection with G.R. No. 82273 which did not bear the justices' signatures. 32 In a Resolution dated March 19, 1990, the Office of the Ombudsman dismissed his complaint for "lack of merit" declaring inter alia that "in all the questioned actuations of the respondents alleged to
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constitute usurpation . . . it cannot be reasonably and fairly inferred that respondents really were the ones rendering them," and "it is not the prerogative of this office to review the correctness of judicial resolutions." 33 III. CASES INVOLVING SECURITY BANK & TRUST CO. (SBTC) A. CIVIL CASES 1. RTC Case No. 21615; CAG.R. No. 20617; G.R. No. 94769 The third banking institution which Joaquin T. Borromeo engaged in running court battles, was the Security Bank & Trust Company (SBTC). From it Borromeo had obtained five (5) loans in the aggregate sum of P189,126.19, consolidated in a single Promissory Note on May 31, 1979. To secure payment thereof, Summa Insurance Corp. (Summa) issued a performance bond which set a limit of P200,000.00 on its liability thereunder. Again, as in the case of his obligations to Traders Royal Bank and UCPB, Borromeo failed to discharge his contractual obligations. Hence, SBTC brought an action in the Cebu City RTC against Borromeo and Summa for collection. The action was docketed as Civil Case No. R-21615, and was assigned to Branch 10, Judge Leonardo Caares, presiding. Plaintiff SBTC was represented by Atty. Edgar Gica, who later withdrew and was substituted by the law firm, HERSINLAW. The latter appeared in the suit through Atty. Wilfredo Navarro. Judgment by default was rendered in the case on January 5, 1989; both defendents were sentenced to pay to SBTC, solidarily, the amount of P436,771.32; 25% thereof as attorney's fees (but in no case less than P20,000.00); and P5,000.00 as litigation expenses; and the costs. A writ of execution issued in due course pursuant to which an immovable of Borromeo was levied on, and eventually sold at public auction on October 19, 1989 in favor of the highest bidder, SBTC. On February 5, 1990, Borromeo filed a motion to set aside the judgment by default, but the same was denied on March 6, 1990. His Motion for Reconsideration having likewise been denied, Borromeo went to the Court of Appeals for relief (CA-G.R. No. 20617), but the latter dismissed his petition. Failing in his bid for reconsideration, Borromeo appealed to this Court on certiorari his appeal being docketed as G.R. No. 94769. On September 17, 1990, this Court dismissed his petition, and subsequently denied with finality his motion for reconsideration. Entry of Judgment was made on December 26, 1990. However, as will now be narrated, and as might now have been anticipated in light of his history of recalcitrance and bellicosity, these proceedings did not signify the end of litigation concerning Borromeo's aforesaid contractual commitments to SBTC, but only marked the start of another congeries of actions and proceedings, civil and criminal concerning the same matter, instituted by Borromeo. 2. RTC Case No. CEB-9267
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While G.R. No. 94769 was yet pending in the Supreme Court, Borromeo commenced a suit of his own in the Cebu RTC against SBTC; the lawyers who represented it in Civil Case No. R-21625 HERSINLAW, Atty. Wilfredo Navarro, Atty. Edgar Gica; and even the Judge who tried and disposed of the suit, Hon. Leonardo Caares. He denominated his action, docketed as Civil Case No. CEB9267, as one for "Damages from Denial of Due Process, Breach of Contract, Fraud, Unjust Judgment, with Restraining Order and Injunction." His complaint accused defendants of "wanton, malicious and deceitful acts" in "conniving to deny plaintiff due process and defraud him through excessive attorney's fees," which acts caused him grave mental and moral shock, sleepless nights, worry, social embarrassment and severe anxiety for which he sought payment of moral and exemplary damages as well as litigation expenses. By Order dated May 21, 1991, the RTC of Cebu City, Branch 16 (Hon. Godardo Jacinto, presiding) granted the demurrer to evidence filed by defendants and dismissed the complaint, holding that "since plaintiff failed to introduce evidence to support . . . (his) causes of action asserted . . ., it would be superfluous to still require defendants to present their own evidence as there is nothing for them to controvert." 2. RTC Case No. CEB-10458; CA-G.R. CV No. 39047 Nothing daunted, and running true to form, Borromeo filed on July 2, 1991 still another suit against the same parties SBTC, HERSINLAW, and Judge Caares but now including Judge Godardo Jacinto, 34 who had rendered the latest judgment against him. This suit, docketed as Civil Case No. CEB-10458, was, according to Borromeo, one "for Damages (For Unjust Judgment and Orders, Denial of Equal Protection of the Laws Violation of the Constitution, Fraud and Breach of Contract)." Borromeo faulted Judges Caares and Jacinto "for the way they decided the two cases (CVR-21615 & CEB NO. 9267)," and contended that defendants committed "wanton, malicious, and unjust acts" by "conniving to defraud plaintiff and deny him equal protection of the laws and due process," on account of which he had been "caused untold mental anguish, moral shock, worry, sleepless nights, and embarrassment for which the former are liable under Arts. 20, 21, 27, and 32 of the Civil Code." The defendants filed motions to dismiss. By Order dated August 30, 1991, the RTC of Cebu City, Branch 15 (Judge German G. Lee, Jr., presiding) dismissed the complaint on grounds of res judicata, immunity of judges from liability in the performance of their official functions, and lack of jurisdiction. Borromeo took an appeal to the Court of Appeals, which docketed it as CA-G.R. CV No. 39047. In the course thereof, he filed motions to cite Atty. Wilfredo F. Navarro, lawyer of SBTC, for contempt of court. The motions were denied by Resolution of the Court of Appeals (Special 7th Division) dated April 13, 1993. 35 Said the Court:
Stripped of their disparaging and intemperate innuendoes, the subject motions, in fact, proffer nothing but a stark difference in opinion as to what can, or cannot, be considered res judicata under the circumstances. xxx xxx xxx By their distinct disdainful tenor towards the appellees, and his apparent penchant for argumentum ad hominen, it is, on the contrary the appellant who precariously treads the acceptable limits of
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argumentation and personal advocacy. The Court, moreover, takes particular note of the irresponsible leaflets he admits to have authored and finds them highly reprehensible and needlessly derogatory to the dignity, honor and reputation of the Courts. That he is not a licensed law practitioner is, in fact, the only reason that his otherwise contumacious behavior is presently accorded the patience and leniency it probably does not deserve. Considering the temperament he has, by far, exhibited, the appellant is, however, sufficiently warned that similar displays in the future shall accordingly be dealt with with commensurate severity.
IV. OTHER CASES A. RTC Case No. CEB-2074; CA-G.R, CV No. 14770; G.R. No. 98929 One other case arising from another transaction of Borromeo with Samson K. Lao is pertinent. This is Case No. CEB-2974 of the Regional Trial Court of Cebu. It appears that sometime in 1979, Borromeo was granted a loan of P165,000.00 by the Philippine Bank of Communications (PBCom) on the security of a lot belonging to him in San Jose Street, Cebu City, covered by TCT No. 34785. 36 Later, Borromeo obtained a letter of credit in the amount of P37,000.00 from Republic Planters Bank, with Samson Lao as co-maker. Borromeo failed to pay his obligations; Lao agreed to, and did pay Borromeo's obligations to both banks (PBCom and Republic), in consideration of which a deed of sale was executed in his favor by Borromeo over two (2) parcels of land, one of which was that mortgaged to PBCom, as above stated. Lao then mortgaged the land to PBCom as security for his own loan in the amount of P240,000.00. Borromeo subsequently sued PBCom, some of its personnel, and Samson Lao in the Cebu Regional Trial Court alleging that the defendants had conspired to deprive him of his property. Judgment was rendered against him by the Trial Court. Borromeo elevated the case to the Court of Appeals where his appeal was docketed as CA-G.R. CV No. 14770. On March 21, 1990, said Court rendered judgment affirming the Trial Court's decision, and on February 7, 1991, issued a Resolution denying Borromeo's motion for reconsideration. His appeal to this Court, docketed as G.R. No. 98929, was given short shrift. On May 29, 1991, the Court (First Division) promulgated a Resolution denying his petition for review "for being factual and for failure . . . to sufficiently show that respondent court had committed any reversible error in its questioned judgment." Stubbornly, in his motion for reconsideration, he insisted the notices of the resolutions sent to him were unconstitutional and void because bearing no signatures of the Justices who had taken part in approving the resolution therein mentioned. B. RTC Case No. CEB-11528 What would seem to be the latest judicial dispositions rendered against Borromeo, at least as of date of this Resolution, are two orders issued in Civil Case No. CEB-11528 of the Regional Trial Court at Cebu City (Branch 18), which was yet another case filed by Borromeo outlandishly founded on the theory that a judgment promulgated against him by the Supreme Court (Third Division) was wrong and "unjust." Impleaded as defendant in the action was former Chief Justice Marcelo B. Fernan, as Chairman of the Third Division at the time in question. On August 31, 1994 the presiding judge, Hon. Galicano O. Arriesgado, issued a Resolution inter alia dismissing Borromeo's complaint "on grounds of lack of jurisdiction and res judicata." His Honor made the following pertinent observations:
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. . . (T)his Court is of the well-considered view and so holds that this Court has indeed no jurisdiction to review, interpret or reverse the judgment or order of the Honorable Supreme Court. The acts or omissions complained of by the plaintiff against the herein defendant and the other personnel of the highest Court of the land as alleged in paragraphs 6 to 12 of plaintiff's complaint are certainly beyond the sphere of this humble court to consider and pass upon to determine their propriety and legality. To try to review, interpret or reverse the judgment or order of the Honorable Supreme Court would appear not only presumptuous but also contemptuous. As argued by the lawyer for the defendant, a careful perusal of the allegations in the complaint clearly shows that all material allegations thereof are directed against a resolution of the Supreme Court which was allegedly issued by the Third Division composed of five (5) justices. No allegation is made directly against defendant Marcelo B. Fernan in his personal capacity. That being the case, how could this Court question the wisdom of the final order or judgment of the Supreme Court (Third Division) which according to the plaintiff himself had issued a resolution denying plaintiffs petition and affirming the Lower Court's decision as reflected in the "Entry of Judgment." Perhaps, if there was such violation of the Rules of Court, due process and Sec. 14, Art. 8 of the Constitution by the defendant herein, the appropriate remedy should not have been obtained before this Court. For an inferior court to reverse, interpret or review the acts of a superior court might be construed to a certain degree as a show of an uncommon common sense. Lower courts are without supervising jurisdiction to interpret or to reverse the judgment of the higher courts.
Borromeo's motion for reconsideration dated September 20, 1994 was denied "for lack of sufficient factual and legal basis" by an Order dated November 15, 1994. V. ADMINISTRATIVE CASE No. 3433 A. Complaint Against Lawyers of his Court Adversaries Borromeo also initiated administrative disciplinary proceedings against the lawyers who had appeared for his adversaries UCPB and Samson K. Lao in the actions above mentioned, and others. As already mentioned, these lawyers were: Messrs. Laurence Fernandez, Danilo Deen, Honorato Hermosisima, Antonio Regis, and Alfredo Perez. His complaint against them, docketed as Administrative Case No. 3433, prayed for their disbarment. Borromeo averred that the respondent lawyers connived with their clients in (1) maliciously misrepresenting a deed of sale with pacto de retro as a genuine sale, although it was actually an equitable mortgage; (2) fraudulently depriving complainant of his proprietary rights subject of the Deed of Sale; and (3) defying two lawful Court orders, all in violation of their lawyer's oath to do no falsehood nor consent to the doing of any in Court. Borromeo alleged that respondents Perez and Regis falsely attempted to consolidate title to his property in favor of Lao. B. Answer of Respondent Lawyers The respondent lawyers denounced the disbarment complaint as "absolutely baseless and nothing but pure harassment." In a pleading dated July 10, 1990, entitled "Comments and Counter Motion to Cite Joaquin Borromeo in Contempt of Court;" July 10, 1990, filed by the Integrated Bar of the Philippines Cebu City Chapter, signed by Domero C. Estenzo (President), Juliano Neri (VicePresident), Ulysses Antonio C. Yap (Treasurer); Felipe B. Velasquez (Secretary), Corazon E. Valencia (Director), Virgilio U. Lainid (Director), Manuel A. Espina (Director), Ildefonsa A. Ybaez (Director), Sylvia G. Almase (Director), and Ana Mar Evangelista P. Batiguin (Auditor). The lawyers made the following observations:
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It is ironic. While men of the legal profession regard members of the Judiciary with deferential awe and respect sometimes to the extent of cowering before the might of the courts, here is a non-lawyer who, with gleeful abandon and unmitigated insolence, has cast aspersions and shown utter disregard to the authority and name of the courts. And lawyers included. For indeed, it is very unfortunate that here is a non-lawyer who uses the instruments of justice to harass lawyers and courts who crosses his path more especially if their actuations do not conform with his whims and caprices.
Adverting to letters publicly circulated by Borromeo, inter alia charging then Chief Justice Marcelo B. Fernan with supposed infidelity and violation of the constitution, etc., the lawyers went on to say the following:
The conduct and statement of Borromeo against this Honorable Court, and other members of the Judiciary are clearly and grossly disrespectful, insolent and contemptuous. They tend to bring dishonor to the Judiciary and subvert the public confidence on the courts. If unchecked, the scurrilous attacks will undermine the dignity of the courts and will result in the loss of confidence in the country's judicial system and administration of justice. . . . (S)omething should be done to protect the integrity of the courts and the legal profession. So many baseless badmouthing have been made by Borromeo against this Honorable Court and other courts that for him to go scot-free would certainly be demoralizing to members of the profession who afforded the court with all the respect and esteem due them.
Subsequently, in the same proceeding; Borromeo filed another pleading protesting the alleged "refusal" of the Cebu City Chapter of the Integrated Bar of the Philippines to act on his disbarment cases "filed against its members." C. Decision of the IBP On March 28, 1994, the National Executive Director, IBP (Atty. Jose Aguila Grapilon) transmitted to this Court the notice and copy of the decision in the case, reached after due investigation, as well as the corresponding records in seven (7) volumes. Said decision approved and adopted the Report and Recommendation dated December 15, 1993 of Atty. Manuel P. Legaspi, President, IBP, Cebu City Chapter, representing the IBP Commission on Bar Discipline, recommending dismissal of the complaint as against all the respondents and the issuance of a "warning to Borromeo to be more cautious and not be precipitately indiscriminate in the filing of administrative complaints against lawyers." 37 VI. SCURRILOUS WRITINGS Forming part of the records of several cases in this Court are copies of letters ("open" or otherwise), "circulars," flyers or leaflets harshly and quite unwarrantedly derogatory of the many court judgments or directives against him and defamatory of his adversaries and their lawyers and employees, as well as the judges and court employees involved in the said adverse dispositions some of which scurrilous writings were adverted to by the respondent lawyers in Adm. Case No. 3433, supra. The writing and circulation of these defamatory writing were apparently undertaken by Borromeo as a parallel activity to his "judicial adventures." The Court of Appeals had occasion to refer to his "apparent penchant for argumentum ad hominen" and of the "irresponsible leaflets he admits to have
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authored . . . (which were found to be) highly reprehensible and needlessly derogatory to the dignity, honor and reputation of the Courts." In those publicly circulated writings, he calls judges and lawyers ignorant, corrupt, oppressors, violators of the Constitution and the laws, etc. Sometime in July, 1990, for instance, he wrote to the editor of the "Daily Star" as regards the reported conferment on then Chief Justice Marcelo B. Fernan of an "Award from the University of Texas for his contributions in upholding the Rule of Law, Justice, etc.," stressing that Fernan "and the Supreme Court persist in rendering rulings patently violative of the Constitution, Due Process and Rule of Law, particularly in their issuance of so-called Minute Resolutions devoid of FACT or LAW or SIGNATURES . . ." He sent a copy of his letter in the Supreme Court. He circulated an "OPEN LETTER TO SC justices, Fernan," declaring that he had "suffered INJUSTICE after INJUSTICE from you who are sworn to render TRUE JUSTICE but done the opposite, AND INSTEAD OF RECTIFYING THEM, labeled my cases as 'frivolous, nuisance, and harassment suits' while failing to refute the irrefutable evidences therein . . .;" in the same letter, he specified what he considered to be some of "the terrible injustices inflicted on me by this Court." In another letter to Chief Justice Fernan, he observed that "3 years after EDSA, your pledges have not been fulfilled. Injustice continues and as you said, the courts are agents of oppression, instead of being saviours and defenders of the people. The saddest part is that (referring again to minute resolutions) even the Supreme Court, the court of last resort, many times, sanctions injustice and the trampling of the rule of law and due process, and does not comply with the Constitution when it should be the first to uphold and defend it . . . ." Another circulated letter of his, dated June 21, 1989 and captioned, "Open Letter to Supreme Court Justices Marcelo Fernan and Andres Narvasa," repeated his plaint of having "been the victim of many . . . 'Minute Resolutions' . . . which in effect sanction the theft and landgrabbing and arson of my properties by TRADERS ROYAL BANK, UNITED COCONUT PLANTERS BANK, AND one TOMAS B. TAN all without stating any FACT or LAW to support your dismissal of . . . (my) cases, despite your firm assurances (Justice Fernan) that you would cite me such facts or laws (during our talk in your house last March 12 1989);" and that "you in fact have no such facts or laws but simply want to ram down a most unjust Ruling in favor of a wrongful party. . . ." In another flyer entitled in big bold letters, "A Gov't That Lies! Blatant attempt to fool people!" he mentions what he regards as "The blatant lies and contradictions of the Supreme Court, CA to support the landgrabbing by Traders Royal Bank of Borromeos' Lands." Another flyer has at the center the caricature of a person, seated on a throne marked Traders Royal Bank, surrounded by such statements as, "Sa TRB para kami ay royalty. Nakaw at nakaw! Kawat Kawat! TRB WILL STEAL!" etc Still another "circular" proclaims: "So the public may know: Supreme Court minute resolutions w/o facts, law, or signatures violate the Constitution" and ends with the admonition: "Supreme Court, Justice Fernan: STOP VIOLATING THE CHARTER." 38 One other "circular" reads:
SC, NARVASA TYRANTS!!! CODDLERS OF CROOKS! VIOLATOR OF LAWS
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by: JOAQUIN BORROMEO
NARVASA's SC has denied being a DESPOT nor has it shielded CROOKS in the judiciary. Adding "The SCRA (SC Reports) will attest to this continuing vigilance Of the supreme Court." These are lame, cowardly and self-serving denials and another "self-exoneration" belied by evidence which speak for themselves (Res Ipsa Loquitor) (sic) the SCRA itself. It is pure and simply TYRANNY when Narvasa and associates issued UNSIGNED, UNCLEAR, SWEEPING "Minute Resolutions" devoid of CLEAR FACTS and LAWS in patent violation of Secs. 4(3), 14, Art. 8 of the Constitution. It is precisely through said TYRANNICAL, and UNCONSTITUTIONAL sham rulings that Narvasa & Co. have CODDLED CROOKS like crony bank TRB, UCPB, and SBTC, and through said fake resolutions that Narvasa has LIED or shown IGNORANCE of the LAW in ruling that CONSIGNATION IS NECESSARY IN RIGHT OF REDEMPTION (GR 83306). Through said despotic resolutions, NARVASA & CO. have sanctioned UCPB/ACCRA's defiance of court orders and naked land grabbing What are these if not TYRANNY? (GR 84999). Was it not tyranny for the SC to issue an Entry of Judgment without first resolving the motion for reconsideration (G.R No. 82273). Was it not tyranny and abuse of power for the SC to order a case dismissed against SC clerks (CEBV-8679) and declare justices and said clerks "immune from suit" despite their failure to file any pleading? Were Narvasa & Co. not in fact trampling on the rule of law and rules of court and DUE PROCESS in so doing? (GR No. 82273). TYRANTS will never admit that they are tyrants. But their acts speak for themselves! NARVASA & ASSOC: ANSWER AND REFUTE THESE SERIOUS CHARGES OR RESIGN!!
IMPEACH NARVASA
ISSUING UNSIGNED, SWEEPING, UNCLEAR, UNCONSTITUTIONAL "MINUTE RESOLUTIONS" VIOLATIVE OF SECS. 4(3), 14, ART. 8, Constitution VIOLATING RULES OF COURT AND DUE PROCESS IN ORDERING CASE AGAINST SC CLERKS (CEB-8679) DISMISSED DESPITE THE LATTER'S FAILURE TO FILE PLEADINGS; HENCE IN DEFAULT CORRUPTION AND/OR GROSS IGNORANCE OF THE LAW IN RULING, THAT CONSIGNATION IS NECESSARY IN RIGHT OF REDEMPTION, CONTRADICTING LAW AND SC'S OWN RULINGS TO ALLOW CRONY BANK TRB TO STEALS LOTS WORTH P3 MILLION CONDONING CRONY BANK UCPB'S DEFIANCE OF TWO LAWFUL COURT ORDERS AND STEALING OF TITLE OF PROPERTY WORTH P4 MILLION BEING JUDGE AND ACCUSED AT THE SAME TIME AND PREDICTABLY EXONERATING HIMSELF AND FELLOW CORRUPT JUSTICES DECLARING HIMSELF, JUSTICES, and even MERE CLERKS TO BE IMMUNE FROM SUIT AND UN-ACCOUNTABLE TO THE PEOPLE and REFUSING TO ANSWER AND REFUTE CHARGES AGAINST HIMSELF JOAQUIN T. BORROMEO
VI. IMMEDIATE ANTECEDENTS OF PROCEEDINGS AT BAR

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A. Letter of Cebu City Chapter IBP, dated June 21, 1992 Copies of these circulars evidently found their way into the hands, among others, of some members of the Cebu City Chapter of the Integrated Bar of the Philippines. Its President thereupon addressed a letter to this Court, dated June 21, 1992, which (1) drew attention to one of them that last quoted, above " . . . .sent to the IBP Cebu City Chapter and probably other officers . . . in Cebu," described as containing "highly libelous and defamatory remarks against the Supreme Court and the whole justice system" and (2) in behalf of the Chapter's "officers and members," strongly urged the Court "to impose sanctions against Mr. Borromeo for his condemnable act." B. Resolution of July 22, 1993 Acting thereon, the Court En Banc issued a Resolution on July 22, 1993, requiring comment by Borromeo on the letter, notice of which was sent to him by the Office of the Clerk of Court. The resolution pertinently reads as follows:
xxx xxx xxx The records of the Court disclose inter alia that as early as April 4, 1989, the Acting Clerk of Court, Atty. Luzviminda D. Puno, wrote a four page letter to Mr. Borromeo concerning G.R. No. 83306 (Joaquin T. Borromeo vs. Traders Royal Bank [referred to by Borromeo in the "circular" adverted to by the relator herein, the IBP Cebu City Chapter]) and two (2) other cases also filed with the Court by Borromeo: G.R. No. 77248 (Joaquin T. Borromeo v. Samson Lao and Mariano Logarta) and G.R. No. 84054 (Joaquin T. Borromeo v. Hon. Mario Dizon and Tomas Tan), all resolved adversely to him by different Divisions of the Court. In that letter Atty. Puno explained to Borromeo very briefly the legal principles applicable to his cases and dealt with the matters mentioned in his circular. The records further disclose subsequent adverse rulings by the Court in other cases instituted by Borromeo in this Court, i.e., G.R. No. 87897 (Joaquin T. Borromeo v. Court of Appeals, et al.) and No. 82273 (Joaquin T. Borromeo v. Court of Appeals and Samson Lao), as well as the existence of other communications made public by Borromeo reiterating the arguments already passed upon by the court in his cases and condemning the court's rejection of those arguments. Acting on the letter dated June 21, 1993 of the Cebu City Chapter of the Integrated Bar of the Philippines thru its above named, President, and taking account of the related facts on record, the Court Resolved: 1) to REQUIRE: (a) the Clerk of Court (1) to DOCKET the matter at bar as a proceeding for contempt against Joaquin T. Borromeo instituted at the relation of said Cebu City Chapter, Integrated Bar of the Philippines, and (2) to SEND to the City Sheriff, Cebu City, notice of this resolution and copies of the Chapter's letter dated June 21, 1993 together with its annexes; and (b) said City Sheriff of Cebu City to CAUSE PERSONAL SERVICE of said notice of resolution and a copy of the Chapter's letter dated June 21, 1993, together with its annexes, on Joaquin T. Borromeo at his address at Mabolo, Cebu City; and 2) to ORDER said Joaquin T. Borromeo, within ten (10) days from receipt of such notice and the IBP Chapter's letter of June 21, 1993 and its annexes, to file a comment on the letter and its annexes as well as on the other matters set forth in this resolution, serving copy thereof on the relator, the Cebu City Chapter of the Integrated Bar of the Philippines, Palace of Justice Building, Capitol, Cebu City.
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SO ORDERED.
1. Atty. Puno's Letter of April 4, 1989 Clerk of Court Puno's letter to Borromeo of April 4, 1989, referred to in the first paragraph of the resolution just mentioned, explained to Borromeo for perhaps the second time, precisely the principles and established practice relative to "minute resolutions" and notices thereof, treated of in several other communications and resolutions sent to him by the Supreme Court, to wit: the letter received by him on July 10, 1987, from Clerk of Court Julieta Y. Carreon (of this Court's Third Division) (in relation to G.R No. 77243 39) the letter to him of Clerk of Court (Second Division) Fermin J. Garma, dated May 19, 1989, 40 and three resolutions of this Court, notices of which were in due course served on him, to wit: that dated July 31, 1989, in G.R. No. 87897; 41 that dated June 1, 1990 in G.R. No. 82274 (186 SCRA 1), 42 and that dated June 11, 1994 in G. R. No. 112928. 43 C. Borromeo's Comment of August 27, 1993 In response to the Resolution of July 22, 1993, Borromeo filed a Comment dated August 27, 1993 in which he alleged the following:
1) the resolution of July 22, 1993 (requiring comment) violates the Constitution which requires "signatures and concurrence of majority of members of the High Court;" hence, "a certified copy duly signed by Justices is respectfully requested;" 2) the Chief Justice and other Members of the Court should inhibit themselves "since they cannot be the Accused and Judge at the same time, . . . (and) this case should be heard by an impartial and independent body;" 3) the letter of Atty. Legaspi "is not verified nor signed by members of said (IBP Cebu Chapter) Board; . . . is vague, unspecific, and sweeping" because failing to point out "what particular statements in the circular are allegedly libelous and condemnable;" and does not appear that Atty. Legaspi has authority to speak or file a complaint "in behalf of those accused in the "libelous circular;" 4) in making the circular, he (Borromeo) "was exercising his rights of freedom of speech, of expression, and to petition the government for redress of grievances as guaranteed by the Constitution (Sec. 4, Art. III) and in accordance with the accountability of public officials;" the circular merely states the truth and asks for justice based on the facts and the law; . . . it is not libelous nor disrespectful but rather to be commended and encouraged; . . . Atty. Legaspi . . . should specify under oath which statements are false and lies; 5) he "stands by the charges in his circular and is prepared to support them with pertinent facts, evidence and law;" and it is "incumbent on the Hon. Chief Justice and members of the High Court to either refute said charges or dispense the justice that they are duty bound to dispense.
D. Resolution of September 30, 1993 After receipt of the comment, and desiring to accord Borromeo the fullest opportunity to explain his side, and be reprsented by an attorney, the Court promulgated the following Resolution on September 30, 1993, notice of which was again served on him by the Office of the Clerk of Court.
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. . . The return of service filed by Sheriff Jessie A. Belarmino, Office of the Clerk of Court Regional Trial Court of Cebu City, dated August 26, 1993, and the Comment of Joaquin Borromeo, dated August 27, 1993, on the letter of President Manuel P. Legaspi of the relator dated June 21, 1993, are both NOTED. After deliberating on the allegations of said Comment, the Court Resolved to GRANT Joaquin T. Borromeo an additional period of fifteen (15) days from notice hereof within which to engage the services or otherwise seek the assistance of a lawyer and submit such further arguments in addition to or in amplification of those set out in his Comment dated August 27, 1993, if he be so minded. SO ORDERED.
E. Borromeo's Supplemental Comment of October 15, 1992 Borromeo filed a "Supplemental Comment" dated October 15, 1992, reiterating the arguments and allegations in his Comment of August 27, 1993, and setting forth "additional arguments and amplification to . . . (said) Comment," viz.:
1) the IBP and Atty. Legaspi have failed "to specify and state under oath the alleged 'libelous' remarks contained in the circular . . .; (they should) be ordered to file a VERIFIED COMPLAINT . . .(failing in which, they should) be cited in contempt of court for making false charges and wasting the precious time of this Highest Court by filing a baseless complaint; 2) the allegations in their circular are not libelous nor disrespectful but "are based on the TRUTH and the LAW", namely: a) "minute resolutions" bereft of signatures and clear facts and laws are patent violations of Secs. 4(32), 13, 14, Art. VIII of the Constitution; b) there is no basis nor thruth to this Hon. Court's affirmation to the Appelate Court's ruling that the undersigned "lost" his right of redemption price, since no less than this Hon. Court has ruled in many rulings that CONSIGNATION IS UNNECESSARY in right of redemption; c) this Hon. Court has deplorably condoned crony banks TRB and UCPB's frauds and defiance of court orders in G.R. Nos. 83306 and 878997 and 84999.
F. Borromeo's "Manifestation" of November 26, 1993 Borromeo afterwards filed a "Manifestation" under date of November 26, 1993, adverting to "the failure of the IBP and Atty. Legaspi to substantiate his charges under oath and the failure of the concerned Justices to refute the charges in the alledged "libelous circular" and, construing these as "and admission of the thruth in said circular," theorized that it is "incumbent on the said Justices to rectify their grave as well as to dismiss Atty. Legaspi's baseless and false charges." VII. THE COURT CONCLUSIONS A. Respondent's Liability for Contempt of Court
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Upon the indubitable facts on record, there can scarcely be any doubt of Borromeo's guilt of contempt, for abuse of and interference with judicial rules and processes, gross disrespect to courts and judges and improper conduct directly impeding, obstructing and degrading the administration of justice. 44 He has stubbornly litigated issues already declared to be without merit, obstinately closing his eyes to the many rulings rendered adversely to him in many suits and proceedings, rulings which had become final and executory, obdurately and unreasonably insisting on the application of his own individual version of the rules, founded on nothing more than his personal (and quite erroneous) reading of the Constitution and the law; he has insulted the judges and court officers, including the attorneys appearing for his adversaries, needlessly overloaded the court dockets and sorely tried the patience of the judges and court employees who have had to act on his repetitious and largely unfounded complaints, pleadings and motions. He has wasted the time of the courts, of his adversaries, of the judges and court employees who have had the bad luck of having to act in one way or another on his unmeritorious cases. More particularly, despite his attention having been called many times to the egregious error of his theory that the so-called "minute resolutions" of this Court should contain findings of fact and conclusions of law, and should be signed or certified by the Justices promulgating the same, 45 he has mulishly persisted in ventilating that self-same theory in various proceedings, causing much loss of time, annoyance and vexation to the courts, the court employees and parties involved. 1. Untenability of Proffered Defenses The first defense that he proffers, that the Chief Justice and other Members of the Court should inhibit themselves "since they cannot be the Accused and Judge at the same time . . . (and) this case should be heard by an impartial and independent body, is still another illustration of an entirely unwarranted, arrogant and reprehensible assumption of a competence in the field of the law: he again uses up the time of the Court needlessly by invoking an argument long since declared and adjudged to be untenable. It is axiomatic that the "power or duty of the court to institute a charge for contempt against itself, without the intervention of the fiscal or prosecuting officer, is essential to the preservation of its dignity and of the respect due it from litigants, lawyers and the public. Were the intervention of the prosecuting officer required and judges obliged to file complaints for contempts against them before the prosecuting officer, in order to bring the guilty to justice, courts would be inferior to prosecuting officers and impotent to perform their functions with dispatch and absolute independence. The institution of charges by the prosecuting officer is not necessary to hold persons guilty of civil or criminal contempt amenable to trial and punishment by the court. All that the law requires is that there be a charge in writing duly filed in court and an opportunity to the person charged to be heard by himself or counsel. The charge may be made by the fiscal, by the judge, or even by a private person. . . ." 46 His claim that the letter of Atty. Legaspi "is not verified nor signed by members of said (IBP Cebu Chapter) Board; . . . is vague, unspecific, and sweeping" because failing to point out what particular statements in the circular are allegedly libelous and condemnable;" and it does not appear that Atty. Legaspi has authority to speak or file a complaint "in behalf of those accused in the 'libelous' circular" is in the premises, plainly nothing but superficial philosophizing, deserving no serious treatment. Equally as superficial, and sophistical, is his other contention that in making the allegations claimed to be contumacious, he "was exercising his rights of freedom of speech, of expression, and to petition the government for redress of grievances as guaranteed by the Constitution (Sec. 4, Art. III) and in accordance with the accountablity of public officials." The constitutional rights invoked by him afford
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no justification for repetitious litigation of the same causes and issues, for insulting lawyers, judges, court employees; and other persons, for abusing the processes and rules of the courts, wasting their time, and bringing them into disrepute and disrespect. B. Basic Principles Governing the Judicial Function The facts and issues involved in the proceeding at bench make necessary a restatement of the principles governing finality of judgments and of the paramount need to put an end to litigation at some point, and to lay down definite postulates concerning what is perceived to be a growing predilection on the part of lawyers and litigants like Borromeo to resort to administrative prosecution (or institution of civil or criminal actions) as a substitute for or supplement to the specific modes of appeal or review provided by law from court judgments or orders. 1. Reason for courts; Judicial Hierarchy Courts exist in every civilized society for the settlement of controversies. In every country there is a more or less established hierarchical organization of courts, and a more or less comprehensive system of review of judgments and final orders of lower courts. The judicial system in this jurisdiction allows for several levels of litigation, i.e., the presentation of evidence by the parties a trial or hearing in the first instance as well as a review of the judgments of lower courts by higher tribunals, generally by consideration anew and ventilation of the factual and legal issues through briefs or memoranda. The procedure for review is fixed by law, and is in the very nature of things, exclusive to the courts. 2. Paramount Need to end Litigation at Some Point It is withal of the essence of the judicial function that at some point, litigation must end. Hence, after the procedures and processes for lawsuits have been undergone, and the modes of review set by law have been exhausted, or terminated, no further ventilation of the same subject matter is allowed. To be sure, there may be, on the part of the losing parties, continuing disagreement with the verdict, and the conclusions therein embodied. This is of no moment, indeed, is to be expected; but, it is not their will, but the Court's, which must prevail; and, to repeat, public policy demands that at some definite time, the issues must be laid to rest and the court's dispositions thereon accorded absolute finality. 47 As observed by this Court in Rheem of the Philippines v. Ferrer, a 1967 decision, 48 a party "may think highly of his intellectual endowment. That is his privilege. And he may suffer frustration at what he feels is others' lack of it. This is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right." 3. Judgments of Supreme Court Not Reviewable The sound, salutary and self-evident principle prevailing in this as in most jurisdictions, is that judgments of the highest tribunal of the land may not be reviewed by any other agency, branch,
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department, or official of Government. Once the Supreme Court has spoken, there the matter must rest. Its decision should not and cannot be appealed to or reviewed by any other entity, much less reversed or modified on the ground that it is tainted by error in its findings of fact or conclusions of law, flawed in its logic or language, or otherwise erroneous in some other respect. 49 This, on the indisputable and unshakable foundation of public policy, and constitutional and traditional principle. In an extended Resolution promulgated on March 12, 1987 in In Re: Wenceslao Laureta involving an attempt by a lawyer to prosecute before the Tanod bayan "members of the First Division of this Court collectively with having knowingly and deliberately rendered an 'unjust extended minute Resolution' with deliberate bad faith in violation of Article 204 of the Revised penal Code ". . . and for deliberatly causing "undue injury" to respondent . . . and her co-heirs because of the "unjust Resolution" promulgated, in violation of the Anti-Graft and Corrupt Practices Act . . . the following pronouncements were made in reaffirmation of established doctrine: 50
. . . As aptly declared in the Chief Justice's Statement of December 24, 1986, which the Court hereby adopts in toto, "(I)t is elementary that the Supreme Court is supreme the third great department of government entrusted exclusively with the judicial power to adjudicate with finality all justiciable disputes, public and private. No other department or agency may pass upon its judgments or declare them "unjust." It is elementary that "(A)s has ever been stressed since the early case of Arnedo vs. Llorente (18 Phil. 257, 263 [1911]) "controlling and irresistible reasons of public policy and of sound practice in the courts demand that at the risk of occasional error, judgments of courts determining controversies submitted to them should become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law, into which, in the opinion of the court it may have fallen. The very purpose for which the courts are organized is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the respective rights of the parties. (Luzon Brokerage Co., Inc. vs. Maritime Bldg., Co., Inc., 86 SCRA 305, 316-317) xxx xxx xxx Indeed, resolutions of the Supreme Court as a collegiate court, whether an en banc or division, speak for themselves and are entitled to full faith and credence and are beyond investigation or inquiry under the same principle of conclusiveness of enrolled bills of the legislature . (U.S. vs. Pons, 34 Phil. 729; Gardiner, et al. vs. Paredes, et al., 61 Phil. 118; Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme Court's pronouncement of the doctrine that "(I)t is well settled that the enrolled bill . . . is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President. If there has been any mistake in the printing of the bill before it was certified by the officers of Congress and approved by the Executive [as claimed by petitioner-importer who unsuccessfully sought refund of margin fees] on which we cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democractic system the remedy is by amendment or curative legislation, not by judicial decree" is fully and reciprocally applicable to Supreme Court orders, resolutions and decisions, mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7 SCRA 347, 350. (Citing Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comelec, 3 SCRA 1). The Court has consistently stressed that the "doctrine of separation of powers calls for the executive, legislative and judicial departments being left alone to discharge their duties as they see fit " (Tan vs. Macapagal, 43 SCRA 677). It has thus maintained in the same way that the judiciary has a right to expect that neither the President nor Congress would cast doubt on the mainspring of its orders or decisions, it should refrain from speculating as to alleged hidden forces at work that could have impelled either coordinate branch into acting the way it did. The concept of separation of powers presupposes mutual respect by and between the three departments of the government. (Tecson vs. Salas, 34 SCRA 275, 286287).
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4. Final and Executory Judgments of Lower Courts Not Reviewable Even by Supreme Court In respect of Courts below the Supreme Court, the ordinary remedies available under law to a party who is adversely affected by their decisions or orders are a motion for new trial (or reconsideration) under Rule 37, and an appeal to either the Court of Appeals or the Supreme Court, depending on whether questions of both fact and law, or of law only, are raised, in accordance with fixed and familiar rules and conformably with the hierarchy of courts. 51 Exceptionally, a review of a ruling or act of a court on the ground that it was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, may be had through the special civil action of certiorari or prohibition pursuant to Rule 65 of the Rules of Court. However, should judgments of lower courts which may normally be subject to review by higher tribunals become final and executory before, or without, exhaustion of all recourse of appeal, they, too, become inviolable, impervious to modification. They may, then, no longer be reviewed, or in anyway modified directly or indirectly, by a higher court, not even by the Supreme Court, much less by any other official, branch or department of Government. 52 C. Administrative Civil or Criminal Action against Judge. Not Substitute for Appeal; Proscribed by Law and Logic Now, the Court takes judicial notice of the fact that there has been of late a regrettable increase in the resort to administrative prosecution or the institution of a civil or criminal action as a substitute for or supplement to appeal. Whether intended or not, such a resort to these remedies operates as a form of threat or intimidation to coerce judges into timorous surrender of their prerogatives, or a reluctance to exercise them. With rising frequency, administrative complaints are being presented to the Office of the Court Administrator; criminal complaints are being filed with the Office of the Ombudsman or the public prosecutor's office; civil actions for recovery of damages commenced in the Regional Trial Courts against trial judges, and justices of the Court of Appeals and even of the Supreme Court. 1. Common Basis of Complaints Against Judges Many of these complaints set forth a common indictment: that the respondent Judges or Justices rendered manifestly unjust judgments or interlocutory orders 53 i.e., judgments or orders which are allegedly not in accord with the evidence, or with law or jurisprudence, or are tainted by grave abuse of discretion thereby causing injustice, and actionable and compensable injury to the complainants (invariably losing litigants). Resolution of complaints of this sort quite obviously entails a common requirement for the fiscal, the Ombudsman or the Trial Court: a review of the decision or order of the respondent Judge or Justice to determine its correctness or erroneousness , as basic premise for a pronouncement of liability. 2. Exclusivity of Specific Procedures for Correction of Judgments and Orders
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The question then, is whether or not these complaints are proper; whether or not in lieu of the prescribed recourses for appeal or review of judgments and orders of courts, a party may file an administrative or criminal complaint against the judge for rendition of an unjust judgment, or, having opted for appeal, may nonetheless simultaneously seek also such administrative or criminal remedies. Given the nature of the judicial function, the power vested by the Constitution in the Supreme Court and the lower courts established by law, the question submits to only one answer: the administrative or criminal remedies are neither alternative nor cumulative to judicial review where such review is available, and must wait on the result thereof. Simple reflection will make this proposition amply clear, and demonstrate that any contrary postulation can have only intolerable legal implications. Allowing a party who feels aggrieved by a judicial order or decision not yet final and executory to mount an administrative, civil or criminal prosecution for unjust judgment against the issuing judge would, at a minimum and as an indispensable first step, confer the prosecutor (or Ombudsman) with an incongruous function pertaining, not to him, but to the courts: the determination of whether the questioned disposition is erroneous in its findings of fact or conclusions of law, or both. If he does proceed despite that impediment, whatever determination he makes could well set off a proliferation of administrative or criminal litigation, a possibility here after more fully explored. Such actions are impermissible and cannot prosper. It is not, as already pointed out, within the power of public prosecutors, or the Ombudsman or his deputies, directly or vicariously, to review judgments or final orders or resolutions of the Courts of the land. The power of review by appeal or special civil action is not only lodged exclusively in the Courts themselves but must be exercised in accordance with a well-defined and long established hierarchy, and long-standing processes and procedures. No other review is allowed; otherwise litigation would be interminable, and vexatiously repetitive. These principles were stressed in In Re: Wenceslao Laureta, supra. 54
Respondents should know that the provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment," refer to an individual judge who does so "in any case submitted to him for decision" and even then, it is not the prosecutor who would pass judgment on the "unjustness" of the decision rendered by him but the proper appellate court with jurisdiction to review the same, either the Court of Appeals and/or the Supreme Court. Respondents should likewise know that said penal article has no application to the members of a collegiate court such as this Court or its Divisions who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. It also follows, consequently, that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that such a collective decision is "unjust" cannot prosper. xxx xxx xxx To subject to the threat and ordeal of investigation and prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in the regular exercise of official duty and judicial functions is to subvert and undermine that very independence of the judiciary, and subordinate the judiciary to the executive. "For it is a general principle of the highest importance to the proper administration of justice that a judicial officer in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the
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possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful." (Bradley vs. Fisher, 80 U. S. 335). xxx xxx xxx To allow litigants to go beyond the Court's resolution and claim that the members acted "with deliberate bad faith" and rendered an "unjust resolution" in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be to destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolutions and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes. Dissatisfied litigants and/or their counsels cannot without violating the separation of powers mandated by the Constitution relitigate in another forum the final judgment of this Court on legal issues submitted by them and their adversaries for final determination to and by the Supreme Court and which fall within the judicial power to determine and adjudicate exclusively vested by the Constitution in the Supreme Court and in such inferior courts as may be established by law.
This is true, too, as regards judgments, otherwise appealable, which have become final and executory. Such judgments, being no longer reviewable by higher tribunals, are certainly not reviewable by any other body or authority. 3. Only Courts Authorized, under Fixed Rules to Declare Judgments or Orders Erroneous or Unjust To belabor the obvious, the determination of whether or not a judgement or order is unjust or was (or was not) rendered within the scope of the issuing judge's authority, or that the judge had exceeded his jurisdiction and powers or maliciously delayed the disposition of a case is an essentially judicial function, lodged by existing law and immemorial practice in a hierarchy of courts and ultimately in the highest court of the land. To repeat, no other entity or official of the Government, not the prosecution or investigation service or any other branch; nor any functionary thereof, has competence to review a judicial order or decision whether final and executory or not and pronounce it erroneous so as to lay the basis for a criminal or administrative complaint for rendering an unjust judgment or order. That prerogative belongs to the courts alone. 4. Contrary Rule Results in Circuitousness and Leads to Absurd Consequences Pragmatic considerations also preclude prosecution for supposed rendition of unjust judgments or interlocutory orders of the type above described, which, at bottom, consist simply of the accusation that the decisions or interlocutory orders are seriously wrong in their conclusions of fact or of law, or are tainted by grave abuse of discretion as distinguished from accusations of corruption, or immorality, or other wrongdoing. To allow institution of such proceedings would not only be legally improper, it would also result in a futile and circuitous exercise, and lead to absurd consequences. Assume that a case goes through the whole gamut of review in the judicial hierarchy; i.e., a judgment is rendered by a municipal trial court; it is reviewed and affirmed by the proper Regional Trial Court; the latter's judgment is appealed to and in due course affirmed by the Court of Appeals; and finally,
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the appellate court's decision is brought up to and affirmed by the Supreme Court. The prosecution of the municipal trial court judge who rendered the original decision (for knowingly rendering a manifestly unjust judgment) would appear to be out of the question; it would mean that the Office of the Ombudsman or of the public prosecutor would have to find, at the preliminary investigation, not only that the judge's decision was wrong and unjust, but by necessary implication that the decisions or orders of the Regional Trial Court Judge, as well as the Justices of the Court of Appeals and the Supreme Court who affirmed the original judgment were also all wrong and unjust most certainly an act of supreme arrogance and very evident supererogation. Pursuing the proposition further, assuming that the public prosecutor or Ombudsman should nevertheless opt to undertake a review of the decision in question despite its having been affirmed at all three (3) appellate levels and thereafter, disagreeing with the verdict of all four (4) courts, file an information in the Regional Trial Court against the Municipal Trial Court Judge, the fate of such an indictment at the hands of the Sandiganbayan or the Regional Trial Court would be fairly predictable. Even if for some reason the Municipal Trial Court Judge is convicted by the Sandiganbayan or a Regional Trial Court, the appeal before the Supreme Court or the Court of Appeals would have an inevitable result: given the antecedents, the verdict of conviction would be set aside and the correctness of the judgment in question, already passed upon and finally resolved by the same appellate courts, would necessarily be sustained. Moreover, in such a scenario, nothing would prevent the Municipal Trial Judge, in his turn, from filing a criminal action against the Sandiganbayan Justices, or the Regional Trial Court Judge who should convict him of the offense, for knowingly rendering an unjust judgment, or against the Justices of the Court of Appeals or the Supreme Court who should affirm his conviction. The situation is ridiculous, however the circumstances of the case may be modified, and regardless of whether it is a civil, criminal or administrative proceeding that is availed of as the vehicle to prosecute the judge for supposedly rendering an unjust decision or order. 5. Primordial Requisites for Administrative Criminal Prosecution This 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 or bad faith, ignorance or inexcusable negligence, on the part of the judge in rendering said judgement or order. That final declaration is ordinarily contained in the judgment rendered in the appellate proceedings in which the decision of the trial court in the civil or criminal action in question is challenged. What immediately comes to mind in this connection is a decision of acquittal or dismissal in a criminal action, as to which the same being unappealable it would be unreasonable to deny the State or the victim of the crime (or even public-spirited citizens) the opportunity to put to the test of proof such charges as they might see fit to press that it was unjustly rendered, with malice or by deliberate design, through inexcusable ignorance or negligence, etc. Even in this case, the essential requisite is that there be an authoritative judicial pronouncement of the manifestly unjust character of the judgment or order in question. Such a pronouncement may result from either (a) an action of certiorari
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or prohibition in a higher court impugning the validity of the; judgment, as having been rendered without or in excess of jurisdiction, or with grave abuse of discretion; e.g., there has been a denial of due process to the prosecution; or (b) if this be not proper, an administrative proceeding in the Supreme Court against the judge precisely for promulgating an unjust judgment or order. Until and unless there is such a final, authoritative judicial declaration that the decision or order in question is "unjust," no civil or criminal action against the judge concerned is legally possible or should be entertained, for want of an indispensable requisite. D. Judges Must be Free from Influence or Pressure Judges must be free to judge, without pressure or influence from external forces or factors. They should not be subject to intimidation, the fear of civil, criminal or administrative sanctions for acts they may do and dispositions they may make in the performance of their duties and functions. Hence it is sound rule, which must be recognized independently of statute, that judges are not generally liable for acts done within the scope of their jurisdiction and in good faith. This Court has repeatedly and uniformly ruled that a judge may not be held administratively accountable for every erroneous order or decision he renders. 55 To hold otherwise would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. 56 The error must be gross or patent, deliberate and malicious, or incurred with evident bad faith; 57 it is only in these cases that administrative sanctions are called for as an imperative duty of the Supreme Court. As far as civil or criminal liability is concerned, existing doctrine is that "judges of superior and general jurisdiction are not liable to respond in civil action for damages for what they may do in the exercise of their judicial functions when acting within their legal powers and jurisdiction." 58 Based on Section 9, Act No. 190, 59 the doctrine is still good law, not inconsistent with any subsequent legislative issuance or court rule: "No judge, justice of the peace or assessor shall be liable to a civil action for the recovery of damages by reason of any judicial action or judgment rendered by him in good faith, and within the limits of his legal powers and jurisdiction." Exception to this general rule is found in Article 32 of the Civil Code, providing that any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the enumerated rights and liberties of another person which rights are the same as those guaranteed in the Bill of Rights (Article III of the Constitution); shall be liable to the latter for damages. However, such liability is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. But again, to the extent that the offenses therein described have "unjust judgment or "unjust interlocutory order" for an essential element, it need only be reiterated that prosecution of a judge for any of them is subject to the caveat already mentioned: that such prosecution cannot be initiated, much less maintained, unless there be a final judicial pronouncement of the unjust character of the decision or order in issue. E. Afterword Considering the foregoing antecedents and long standing doctrines, it may well be asked why it took no less than sixteen (16) years and some fifty (50) grossly unfounded cases lodged by respondent
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Borromeo in the different rungs of the Judiciary before this Court decided to take the present administrative measure. The imposition on the time of the courts and the unnecessary work occasioned by respondent's crass adventurism are self-evident and require no further elaboration. If the Court, however, bore with him with Jobian patience, it was in the hope that the repeated rebuffs he suffered, with the attendant lectures on the error of his ways, would somehow seep into his understanding and deter him from further forays along his misguided path. After all, as has repeatedly been declared, the power of contempt is exercised on the preservative and not the vindictive principle. Unfortunately the Court's forbearance had no effect on him. Instead, the continued leniency and tolerance extended to him were read as signs of weakness and impotence. Worse, respondent's irresponsible audacity appears to have influenced and emboldened others to just as flamboyantly embark on their own groundless and insulting proceedings against the courts, born of affected bravado or sheer egocentrism, to the extent of even involving the legislative and executive departments, the Ombudsman included, in their assaults against the Judiciary in pursuit of personal agendas. But all things, good or bad, must come to an end, and it is time for the Court to now draw the line, with more promptitude, between reasoned dissent and self-seeking pretense. The Court accordingly serves notice to those with the same conceit or delusions that it will henceforth deal with them, decisively and fairly, with a firm and even hand, and resolutely impose such punitive sanctions as may be appropriate to maintain the integrity and independence of the judicial institutions of the country. WHEREFORE, Joaquin T. Borromeo is found and declared GUILTY of constructive contempt repeatedly committed over time, despite warnings and instructions given to him, and to the end that he may ponder his serious errors and grave misconduct and learn due respect for the Courts and their authority, he is hereby sentenced to serve a term of imprisonment of TEN (10) DAYS in the City Jail of Cebu City and to pay a fine of ONE THOUSAND PESOS (P1,000.00). He is warned that a repetition of any of the offenses of which he is herein found guilty, or any similar or other offense against courts, judges or court employees, will merit further and more serious sanctions. IT IS SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Puno, J., took no part.
IN RE: DACANAY, BM NO. 1678, DECEMBER 17, 2007 EN BANC B.M. No. 1678 December 17, 2007
PETITION FOR LEAVE TO RESUME PRACTICE OF LAW, BENJAMIN M. DACANAY, petitioner. RESOLUTION
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CORONA, J.: This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to resume the practice of law. Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he migrated to Canada in December 1998 to seek medical attention for his ailments. He subsequently applied for Canadian citizenship to avail of Canadas free medical aid program. His application was approved and he became a Canadian citizen in May 2004. On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and Re-Acquisition Act of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he took his oath of allegiance as a Filipino citizen before the Philippine Consulate General in Toronto, Canada. Thereafter, he returned to the Philippines and now intends to resume his law practice. There is a question, however, whether petitioner Benjamin M. Dacanay lost his membership in the Philippine bar when he gave up his Philippine citizenship in May 2004. Thus, this petition. In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules of Court: SECTION 2. Requirements for all applicants for admission to the bar. Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. Applying the provision, the Office of the Bar Confidant opines that, by virtue of his reacquisition of Philippine citizenship, in 2006, petitioner has again met all the qualifications and has none of the disqualifications for membership in the bar. It recommends that he be allowed to resume the practice of law in the Philippines, conditioned on his retaking the lawyers oath to remind him of his duties and responsibilities as a member of the Philippine bar. We approve the recommendation of the Office of the Bar Confidant with certain modifications. The practice of law is a privilege burdened with conditions. 2 It is so delicately affected with public interest that it is both a power and a duty of the State (through this Court) to control and regulate it in order to protect and promote the public welfare.3 Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality, faithful observance of the rules of the legal profession, compliance with the mandatory continuing legal education requirement and payment of membership fees to the Integrated Bar of the Philippines (IBP) are the conditions required for membership in good standing in the bar and for enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions makes him unworthy of the trust and confidence which the courts and clients repose in him for the continued exercise of his professional privilege. 4 Section 1, Rule 138 of the Rules of Court provides:
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SECTION 1. Who may practice law. Any person heretofore duly admitted as a member of the bar, or thereafter admitted as such in accordance with the provisions of this Rule, and who is in good and regular standing, is entitled to practice law. Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the statutory requirements and who is in good and regular standing is entitled to practice law. Admission to the bar requires certain qualifications. The Rules of Court mandates that an applicant for admission to the bar be a citizen of the Philippines, at least twenty-one years of age, of good moral character and a resident of the Philippines.5 He must also produce before this Court satisfactory evidence of good moral character and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.6 Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of educational, moral and other qualifications;7 passing the bar examinations;8 taking the lawyers oath9 and signing the roll of attorneys and receiving from the clerk of court of this Court a certificate of the license to practice. 10 The second requisite for the practice of law membership in good standing is a continuing requirement. This means continued membership and, concomitantly, payment of annual membership dues in the IBP; 11 payment of the annual professional tax;12 compliance with the mandatory continuing legal education requirement;13 faithful observance of the rules and ethics of the legal profession and being continually subject to judicial disciplinary control.14 Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in the Philippines? No. The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners.16 The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to RA 9225. This is because "all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of [RA 9225]."17 Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with RA 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Under RA 9225, if a person intends to practice the legal profession in the Philippines and he reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper authority for a license or permit to engage in such practice."18 Stated otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this Court the authority to do so, conditioned on: (a) the updating and payment in full of the annual membership dues in the IBP; (b) the payment of professional tax;
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(c) the completion of at least 36 credit hours of mandatory continuing legal education; this is specially significant to refresh the applicant/petitioners knowledge of Philippine laws and update him of legal developments and (d) the retaking of the lawyers oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. Compliance with these conditions will restore his good standing as a member of the Philippine bar. WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject to compliance with the conditions stated above and submission of proof of such compliance to the Bar Confidant, after which he may retake his oath as a member of the Philippine bar. SO ORDERED. Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur. Quisumbing, J., on leave.
RULE 138, RULES OF COURT
ATTORNEYS & ADMISSION TO BAR

Rule 138 Section 1. Who may practice law. - Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law.
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Sec. 2. Requirements for all applicants for admission to the bar. - Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. chan robles virtual law library
Requirements for lawyers who are citizens of the United States of America. - Citizens of the United States of America who, before July 4, 1946, were
Sec. 3. duly licensed members of the Philippine Bar, in active practice in the courts of the Philippines and in good and regular standing as such may, upon satisfactory proof of those facts before the Supreme Court, be allowed to continue such practice after taking the following oath of office:
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"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
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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 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." Sec. 4. Requirements for applicants from other jurisdictions. - Applicants for admission who, being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United States or in any circuit court of appeals or district court therein, or in the highest court of any State or Territory of the United States, and who can show by satisfactory certificates that they have practiced at least five years in any of said courts, that such practice began before July 4, 1946, and that they have never been suspended or disbarred, may, in the discretion of the Court, be admitted without examination.
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Sec. 5. Additional requirements for other applicants. All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. chan robles virtual law library Sec. 6. Pre-Law. - No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics. Sec. 7. Time for filing proof of qualifications. - All applicants for admission shall file with the clerk of the Supreme Court the evidence required by section 2 of this rule at least fifteen (15) days before the beginning of the examination. If not embraced within sections 3 and 4 of this rule they shall also file within the same period the affidavit and certificate required by section 5, and if embraced within sections 3 and 4 they shall exhibit a license evidencing the fact of their admission to practice, satisfactory evidence that the same has not been revoked, and certificates as to their professional standing. Applicants shall also file at the same time their own affidavits as to their age, residence, and citizenship. Sec. 8. Notice of applications. - Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish, for at least ten (10) days before the beginning of the examination.
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Sec. 9. Examination; subjects. - Applicants, not otherwise provided for in sections 3 and 4 of this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing). Sec. 10. Bar examination, by questions and answers, and in writing. Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone. Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used. chan robles virtual law library The committee of bar examiners shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given. Sec. 11. Annual examination. Examinations for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners. The subjects shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). Sec. 12. Committee of examiners. - Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports. Sec. 13. Disciplinary measures. No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court. chan robles virtual law library Sec. 14. Passing average. - In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent; Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent. Sec. 15. Report of the committee; filing of examination papers. - Not later than February 15th after the examination, or as soon thereafter as may be practicable,
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the committee shall file its reports on the result of such examination. The examination papers and notes of the committee shall be fixed with the clerk and may there be examined by the parties in interest, after the court has approved the report. Sec. 16. Failing candidates to take review course. - Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school. The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. Sec. 17. Admission and oath of successful applicants. - An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court the corresponding oath of office. Sec. 18. Certificate. - The Supreme Court shall thereupon admit the applicant as a member of the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of court, which certificate shall be his authority to practice. Sec. 19. Attorneys' roll. - The clerk of the Supreme Court shall keep a roll of all attorneys admitted to practice, which roll shall be signed by the person admitted when he receives his certificate. Sec. 20. Duties of attorneys. It is the duty of an attorney: (a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines; (b) To observe and maintain the respect due to the courts of justice and judicial officers; (c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law; (d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; (e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval; (f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; (g) Not to proceeding, encourage either the commencement or the continuance of or delay any man's cause, from any corrupt motive an action or or interest;
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(h) Never to defenseless reject, for any consideration or personal to

himself, the cause of the oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. Sec. 21. Authority of attorney to appear. - An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney wilfully appearing in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions. chan robles virtual law library
Attorney who appears in lower court presumed to represent client on appeal. - An attorney who appears de parte in a case before a lower court shall be
Sec. 22. presumed to continue representing his client on appeal, unless he files a formal petition withdrawing his appearance in the appellate court. Sec. 23. Authority of attorneys to bind clients. - Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in cash. Sec. 24. Compensation of attorneys; agreement as to fees. - An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. Sec. 25. Unlawful retention of client's funds; contempt. - When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution. Sec. 26. Change of attorneys. - An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party. A client may at any time dismiss his attorney or substitute another in his place, but if the contract between client and attorney has been reduced to writing and the dismissal of
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the attorney was without justifiable cause, he shall be entitled to recover from the client the full compensation stipulated in the contract. However, the attorney may, in the discretion of the court, intervene in the case to protect his rights. For the payment of his compensation the attorney shall have a lien upon all judgments for the payment of money, and executions issued in pursuance of such judgment, rendered in the case wherein his services had been retained by the client. Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
Suspension of attorney by the Court of Appeals or a Court of First Instance. - The Court of Appeals or a Court of First Instance may suspend an attorney
Sec. 28. from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises.
Upon suspension by Court of Appeals or Court of First Instance, further proceedings in Supreme Court. - Upon such suspension, the Court of Appeals
Sec. 29. or the Court of First Instance shall forthwith transmit to the Supreme Court a certified copy of the order or suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant. chan robles virtual law library Sec. 30. Attorney to be heard before removal or suspension. - No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte. Sec. 31. Attorneys for destitute litigants. - A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. Sec. 32. Compensation for attorneys de oficio. - Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall not be less than thirty pesos (P30.00) in any case, nor more than the following amounts: (1) Fifty pesos (P50.00) in light felonies; (2) One hundred pesos (P100.00) in less grave felonies; (3) Two hundred pesos (P200.00) in grave felonies other than capital offenses; (4) Five hundred pesos (P500.00) in capital offenses. chan robles virtual law library
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Sec. 33. Standing in court of persons authorized to appear for Government. Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect. Sec. 34. By whom litigation conducted. - In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar. Sec. 35. Certain attorneys not to practice. No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advice to clients. Sec. 36. Amicus curiae. The application, permit the appearance, opinion can help in the disposition initiative, invite prominent attorneys court may, in special cases, and upon proper as amici curiae, of those lawyers who in its of the matter before it; or it may, on its own to appear as amici curiae in such special cases.
Sec. 37. Attorneys' liens. - An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.
RULES 138-A, RULES OF COURT
LAW STUDENT PRACTICE RULE

Rule 138-A SECTION 1. Conditions for Student Practice. - A law student who has successfully completed 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school. chan robles virtual law library SEC. 2. Appearance. - The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the
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Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic. SEC. 3. Privileged communications. - The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic. SEC. 4. Standards of conduct and supervision. - The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action. (SC Circular No. 19, prom.
Dec. 19, 1986).
Canon 1
BONGALONTA V. CASTILLO, 240 SCRA 310
THIRD DIVISION
CBD Case No. 176 January 20, 1995 SALLY D. BONGALONTA, complainant, vs. ATTY. PABLITO M. CASTILLO and ALFONSO M. MARTIJA, respondents. RESOLUTION
MELO, J.: In a sworn letter-complaint dated February 15, 1995, addressed to the Commission on Bar Discipline, National Grievance Investigation Office, Integrated Bar of the Philippines, complainant Sally Bongalonta charged Pablito M. Castillo and Alfonso M. Martija, members of the Philippine Bar, with unjust and unethical conduct, to wit: representing conflicting interests and abetting a scheme to frustrate the execution or satisfaction of a judgment which complainant might obtain. The letter-complaint stated that complainant filed with the Regional Trial Court of Pasig, Criminal Case No. 7635-55, for estafa, against the Sps. Luisa and Solomer Abuel. She also filed, a separate civil action Civil Case No. 56934, where she was able to obtain a writ of preliminary attachment and
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by virtue thereof, a piece of real property situated in Pasig, Rizal and registered in the name of the Sps. Abuel under TCT No. 38374 was attached. Atty. Pablito Castillo was the counsel of the Sps. Abuel in the aforesaid criminal and civil cases. During the pendency of these cases, one Gregorio Lantin filed civil Case No. 58650 for collection of a sum of money based on a promissory note, also with the Pasig Regional Trial Court, against the Sps. Abuel. In the said case Gregorio Lantin was represented by Atty. Alfonso Martija. In this case, the Sps. Abuel were declared in default for their failure to file the necessary responsive pleading and evidence ex-parte was received against them followed by a judgment by default rendered in favor of Gregorio Lantin. A writ of execution was, in due time, issued and the same property previously attached by complainant was levied upon. It is further alleged that in all the pleadings filed in these three (3) aforementioned cases, Atty. Pablito Castillo and Atty. Alfonso Martija placed the same address, the same PTR and the same IBP receipt number to wit" Permanent Light Center, No. 7, 21st Avenue, Cubao, Quezon City, PTR No. 629411 dated 11-5-89 IBP No. 246722 dated 1-12-88. Thus, complainant concluded that civil Case No. 58650 filed by Gregorio Lantin was merely a part of the scheme of the Sps. Abuel to frustrate the satisfaction of the money judgment which complainant might obtain in Civil Case No. 56934. After hearing, the IBP Board of Governors issued it Resolution with the following findings and recommendations:
Among the several documentary exhibits submitted by Bongalonta and attached to the records is a xerox copy of TCT No. 38374, which Bongalonta and the respondents admitted to be a faithful reproduction of the original. And it clearly appears under the Memorandum of Encumbrances on aid TCT that the Notice of Levy in favor of Bongalonta and her husband was registered and annotated in said title of February 7, 1989, whereas, that in favor of Gregorio Lantin, on October 18, 1989. Needless to state, the notice of levy in favor of Bongalonta and her husband is a superior lien on the said registered property of the Abuel spouses over that of Gregorio Lantin. Consequently, the charge against the two respondents (i.e. representing conflicting interests and abetting a scheme to frustrate the execution or satisfaction of a judgment which Bongalonta and her husband might obtain against the Abuel spouses) has no leg to stand on. However, as to the fact that indeed the two respondents placed in their appearances and in their pleadings the same IBP No. "246722 dated 1-12-88", respondent Atty. Pablito M. Castillo deserves to be SUSPENDED for using, apparently thru his negligence, the IBP official receipt number of respondent Atty. Alfonso M. Martija. According to the records of the IBP National Office, Atty. Castillo paid P1,040.00 as his delinquent and current membership dues, on February 20, 1990, under IBP O.R. No. 2900538, after Bongalonta filed her complaint with the IBP Committee on Bar Discipline. The explanation of Atty. Castillo's Cashier-Secretary by the name of Ester Fraginal who alleged in her affidavit dated March 4, 1993, that it was all her fault in placing the IBP official receipt number pertaining to Atty. Alfonso M. Martija in the appearance and pleadings Atty. Castillo and in failing to pay in due time the IBP membership dues of her employer, deserves scant consideration, for it is the bounded duty and obligation of every lawyer to see to it that he pays his IBP membership dues on time, especially when he practices before the courts, as required by the Supreme Court.
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WHEREFORE, it is respectfully recommended that Atty. Pablito M. Castillo be SUSPENDED from the practice of law for a period of six (6) months for using the IBP Official Receipt No. of his co-respondent Atty. Alfonso M. Martija. The complaint against Atty. Martija is hereby DISMISSED for lack of evidence. (pp. 2-4, Resolution)
The Court agrees with the foregoing findings and recommendations. It is well to stress again that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. One of these requirements is the observance of honesty and candor. Courts are entitled to expect only complete candor and honesty from the lawyers appearing and pleading before them. A lawyer, on the other hand, has the fundamental duty to satisfy that expectation. for this reason, he is required to swear to do no falsehood, nor consent to the doing of any in court. WHEREFORE, finding respondent Atty. Pablito M. Castillo guilty committing a falsehood in violation of his lawyer's oath and of the Code of Professional Responsibility, the Court Resolved to SUSPEND him from the practice of law for a period of six (6) months, with a warning that commission of the same or similar offense in the future will result in the imposition of a more severe penalty. A copy of the Resolution shall be spread on the personal record of respondent in the Office of the Bar Confidant. SO ORDERED. Feliciano, Bidin, Romero and Vitug, JJ., concur.
MORENO V. ARANETA, A.C. NO. 1109, APRIL 27, 2005 EN BANC A.C. No. 1109 April 27, 2005
MARIA ELENA MORENO, Complainant, vs. ATTY. ERNESTO ARANETA, respondent. DECISION PER CURIAM: Before this Court is a complaint for disbarment against Atty. Ernesto S. Araneta for deceit and nonpayment of debts. The complaint,1 dated 25 September 1972, was filed in this Court by Maria Elena Moreno on two causes of action. The first cause of action involved Treasury Warrant No. B-02997354 issued by the Land Registration Commission in favor of Lira, Inc., and indorsed by Araneta, purportedly as president of the said corporation, to
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Moreno, in consideration of the amount of P2,177. The complaint alleged that almost a year later, the warrant was dishonored. The second cause of action involved Aranetas nonpayment of debts in the amount of P11,000. Moreno alleged that sometime in October 1972, Araneta borrowed P5,000 from her, purportedly to show to his associates, with the assurance that he would return the said amount within the shortest possible time. Again in May 1972, Araneta borrowed P6,000 for the same purpose and with the same assurance. Thereafter, since he failed to make good on both promises, Moreno sought repayment in the aggregate amount of P11,000. Araneta issued two Bank of America checks in her favor, the first dated 30 June 1972 for P6,000, and the other dated 15 July 1972 for P5,000. However, when Moreno tried to encash the checks, the same were dishonored and returned to her marked "Account Closed." She referred the matter to a lawyer, who sent Araneta a demand letter. Araneta, however, ignored the same. In his defense, Araneta claimed it was in fact Moreno who sought to borrow P2,500 from him. To accommodate her, he allegedly endorsed to her the Treasury Warrant in question, worth P2,177, which he received from Lira, Inc., as part of his attorneys fees, and gave her an additional P323 in cash. Araneta also denied borrowing any amount from Moreno. He admitted that he issued the two undated checks in her favor, but maintains that he had no intention of negotiating them. He avers that he gave them to Moreno, allegedly upon her request, only so she could show the bank where she was working that she "had money coming to her." Araneta further claims that he warned her that the checks belonged to the unused portion of a closed account and could not be encashed. To protect himself, he asked the complainant to issue a check in the amount of P11,000 to offset the two "borrowed" checks. The respondent offered this check in evidence. Moreno, however, contended2 that this check for P11,000 "belonged" to the Philippine Leasing Corporation, which she managed when her father passed away. She claimed she signed the check in blank sometime in 1969 when she fell seriously ill and gave them to Araneta who was then helping her in the management of the corporation. She concluded that Araneta falsely filled up the check "in a desperate bid to turn the tables on her."3 On 01 December 1972, the case was referred to the Solicitor General for investigation, report and recommendation.4 The case was first set for hearing on 22 January 1973 at nine oclock in the morning, when the complainant and her counsel appeared. Araneta was absent despite due notice. Upon motion, however, of Moreno, and to give the respondent a chance to defend himself, the hearing was reset to 23 and 24 January 1973, both at nine oclock in the morning. Service of the notice for the new dates of hearing were effected to the respondent through a certain Mely Magsipoc on 22 January 1973.5 On 23 January 1973, Araneta once more did not appear, so the case was called again the following day, 24 January 1973. In the absence of respondent Araneta, an ex-parte hearing was conducted on 24 January 1973 with the complainant, Moreno, taking the stand.6 On 27 February 1973, Araneta appeared for the scheduled hearing, only to ask for a postponement to prepare his defense.7 No further hearings appear to have been conducted thereafter. A hearing is shown to have been scheduled on 28 May 1973, however, on said date, Araneta filed a joint motion for postponement with the conform of Morenos lawyer, as he, Araneta, was "earnestly pursuing a possible clarification of complainants basic grievance."
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Thereafter, nothing was heard from respondent Araneta. On 14 September 1988, records of the case were forwarded to the IBP Commission on Bar Discipline pursuant to Rule 139-B of the Rules of Court. Two days later, the Commission notified8 both parties of a hearing to be held on 2 November 1988, on which date neither of the parties nor the complainants counsel appeared despite due notice. It appears that notice could not be served on Araneta, as he no longer resided in his indicated address, and his whereabouts were unknown. An inquiry9 made at his IBP chapter yielded negative results. The Commission reset the hearing to 18 November 1988 at two oclock in the afternoon.10 Again on this date, none of the parties appeared. Thus on the basis of the evidence so far adduced, the case was submitted for resolution on such date. 11 On 28 December 1988, IBP Commissioner Concepcion Buencamino submitted her Report,12 which reads in part: The evidence of the complainant was not formally offered in evidence. Be that as it may, it is worthwhile considering. The "stop payment" of Treasury Warrant No. B-02997354 was an act of Lira, Inc. and not that of the respondent. There was a subpoena issued for the appearance of Lilia Echaus, alleged President of Lira, Inc. and Simplicio Uy Seun, the alleged Secretary/Treasurer of Lira, Inc. to explain about why the "stop payment" of the treasury warrant was done but neither witness appeared (as evidenced by the records) before the Office of the Solicitor General to testify. At the dorsal portion of Exh. "B," the photocopy of the Treasury Warrant is a signature which complainant claims to be that of the respondent beneath which is the word "President" and above the signature are the words Lira, Inc. but an ocular examination of said signature in relation to the signature on the checks Exhibits "G" and "H" do not show definitely that they were the signatures of one and the same person, so there is no basis to form the conclusion that the respondent did sign the treasury warrant as president of Lira, Inc. The testimony of the complainant was merely that [the] same treasury warrant was given to her by Atty. Araneta, which she deposited [in] her account. There is no evidence to prove that she saw him sign it. There is no evidence of a letter of the complainant informing the respondent about the "stop payment" or even any written demand by the complainant to the respondent that the payment of the treasury warrant having been "stopped" he should reimburse her with what he received as consideration for this check. Same considered, there is no cause to fault the respondent for the first cause of action. On the other hand, the respondent admits having issued the two checks, one for P5,000.00 and the other for P6,000.00 to the complainant for her to show to her creditors that money was coming her way, when in fact he is presumed to have been aware when he issued said checks that his account with the bank against which [these] checks were drawn was already closed, as was discovered from the fact that the checks were dishonored for said reason. Even disregarding the complainants evidence and considering the answer of the respondent, the act of the respondent in issuing the two checks, one for P5,000.00 and the other for P6,000.00 which he gave to the complainant for her to show to her creditors that money was coming her way, when there was none and the respondent knew such fact was an act of connivance of the respondent with the complainant to make use of these useless commercial documents to deceive the public. However beneficial it may have been to the complainant, this act of the respondent as a lawyer is abhorrent and against the exacting standards of morality and decency required of a member of the Bar.
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The personal actuations of a member of the bar the like of which was, as in this case, committed by the respondent, belittles the confidence of the public in him and reflects upon his integrity and morality. In the Bar, moral integrity as a virtue is a necessity which the respondent lacks. The above considered, it is respectfully recommended that as a lesson the respondent be suspended from the practice of law for three (3) months arising from his irresponsible conduct as a member of the bar to take effect upon notice by him of the decision of suspension. The IBP Board of Governors adopted13 the above report, but increased its recommended period of suspension from three months to six months. Over ten years later, on 15 October 2002, IBP Director for Bar Discipline Victor C. Fernandez, transmitted 14 the records of this case back to this Court pursuant to Rule 139-B, Sec. 12(b) of the Rules of Court.15 On 8 July 2003, the Office of the Bar Confidant filed a Report16 regarding various aspects of the case. The Report further made mention of a Resolution17 from this Court indefinitely suspending the respondent for having been convicted by final judgment of estafa through falsification of a commercial document. The Resolution, which was attached to the report, states: L-46550 (Ernesto S. Araneta vs. Court of Appeals, et. al.) Considering that the motion of petitioner Ernesto S. Araneta for reconsideration of the resolution of September 16, 1977 which denied the petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. 18553-R which affirmed the decision of the Court of First Instance of Manila convicting the said petitioner of the crime of estafa thru falsification of commercial document, was denied in the resolution dated October 17, 1977 of the Second Division of this Court for lack of merit, which denial is final, the Court Resolved: (a) to SUSPEND petitioner Ernesto S. Araneta from the practice of law and (b) to require the said petitioner to SHOW CAUSE within ten days from notice why he should not be disbarred. Verification conducted by the Office of the Bar Confidant revealed that the above case had been archived on 20 November 1992. It therefore appears that in the intervening time between herein respondents last filed pleading dated 28 May 1973, when he sought a postponement of the scheduled hearing on this case to settle matters amicably between himself and Moreno, and the present, Araneta had been found guilty and convicted by final judgment of a crime involving moral turpitude, and indefinitely suspended. We find no reason to disturb the findings of Commissioner Buencamino. However, we disagree with the penalty sought to be imposed. Whether or not the complainant sufficiently proved that Araneta failed to pay his debts is irrelevant, because by his own admission, the respondent issued two checks in favor of Moreno knowing fully well that the same were drawn against a closed account. And though Batas Pambansa Blg. 22 had not yet been passed at that time, the IBP correctly found this act "abhorrent and against the exacting standards of morality and decency required of a member of the Bar," which "belittles the confidence of the public in him and reflects upon his integrity and morality." Indeed, in recent cases, we have held that the issuance of worthless checks constitutes gross misconduct, 18 as the effect "transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also
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an injury to the public" since the circulation of valueless commercial papers "can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. Thus, paraphrasing Black's definition, a drawer who issues an unfunded check deliberately reneges on his private duties he owes his fellow men or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals."19 Thus, we have held that the act of a person in issuing a check knowing at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment, is also a manifestation of moral turpitude. 20 In Co v. Bernardino21 and Lao v. Medel,22 we held that for issuing worthless checks, a lawyer may be sanctioned with one years suspension from the practice of law, or a suspension of six months upon partial payment of the obligation.23 In the instant case, however, herein respondent has, in the intervening time, apparently been found guilty by final judgment of estafa thru falsification of a commercial document, a crime involving moral turpitude, for which he has been indefinitely suspended. Moral turpitude "includes everything which is done contrary to justice, honesty, modesty, or good morals." 24 It involves "an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals."25 Considering that he had previously committed a similarly fraudulent act, and that this case likewise involves moral turpitude, we are constrained to impose a more severe penalty. In fact, we have long held26 that disbarment is the appropriate penalty for conviction by final judgment of a crime involving moral turpitude. As we said in In The Matter of Disbarment Proceedings v. Narciso N. Jaramillo,27 "[t]he review of respondent's conviction no longer rests upon us. The judgment not only has become final but has been executed. No elaborate argument is necessary to hold the respondent unworthy of the privilege bestowed on him as a member of the bar. Suffice it to say that, by his conviction, the respondent has proved himself unfit to protect the administration of justice."28 WHEREFORE, respondent Atty. Ernesto S. Araneta is hereby dISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be entered in the respondents record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Carpio-Morales, J., on leave.
Canon 2
ULEP V. LEGAL CLINIC, INC., 223 SCRA 378
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EN BANC
Bar Matter No. 553 June 17, 1993 MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC., respondent. R E SO L U T I O N
REGALADO, J.: Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law." The advertisements complained of by herein petitioner are as follows:
Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 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. Tel. 5217232; 521-7251; 522-2041; 521-0767
1
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It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted. In its answer to the petition, respondent admits the fact of publication of said advertisement at its instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support services" through paralegals with the use of modern computers and electronic machines. Respondent further argues that assuming that the services advertised are legal services, the act of advertising these services should be allowed supposedly in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977. Considering the critical implications on the legal profession of the issues raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations readily responded and extended their valuable services and cooperation of which this Court takes note with appreciation and gratitude. The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the subject of the advertisements herein complained of. Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and enlightening to present hereunder excerpts from the respective position papers adopted by the aforementioned bar associations and the memoranda submitted by them on the issues involved in this bar matter.
1. Integrated Bar of the Philippines: xxx xxx xxx Notwithstanding the subtle manner by which respondent endeavored to distinguish the two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial distinction. For who could deny that document search, evidence gathering, assistance to layman in need of basic institutional services from government or non-government agencies like birth, marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law? xxx xxx xxx The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services). The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications.
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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. Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered. It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not. B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy. It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is: Article 26. . . . Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law. It must not be forgotten, too, that the Family Code (defines) a marriage as follows: Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code.
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By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon CunetaGabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed. Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar. xxx xxx xxx It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general. The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by non-members of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business. Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill. 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.
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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: 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
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3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. The Legal Clinic is engaged in the practice of law; 2. Such practice is unauthorized; 3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and 4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court. As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws. Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience. Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7 4. U.P. Women Lawyers' Circle: In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law. At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a fouryear 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
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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 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
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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 preempted 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. 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
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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 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-
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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 (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.
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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:
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. . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852).
This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters or estate and guardianship have been held to 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
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institutional services from government or non-government agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20
While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule. What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily 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.
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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 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.
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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 self-laudation. 36 The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation. The pertinent part of the decision therein reads:
It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127
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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 wellmerited 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
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Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions. The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers:
Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14%
Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession. In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly 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
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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. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur
BAR MATTER NO. 2012, FEBRUARY 10, 2009 B.M. No. 2012 February 10, 2009
PROPOSED RULE ON MANDATORY LEGAL AID SERVICE FOR PRACTICING LAWYERS RESOLUTION Acting on the Memorandum dated January 27, 2009 of Justice Renato C. Corona re: Comment of the Integrated Bar of the Philippines on our Suggested Revisions to the Proposed Rule of Mandatory Legal Aid Service for Practicing Lawyers, the Court Resolved to APPROVE the same. This Resolution shall take effect on July 1, 2009 following publication of the said Rule and its implementing regulations in at least two (2) newpapers of general circulation. February 10, 2009
REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice ANTONIO T. CARPIO Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice
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RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice
CONCHITA CARPIO MORALES Associate Justice DANTE O. TINGA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice
RULE ON MANDATORY LEGAL AID SERVICE SECTION 1. Title. - This Rule shall be known as "The Rule on Mandatory Legal Aid Service." SECTION 2. Purpose. - This Rule seeks to enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants. SECTION 3. Scope. - This Rule shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines. SECTION 4. Definition of Terms. - For purposes of this Rule: (a) Practicing lawyers are members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples. The term "practicing lawyers" shall exclude: (i) Government employees and incumbent elective officials not allowed by law to practice; (ii) Lawyers who by law are not allowed to appear in court; (iii) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants and
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(iv) Lawyers not covered under subparagraphs (i) to (iii) including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies. (b) Indigent and pauper litigants are those defined under Rule 141, Section 19 of the Rules of Court and Algura v. The Local Government Unit of the City of Naga (G.R. No.150135, 30 October 2006, 506 SCRA 81); (c) Legal aid cases are those actions, disputes, and controversies that are criminal, civil and administrative in nature in whatever stage wherein indigent and pauper litigants need legal representation; (d) Free legal aid services refer to appearance in court or quasi-judicial body for and in behalf of an indigent or pauper litigant and the preparation of pleadings or motions. It shall also cover assistance by a practicing lawyer to indigent or poor litigants in court-annexed mediation and in other modes of alternative dispute resolution (ADR). Services rendered when a practicing lawyer is appointed counsel de oficio shall also be considered as free legal aid services and credited as compliance under this Rule; (e) Integrated Bar of the Philippines (IBP) is the official national organization of lawyers in the country; (f) National Committee on Legal Aid (NCLA) is the committee of the IBP which is specifically tasked with handling legal aid cases; (g) Committee on Bar Discipline (CBD) is the committee of the IBP which is specifically tasked with disciplining members of the Bar; (h) IBP Chapters are those chapters of the Integrated Bar of the Philippines located in the different geographical areas of the country as defined in Rule 139-A and (i) Clerk of Court is the Clerk of Court of the court where the practicing lawyer rendered free legal aid services. In the case of quasi-judicial bodies, it refers to an officer holding an equivalent or similar position. The term shall also include an officer holding a similar position in agencies exercising quasi-judicial functions, or a responsible officer of an accredited PO or NGO, or an accredited mediator who conducted the court-annexed mediation proceeding. SECTION 5. Requirements. (a) Every practicing lawyer is required to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than five (5) hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods. For this purpose, a practicing lawyer shall coordinate with the Clerk of Court for cases where he may render free legal aid service. He may also coordinate with the IBP Legal Aid Chairperson of the IBP Chapter to inquire about cases where he may render free legal aid service. In this connection, the IBP
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Legal Aid Chairperson of the IBP Chapter shall regularly and actively coordinate with the Clerk of Court. The practicing lawyer shall report compliance with the requirement within ten (10) days of the last month of each quarter of the year. (b) A practicing lawyer shall be required to secure and obtain a certificate from the Clerk of Court attesting to the number of hours spent rendering free legal aid services in a case. The certificate shall contain the following information: (i) The case or cases where the legal aid service was rendered, the party or parties in the said case(s) for whom the service was rendered, the docket number of the said case(s) and the date(s) the service was rendered. (ii) The number of hours actually spent attending a hearing or conducting trial on a particular case in the court or quasi-judicial body. (iii) The number of hours actually spent attending mediation, conciliation or any other mode of ADR on a particular case. (iv) A motion (except a motion for extension of time to file a pleading or for postponement of hearing or conference) or pleading filed on a particular case shall be considered as one (1) hour of service. The Clerk of Court shall issue the certificate in triplicate, one (1) copy to be retained by the practicing lawyer, one (1) copy to be retained by the Clerk of Court and one (1) copy to be attached to the lawyer's compliance report. (c) Said compliance report shall be submitted to the Legal Aid Chairperson of the IBP Chapter within the courts jurisdiction. The Legal Aid Chairperson shall then be tasked with immediately verifying the contents of the certificate with the issuing Clerk of Court by comparing the copy of the certificate attached to the compliance report with the copy retained by the Clerk of Court. (d) The IBP Chapter shall, after verification, issue a compliance certificate to the concerned lawyer. The IBP Chapter shall also submit the compliance reports to the IBPs NCLA for recordi ng and documentation. The submission shall be made within forty-five (45) days after the mandatory submission of compliance reports by the practicing lawyers. (e) Practicing lawyers shall indicate in all pleadings filed before the courts or quasi-judicial bodies the number and date of issue of their certificate of compliance for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records. (f) Before the end of a particular year, lawyers covered by the category under Section 4(a)(i) and (ii), shall fill up a form prepared by the NCLA which states that, during that year, they are employed with the government or incumbent elective officials not allowed by law to practice or lawyers who by law are not allowed to appear in court.
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The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Two Thousand Pesos (P2,000). Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program. (g) Before the end of a particular year, lawyers covered by the category under Section 4(a)(iii) shall secure a certification from the director of the legal clinic or of the concerned NGO or PO to the effect that, during that year, they have served as supervising lawyers in a legal clinic or actively participated in the NGOs or POs free legal aid activities. The certification shall be submitted to the IBP Chapter or IBP National Office. (h) Before the end of a particular year, lawyers covered by the category under Section 4(a)(iv) shall fill up a form prepared by the NCLA which states that, during that year, they are neither practicing lawyers nor covered by Section (4)(a)(i) to (iii). The form shall be sworn to and submitted to the IBP Chapter or IBP National Office together with the payment of an annual contribution of Four Thousand Pesos (P4,000) by way of support for the efforts of practicing lawyers who render mandatory free legal aid services. Said contribution shall accrue to a special fund of the IBP for the support of its legal aid program. (i) Failure to pay the annual contribution shall subject the lawyer to a penalty of Two Thousand Pesos (P2,000) for that year which amount shall also accrue to the special fund for the legal aid program of the IBP. SECTION 6. NCLA. (a) The NCLA shall coordinate with the various legal aid committees of the IBP local chapters for the proper handling and accounting of legal aid cases which practicing lawyers can represent. (b) The NCLA shall monitor the activities of the Chapter of the Legal Aid Office with respect to the coordination with Clerks of Court on legal aid cases and the collation of certificates submitted by practicing lawyers. (c) The NCLA shall act as the national repository of records in compliance with this Rule. (d) The NCLA shall prepare the following forms: certificate to be issued by the Clerk of Court and forms mentioned in Section 5(e) and (g). (e) The NCLA shall hold in trust, manage and utilize the contributions and penalties that will be paid by lawyers pursuant to this Rule to effectively carry out the provisions of this Rule. For this purpose, it shall annually submit an accounting to the IBP Board of Governors. The accounting shall be included by the IBP in its report to the Supreme Court in connection with its request for the release of the subsidy for its legal aid program. SECTION 7. Penalties. (a) At the end of every calendar year, any practicing lawyer who fails to meet the minimum prescribed 60 hours of legal aid service each year shall be required by the IBP, through the NCLA, to explain why he was unable to render the minimum prescribed number of hours. If no explanation has been given or if
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the NCLA finds the explanation unsatisfactory, the NCLA shall make a report and recommendation to the IBP Board of Governors that the erring lawyer be declared a member of the IBP who is not in good standing. Upon approval of the NCLAs recommendation, the IBP Board of Governors shall declare the erring lawyer as a member not in good standing. Notice thereof shall be furnished the erring lawyer and the IBP Chapter which submitted the lawyers compliance report or the IBP Chapter where the lawyer is registered, in case he did not submit a compliance report. The notice to the lawyer shall include a directive to pay Four Thousand Pesos (P4,000) penalty which shall accrue to the special fund for the legal aid program of the IBP. (b) The "not in good standing" declaration shall be effective for a period of three (3) months from the receipt of the erring lawyer of the notice from the IBP Board of Governors. During the said period, the lawyer cannot appear in court or any quasi-judicial body as counsel. Provided, however, that the "not in good standing" status shall subsist even after the lapse of the three-month period until and unless the penalty shall have been paid. (c) Any lawyer who fails to comply with his duties under this Rule for at least three (3) consecutive years shall be the subject of disciplinary proceedings to be instituted motu proprio by the CBD. The said proceedings shall afford the erring lawyer due process in accordance with the rules of the CBD and Rule 139-B of the Rules of Court. If found administratively liable, the penalty of suspension in the practice of law for one (1) year shall be imposed upon him. (d) Any lawyer who falsifies a certificate or any form required to be submitted under this Rule or any contents thereof shall be administratively charged with falsification and dishonesty and shall be subject to disciplinary action by the CBD. This is without prejudice to the filing of criminal charges against the lawyer. (e) The falsification of a certificate or any contents thereof by any Clerk of Court or by any Chairperson of the Legal Aid Committee of the IBP local chapter where the case is pending or by the Director of a legal clinic or responsible officer of an NGO or PO shall be a ground for an administrative case against the said Clerk of Court or Chairperson. This is without prejudice to the filing of the criminal and administrative charges against the malfeasor. SECTION 8. Credit for Mandatory Continuing Legal Education (MCLE). - A lawyer who renders mandatory legal aid service for the required number of hours in a year for the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: two (2) credit units for legal ethics, two (2) credit units for trial and pretrial skills, two (2) credit units for alternative dispute resolution, four (4) credit units for legal writing and oral advocacy, four (4) credit units for substantive and procedural laws and jurisprudence and six (6) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(9), Rule 2 of the Rules on MCLE. A lawyer who renders mandatory legal aid service for the required number of hours in a year for at least two consecutive years within the three year-period covered by a compliance period under the Rules on MCLE shall be credited the following: one (1) credit unit for legal ethics, one (1) credit unit for trial and pretrial skills, one (1) credit unit for alternative dispute resolution, two (2) credit units for legal writing and oral advocacy, two (2) credit units for substantive and procedural laws and jurisprudence and three (3) credit units for such subjects as may be prescribed by the MCLE Committee under Section 2(g), Rule 2 of the Rules on MCLE.
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SECTION 9. Implementing Rules. - The IBP, through the NCLA, is hereby given authority to recommend implementing regulations in determining who are "practicing lawyers," what constitute "legal aid cases" and what administrative procedures and financial safeguards which may be necessary and proper in the implementation of this rule may be prescribed. It shall coordinate with the various legal chapters in the crafting of the proposed implementing regulations and, upon approval by the IBP Board of Governors, the said implementing regulations shall be transmitted to the Supreme Court for final approval. SECTION 10. Effectivity. - This Rule and its implementing rules shall take effect on July 1,2009 after they have been published in two (2) newspapers of general circulation.
Canon 3 Canon 4 Canon 5

BAR MATTER NO. 850, OCTOBER 2, 2001
RESOLUTION ADOPTING THE REVISED RULES ON THE CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES Considering the Rules on the 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 approve, as it hereby approves, the following Revised Rules for proper implementation:chanroblesvirtuallawlibrary 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. chan robles virtual law library RULE 2 MANDATORY CONTINUING LEGAL EDUCATION SECTION 1. Commencement of the MCLE. - Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted and shall
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commence the implementation of the Mandatory Continuing Legal Education (MCLE) program in accordance with these Rules.cralaw SEC. 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:chanroblesvirtuallawlibrary (a) At least six (6) hours shall be devoted to legal ethics equivalent to six (6) credit units. (b) At least four (4) hours shall be devoted to trial and pretrial skills equivalent to four (4) credit units. (c) At least five (5) hours shall be devoted to alternative dispute resolution equivalent to five (5) credit units. (d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence equivalent to nine (9) credit units. (e) At least four (4) hours shall be devoted to legal writing and oral advocacy equivalent to four (4) credit units. (f) At least two (2) hours shall be devoted to international law and international conventions equivalent to two (2) credit units. (g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee equivalent to six (6) credit units. RULE 3 COMPLIANCE PERIOD SECTION 1. Initial compliance period. - The initial compliance period shall begin not later than three (3) months from the adoption of these Rules. 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. chan robles virtual law library SEC. 2. Compliance Groups. - Members of the IBP not exempt from the MCLE requirement shall be divided into three (3) compliance groups, namely:chanroblesvirtuallawlibrary (a) Compliance group 1. - Members in the National Capital Region (NCR) or Metro Manila are assigned to Compliance Group 1. (b) Compliance group 2. - Members in Luzon outside NCR are assigned to Compliance Group 2. (c) Compliance group 3. - Members in Visayas and Mindanao are assigned to Compliance Group 3. Nevertheless, members may participate in any legal education activity wherever it may be available to earn credit unit toward compliance with the MCLE requirement. SEC. 3. Compliance period of members admitted or readmitted after establishment of the program. Members admitted or readmitted to the Bar after the establishment of the program
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shall be assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission.cralaw 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.cralaw (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. CREDIT UNITS ARE EQUIVALENT TO CREDIT HOURS. CREDIT UNITS measure compliance with the MCLE requirement under the Rules, based on the category of the lawyers participation in the MCLE activity. The following are the guidelines for computing credit units and the supporting documents required therefor:
PROGRAMS/ACTIVITY
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. PARTICIPANT/ ATTENDEE 1 CU PER CERTIFICATE OF HOUR OF ATTENDANCE WITH ATTENDANCE NUMBER OF HOURS PHOTOCOPY OF PLAQUE OR SPONSORS CERTIFICATION
1.2 LECTURER FULL CU FOR RESOURCE SPEAKER THE SUBJECT PER COMPLIANCE PERIOD 1.3 PANELIST/REACTOR COMMENTATOR/ MODERATOR/ COORDINATOR/ FACILITATOR
OF CU CERTIFICATION FROM FOR THE SPONSORING SUBJECT PER ORGANIZATION COMPLIANCE PERIOD
2. AUTHORSHIP, EDITING AND REVIEW
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2.1 LAW BOOK OF FULL CU FOR PUBLISHED BOOK NOT LESS THAN 100 THE PAGES SUBJECT PER COMPLIANCE PERIOD 2.2 BOOK EDITOR OF THE PUBLISHED BOOK CU OF WITH PROOF AS AUTHORSHIP EDITOR CATEGORY OF CU FOR THE SUBJECT PER COMPLIANCE PERIOD DULY CERTIFIED/PUBLISHED TECHNICAL REPORT/PAPER
2.3 RESEARCH PAPER INNOVATIVE PROGRAM/ CREATIVE PROJECT 2.4 LEGAL ARTICLE OF AT LEAST TEN (10) PAGES
OF CU PUBLISHED ARTICLE FOR THE SUBJECT PER COMPLIANCE PERIOD 1 CU PER ISSUE PUBLISHED NEWSLETTER/JOURNAL
2.5 LEGAL NEWSLETTER/ LAW JOURNAL EDITOR 2.6 PROFESSORIAL CHAIR/ BAR REVIEW LECTURE LAW TEACHING/
FULL CU FOR CERTIFICATION OF THE LAW DEAN OR BAR SUBJECT PER REVIEW DIRECTOR COMPLIANCE PERIOD
RULE 5 CATEGORIES OF CREDIT UNITS SECTION 1. Classes participatory.cralaw of credit units . -Credit units are either participatory or non-
SEC. 2. Claim for participatory credit units . - Participatory credit units may be claimed for:chanroblesvirtuallawlibrary (a) Attending approved education activities like seminars, conferences, conventions, symposia, in-house education programs, workshops, dialogues or round table discussion. (b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. chan robles virtual law library (c) Teaching in a law school or lecturing in a bar review class. SEC. 3. Claim for non-participatory credit units . - Non-participatory credit units may be claimed per compliance period for:chanroblesvirtuallawlibrary
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(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 education activity in hours to the nearest one-quarter hour reported in decimals.cralaw RULE 7 EXEMPTIONS SECTION 1. Parties exempted from the MCLE. - The following members of the Bar are exempt from the MCLE requirement:chanroblesvirtuallawlibrary (a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executive 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 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 Solicitors 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 Ombudsman and the Special Prosecutor of the Office of the Ombudsman; (i) Heads of government agencies exercising quasi-judicial functions;
(j) Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten (10) years in accredited law schools; chan robles virtual law library (k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy; and (l) Governors and Mayors.
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SEC. 2. Other parties exempted from the MCLE. - The following Members of the Bar are likewise exempt:chanroblesvirtuallawlibrary (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. SEC. 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. SEC. 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.cralaw SEC. 5. Proof of exemption. - Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.cralaw RULE 8 STANDARDS FOR APPROVAL OF EDUCATION ACTIVITIES SECTION 1. Approval of MCLE program. - Subject to the implementing regulations that 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 accredited provider and certifies that the activity meets the criteria of Section 2 of this Rule; and (2) the provider is specifically mandated by law to provide continuing legal education.cralaw SEC. 2. Standards for all education activities. - All continuing legal education activities must meet the following standards:chanroblesvirtuallawlibrary chan robles virtual law library (a) The activity shall have significant current intellectual or practical content.
(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 medicallegal) 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 ACCREDITATION OF PROVIDERS SECTION 1. Accreditation of providers. - Accreditation of providers shall be done by the MCLE Committee.cralaw
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SEC. 2. Requirements for accreditation of providers. - Any person or group may be accredited 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 accredited providers. Application for accreditation shall:chanroblesvirtuallawlibrary (a) (b) Be submitted Contain all on a form provided by the in MCLE the Committee; form;
information
requested
(c) Be accompanied by the appropriate approval fee. SEC. 3. Requirements of all providers. - All approved accredited 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 MCLE COMMITTEE. (b) The provider shall certify that:chanroblesvirtuallawlibrary (1) This activity has been approved BY THE MCLE COMMITTEE 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 MCLE COMMITTEE. (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 activity by THE MCLE COMMITTEE, members of the IBP Board of Governors, or designees of the Committee and IBP Board 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 topic and identity of the instructors. The provider shall make available to each participant a copy of THE MCLE COMMITTEE-approved Education Activity Evaluation Form. (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 MCLE COMMITTEE. chan robles virtual law library (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. SEC. 4. Renewal of provider accreditation . - The accreditation 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.
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SEC. 5. Revocation of provider accreditation . - The accreditation of any provider referred to in Rule 9 may be revoked by a majority vote of the MCLE Committee, after notice and hearing and for good cause.cralaw RULE 10 FEE FOR APPROVAL OF ACTIVITY AND ACCREDITATION OF PROVIDER SECTION 1. Payment of fees. - Application for approval of an education activity or accreditation as a provider requires payment of the appropriate fee as provided in the Schedule of MCLE Fees.cralaw 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 Committee not later than the day after the end of the member's compliance period.cralaw SEC. 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 of Rule 9 should be a 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.cralaw RULE 12 NON-COMPLIANCE PROCEDURES SECTION 1. What constitutes non-compliance. compliance:chanroblesvirtuallawlibrary (a) (b) Failure to complete to the education The following shall constitute non-
requirement of
within
the
compliance or
period;
Failure
provide
attestation
compliance
exemption;
(c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; chan robles virtual law library (d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of non-compliance notice; (e) Failure to pay non-compliance fee within the prescribed period;
(f) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements. SEC. 2. Non-compliance notice and 60-day period to attain compliance. - Members failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given sixty (60) days from the date of notification to file a response clarifying the deficiency or otherwise showing compliance with the requirements. Such notice shall contain the following language near the beginning of the notice in capital letters:chanroblesvirtuallawlibrary
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IF YOU FAIL TO PROVIDE ADEQUATE PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM DATE OF NOTICE), YOU SHALL BE LISTED AS A DELINQUENT MEMBER AND SHALL NOT BE PERMITTED TO PRACTICE LAW UNTIL SUCH TIME AS ADEQUATE PROOF OF COMPLIANCE IS RECEIVED BY THE MCLE COMMITTEE. Members given sixty (60) days to respond to a Non-Compliance Notice may use this period to attain the adequate number of credit units for compliance. Credit units earned during this period may only be counted toward compliance with the prior compliance period requirement unless units in excess of the requirement are earned, in which case the excess may be counted toward meeting the current compliance period requirement. chan robles virtual law library 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.cralaw SEC. 2. Listing as delinquent member. - A member who fails to comply with the requirements after the sixty (60) day period for compliance has expired, shall be listed as a delinquent member of the IBP upon the recommendation of the MCLE Committee. The investigation of a member for non-compliance shall be conducted by the IBP's Commission on Bar Discipline as a fact-finding arm of the MCLE Committee.cralaw SEC. 3. Accrual of membership fee. - Membership fees shall continue to accrue at the active rate against a member during the period he/she is listed as a delinquent member.cralaw
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 units to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit units may not be counted toward meeting the current compliance period requirement. Credit units earned 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. SEC. 2. Termination of delinquent listing is an administrative process . - The termination of listing as a delinquent member is administrative in nature AND it shall be made by the MCLE Committee.cralaw RULE 15 COMMITTEE ON MANDATORY CONTINUING LEGAL EDUCATION 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.cralaw 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.cralaw
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SEC. 2. Duty of committee. - The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval of 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. chan robles virtual law library SEC. 3. Staff of the MCLE Committee. - Subject to approval by the Supreme Court, the MCLE Committee shall employ such staff as may be necessary to perform the record-keeping, auditing, reporting, approval and other necessary functions.cralaw SEC. 4. Submission of annual budget. - The MCLE Committee shall submit to the Supreme Court for approval, an annual budget [for a subsidy] to establish, operate and maintain the MCLE Program. chan robles virtual law library This resolution shall take effect on the fifteenth of September 2000, following its publication in two (2) newspapers of general circulation in the Philippines.cralaw Adopted this 22nd day of August, 2000, as amended on 02 October 2001 .cralaw Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
BAR MATTER NO. 1922, JUNE 3, 2008 B.M. No. 1922 June 3, 2008
RE. NUMBER AND DATE OF MCLE CERTIFICATE OF COMPLETION/EXEMPTION REQUIRED IN ALL PLEADINGS/MOTIONS. Sirs/Mesdames: Quoted hereunder, for your information is a resolution of the Court En Banc dated June 3, 2008 "Bar Matter No. 1922. Re: Recommendation of the Mandatory Continuing Legal Education (MCLE) Board to Indicate in All Pleadings Filed with the Courts the Counsels MCLE Certificate of Compliance or Certificate of Exemption. The Court Resolved to NOTE the Letter, dated May 2, 2008, of Associate Justice Antonio Eduardo B. Nachura, Chairperson, Committee on Legal Education and Bar Matters, informing the Court of the diminishing interest of the members of the Bar in the MCLE requirement program. The Court further Resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to REQUIRE practicing members of the bar to INDICATE in all pleadings filed before the courts or quasijudicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
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The New Rule shall take effect sixty (60) days after its publication in a newspaper of general circulation." Caprio-Morales Velasco, Jr., Nachura, JJ., on official leave. (adv216a) Very truly yours, MA. LUISA D. VILLARAMA(sgd) Clerk of Court
Canon 6
PCGG V. SANDIGANBAYAN, G.R. NO. 151805 (2005) EN BANC [G.R. Nos. 151809-12. April 12, 2005] PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, respondents. DECISION PUNO, J.: This case is prima impressiones and it is weighted with significance for it concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers in government service and on the other, its effect on the right of government to recruit competent counsel to defend its interests. In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. GENBANK had extended considerable financial support to Filcapital Development Corporation causing it to incur daily overdrawings on its current account with the Central Bank.[1] It was later found by the Central Bank that GENBANK had approved various loans to directors, officers, stockholders and related interests totaling P172.3 million, of which 59% was classified as doubtful and P0.505 million as uncollectible.[2] As a bailout, the Central Bank extended emergency loans to GENBANK which reached a total of P310 million.[3] Despite
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the mega loans, GENBANK failed to recover from its financial woes. On March 25, 1977, the Central Bank issued a resolution declaring GENBANK insolvent and unable to resume business with safety to its depositors, creditors and the general public, and ordering its liquidation.[4] A public bidding of GENBANKs assets was held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the winning bid.[5] Subsequently, former Solicitor General Estelito P. Mendoza filed a petition with the then Court of First Instance praying for the assistance and supervision of the court in GENBANKs liquidation as mandated by Section 29 of Republic Act No. 265. In February 1986, the EDSA I revolution toppled the Marcos government. One of the first acts of President Corazon C. Aquino was to establish the Presidential Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of former President Ferdinand Marcos, his family and his cronies. Pursuant to this mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for reversion, reconveyance, restitution, accounting and damages against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second Division of the Sandiganbayan.[6] In connection therewith, the PCGG issued several writs of sequestration on properties allegedly acquired by the above-named persons by taking advantage of their close relationship and influence with former President Marcos. Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition and injunction to nullify, among others, the writs of sequestration issued by the PCGG. [7] After the filing of the parties comments, this Court referred the cases to the Sandiganbayan for proper disposition. These cases were docketed as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel, former Solicitor General Estelito P. Mendoza, who has then resumed his private practice of law. On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos. 0005[8] and 0096-0099.[9] The motions alleged that respondent Mendoza, as then Solicitor General [10] and counsel to Central Bank, actively intervened in the liquidation of GENBANK, which was subsequently acquired by respondents Tan, et al. and became Allied Banking Corporation. Respondent Mendoza allegedly intervened in the acquisition of GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the Central Banks officials on the procedure to bring about GENBANKs liquidation and appeared as counsel for the Central Bank in connection with its petition for assistance in the liquidation of GENBANK which he filed with the Court of First Instance (now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule 6.03 prohibits former government lawyers from accepting engagement or employment in connection with any matter in which he had intervened while in said service. On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case No. 0005.[11] It found that the PCGG failed to prove the
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existence of an inconsistency between respondent Mendozas former function as Solicitor General and his present employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position adverse to that taken on behalf of the Central Bank during his term as Solicitor General. [12] It further ruled that respondent Mendozas appearance as counsel for respondents Tan, et al. was beyond the one-year prohibited period under Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The said section prohibits a former public official or employee from practicing his profession in connection with any matter before the office he used to be with within one year from his resignation, retirement or separation from public office.[13] The PCGG did not seek any reconsideration of the ruling.[14] It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayans Second Division to the Fifth Division.[15] In its resolution dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGGs motion to disqualify respondent Mendoza.[16] It adopted the resolution of its Second Division dated April 22, 1991, and observed that the arguments were the same in substance as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was denied in its resolution dated December 5, 2001.[17] Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure.[18] The PCGG alleged that the Fifth Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of the Code of Professional Responsibility prohibits a former government lawyer from accepting employment in connection with any matter in which he intervened; 2) the prohibition in the Rule is not timebound; 3) that Central Bank could not waive the objection to respondent Mendozas appearance on behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.[19] The petition at bar raises procedural and substantive issues of law. In view, however, of the import and impact of Rule 6.03 of the Code of Professional Responsibility to the legal profession and the government, we shall cut our way and forthwith resolve the substantive issue. I Substantive Issue The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies to respondent Mendoza. Again, the prohibition states: A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in the said service. I.A. The history of Rule 6.03 A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03 of the Code of Professional Responsibility. In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and other parts of Europe. The early statements of standards did not resemble modern codes of conduct. They were not detailed or collected in one source but surprisingly were comprehensive for their time. The principal thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the central duty of truth and fairness in litigation as superior to any obligation to the client. The formulations of the litigation duties were
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at times intricate, including specific pleading standards, an obligation to inform the court of falsehoods and a duty to explore settlement alternatives. Most of the lawyer's other basic duties -- competency, diligence, loyalty, confidentiality, reasonable fees and service to the poor -- originated in the litigation context, but ultimately had broader application to all aspects of a lawyer's practice. The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly from those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural rules to govern attorney behavior. The difference from England was in the pervasiveness and continuity of such regulation. The standards set in England varied over time, but the variation in early America was far greater. The American regulation fluctuated within a single colony and differed from colony to colony. Many regulations had the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the substantive standards. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable fees.[20] The nineteenth century has been termed the dark ages of legal ethics in the United States. By mid-century, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the highly influential New York Field Code, introduced a new set of uniform standards of conduct for lawyers. This concise statement of eight statutory duties became law in several states in the second half of the nineteenth century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other lawyers were working to flesh out the broad outline of a lawyer's duties. These reformers wrote about legal ethics in unprecedented detail and thus brought a new level of understanding to a lawyer's duties. A number of mid-nineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of colonial regulations e.g., the do no falsehood oath and the deceit prohibitions -- persisted in some states. Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior. The developing law of agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law started to recognize with less equivocation the attorney-client privilege and its underlying theory of confidentiality. Thus, all of the core duties, with the likely exception of service to the poor, had some basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these standards were isolated and did not provide a comprehensive statement of a lawyer's duties. The reformers, by contrast, were more comprehensive in their discussion of a lawyer's duties, and they actually ushered a new era in American legal ethics. [21] Toward the end of the nineteenth century , a new form of ethical standards began to guide lawyers in their practice the bar association code of legal ethics. The bar codes were detailed ethical standards formulated by lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth century. Like the academic discourses, the bar association codes gave detail to the statutory statements of duty and the oaths of office. Unlike the academic lectures, however, the bar association codes retained some of the official imprimatur of the statutes and oaths. Over time, the bar association codes became extremely popular that states adopted them as binding rules of law. Critical to the development of the new codes was the re-emergence of bar associations themselves. Local bar associations formed sporadically during the colonial period, but they disbanded by the early nineteenth century. In the late nineteenth century, bar associations began to form again, picking up where their colonial predecessors had left off. Many of the new bar associations, most notably the Alabama State Bar Association and the American Bar Association, assumed on the task of drafting substantive standards of conduct for their members.[22] In 1887, Alabama became the first state with a comprehensive bar association code of ethics. The 1887 Alabama Code of Ethics was the model for several states codes, and it was the foundation f or the American Bar Association's (ABA) 1908 Canons of Ethics.[23]
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In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics. [24] As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the revolving door or the process by which lawyers and others temporarily ent er government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service. [25] These concerns were classified as adverseinterest conflicts and congruent-interest conflicts. Adverse-interest conflicts exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse.[26] On the other hand, congruent-interest representation conflicts are unique to government lawyers and apply primarily to former government lawyers.[27] For several years, the ABA attempted to correct and update the canons through new canons, individual amendments and interpretative opinions. In 1928, the ABA amended one canon and added thirteen new canons.[28] To deal with problems peculiar to former government lawyers, Canon 36 was minted which disqualified them both for adverse -interest conflicts and congruent-interest representation conflicts.[29] The rationale for disqualification is rooted in a concern that the government lawyers largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients.[30] Canon 36 provides, viz.: 36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity. A lawyer, having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ. Over the next thirty years, the ABA continued to amend many of the canons and added Canons 46 and 47 in 1933 and 1937, respectively.[31] In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA Canons of Professional Ethics.[32] By the middle of the twentieth century , there was growing consensus that the ABA Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for the creation of a committee to study the adequacy and effectiveness of the ABA Canons. The committee recommended that the canons needed substantial revision, in part because the ABA Canons failed to distinguish between the inspirational and the proscriptive and were thus unsuccessful in enforcement. The legal profession in the United States likewise observed that Canon 36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification of lawyers for negligible participation in matters during their employment with the government. The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of Professional Responsibility.[33] The basic ethical principles in the Code of Professional Responsibility were supplemented by Disciplinary Rules that defined minimum rules of conduct to which the lawyer must adhere.[34] In the case of Canon 9, DR 9-101(b)[35] became the applicable supplementary norm. The drafting committee reformulated
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the canons into the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of Delegates approved the Model Code.[36] Despite these amendments, legal practitioners remained unsatisfied with the results and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of Professional Responsibility . The Model Rules used the restatement format, where the conduct standards were set-out in rules, with comments following each rule. The new format was intended to give better guidance and clarity for enforcement because the only enforceable standards were the black letter Rules. The Model Rules eliminated the broad canons altogether and reduced the emphasis on narrative discussion, by placing comments after the rules and limiting comment discussion to the content of the black letter rules. The Model Rules made a number of substantive improvements particularly with regard to conflicts of interests.[37] In particular, the ABA did away with Canon 9, citing the hopeless dependence of the concept of impropriety on the subjective views of anxious clients as well as the norms indefinite nature.[38] In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code of Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21, 1988, this Court promulgated the Code of Professional Responsibility .[39] Rule 6.03 of the Code of Professional Responsibility deals particularly with former government lawyers, and provides, viz.: Rule 6.03 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. Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive phrase investigated and passed upon with the word intervened. It is, therefore, properly applicable to both adverse-interest conflicts and congruentinterest conflicts. The case at bar does not involve the adverse interest aspect of Rule 6.03. Respondent Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before the Sandiganbayan. Nonetheless, there remains the issue of whether there exists a congruent-interest conflict sufficient to disqualify respondent Mendoza from representing respondents Tan, et al. I.B. The congruent interest aspect of Rule 6.03 The key to unlock Rule 6.03 lies in comprehending first, the meaning of matter referred to in the rule and, second, the metes and bounds of the intervention made by the former government lawyer on the matter. The American Bar Association in its Formal Opinion 342, defined matter as any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. Firstly, it is critical that we pinpoint the matter which was the subject of intervention by respondent Mendoza while he was the Solicitor General. The PCGG relates the following acts of respondent Mendoza as constituting the matter where he intervened as a Solicitor General, viz:[40]
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The PCGGs Case for Atty. Mendozas Disqualification The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in the closure of GENBANK by advising the Central Bank on how to proceed with the said banks liquidation and even filing the petition for its liquidation with the CFI of Manila. As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain key officials of the Central Bank, namely, then Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a conference with the Solicitor General (Atty. Mendoza), who advised them on how to proceed with the liquidation of GENBANK. The pertinent portion of the said memorandum states: Immediately after said meeting, we had a conference with the Solicitor General and he advised that the following procedure should be taken: 1. Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank can not be reorganized or placed in a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public. 2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate the manner of its liquidation and approve a liquidation plan. 3. The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the bank and the liquidation plan approved by the Monetary Board. 4. The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which had been taken and praying the assistance of the Court in the liquidation of Genbank. The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where it was shown that Atty. Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid him in filing with the court the petition for assistance in the banks liquidation. The pertinent portion of the said minutes reads: The Board decided as follows: ... E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum of the Director, Department of Commercial and Savings Bank dated March 29, 1977, together with copies of:
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1.
Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary Board, dated March 25, 1977, containing a report on the current situation of Genbank; Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977; Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended by P.D. No. 1007, a repot on the state of insolvency of Genbank, together with its attachments; and Such other documents as may be necessary or needed by the Solicitor General for his use in then CFI-praying the assistance of the Court in the liquidation of Genbank.
2.
3.
4.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as Solicitor General involved in the case at bar is advising the Central Bank, on how to proceed with the said banks liquidation and even filing the petition for its liquidation with the CFI of Manila. In fine, the Court should resolve whether his act of advising the Central Bank on the legal procedure to liquidate GENBANK is included within the concept of matter under Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section 29, viz: The provision reads in part: SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the appropriate supervising or examining department or his examiners or agents into the condition of any bank or non-bank financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the facts, and the Board may, upon finding the statements of the department head to be true, forbid the institution to do business in the Philippines and shall designate an official of the Central Bank or a person of recognized competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as expeditiously as possible collect and gather all the assets and administer the same for the benefit of its creditors, exercising all the powers necessary for these purposes including, but not limited to, bringing suits and foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking functions. ... If the Monetary Board shall determine and confirm within the said period that the bank or nonbank financial intermediary performing quasi-banking functions is insolvent or cannot resume business with safety to its depositors, creditors and the general public, it shall, if the public interest requires, order its liquidation, indicate the manner of its liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor General, file a petition in the Court of First Instance reciting the proceedings which have been taken and praying the assistance of the court in the liquidation of such institution. The court shall have jurisdiction in the same proceedings to adjudicate disputed claims against the bank or non-bank financial intermediary performing quasi-banking functions and enforce
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individual liabilities of the stockholders and do all that is necessary to preserve the assets of such institution and to implement the liquidation plan approved by the Monetary Board. The Monetary Board shall designate an official of the Central Bank, or a person of recognized competence in banking or finance, as liquidator who shall take over the functions of the receiver previously appointed by the Monetary Board under this Section. The liquidator shall, with all convenient speed, convert the assets of the banking institution or non-bank financial intermediary performing quasi-banking functions to money or sell, assign or otherwise dispose of the same to creditors and other parties for the purpose of paying the debts of such institution and he may, in the name of the bank or non-bank financial intermediary performing quasi-banking functions, institute such actions as may be necessary in the appropriate court to collect and recover accounts and assets of such institution. The provisions of any law to the contrary notwithstanding, the actions of the Monetary Board under this Section and the second paragraph of Section 34 of this Act shall be final and executory, and can be set aside by the court only if there is convincing proof that the action is plainly arbitrary and made in bad faith. No restraining order or injunction shall be issued by the court enjoining the Central Bank from implementing its actions under this Section and the second paragraph of Section 34 of this Act, unless there is convincing proof that the action of the Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with the clerk or judge of the court in which the action is pending a bond executed in favor of the Central Bank, in an amount to be fixed by the court. The restraining order or injunction shall be refused or, if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank cashier(s) check, in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will pay the damages which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions of this Section shall govern the issuance and dissolution of the restraining order or injunction contemplated in this Section. Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank financial intermediary performing quasi-banking functions to pay its liabilities as they fall due in the usual and ordinary course of business. Provided, however, That this shall not include the inability to pay of an otherwise non-insolvent bank or non-bank financial intermediary performing quasi-banking functions caused by extraordinary demands induced by financial panic commonly evidenced by a run on the bank or non-bank financial intermediary performing quasi-banking functions in the banking or financial community. The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver under this Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to the contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981) We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the matter contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law are acts which do not fall within the scope of the term matter and cannot disqualify. Secondly, it can even be conceded for the sake of argument that the above act of respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent
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Mendoza which is the matter involved in Sp. Proc. No. 107812 is entirely different from the matter involved in Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in the sale of GENBANK to Allied Bank. The matter where he got himself involved was in informing Central Bank on the procedure provided by law to liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject matter of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different from the subject matter in Civil Case No. 0096 . Civil Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the alleged banking malpractices of its owners and officers. In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096. Thirdly, we now slide to the metes and bounds of the intervention contemplated by Rule 6.03. Intervene means, viz.: 1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or come in between points of time or events . . . 3: to come in or between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two things (Paris, where the same city lay on both sides of an intervening river . . .)[41] On the other hand, intervention is defined as: 1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the interests of others.[42] There are, therefore, two possible interpretations of the word intervene. Under the first interpretation, intervene includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence.[43] Under the second interpretation, intervene only includes an act of a person who has the power to influence the subject proceedings.[44] We hold that this second meaning is more appropriate to give to the word intervention under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do not exist where the government lawyer does an act which can be considered as innocuous such as x x x drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a former government lawyer should not, after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ. As aforediscussed, the broad sweep of the phrase which he has investigated or passed upon resulted in unjust disqualification of former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in which the lawyer, while in the government service, had substantial responsibility. The 1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that a lawyer shall not
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represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant and substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is arid as to the actual participation of respondent Mendoza in the subsequent proceedings. Indeed, the case was in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover, we note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The principal role of the court in this type of proceedings is to assist the Central Bank in determining claims of creditors against the GENBANK. The role of the court is not strictly as a court of justice but as an agent to assist the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the Office of the Solicitor General is not that of the usual court litigator protecting the interest of government. II Balancing Policy Considerations To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in the United States is still fine tuning its DR 9-101(b) rule. In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took account of various policy considerations to assure that its interpretation and application to the case at bar will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not interpreted to cause a chilling effect on government recruitment of able legal talent . At present, it is already difficult for government to match compensation offered by the private sector and it is unlikely that government will be able to reverse that situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice. [45] Rightly, Judge Kaufman warned that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified. [46] Indeed, to make government service more difficult to exit can only make it less appealing to enter.[47] In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation. The danger that the rule will be misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has noted the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the opposing party of counsel of its choice, and harass and embarrass the opponent, and observed that the tactic was so prevalent in large civil cases in recent years as to prompt frequent judicial and acade mic commentary.[48] Even the United States Supreme Court found no quarrel with the Court of Appeals description of disqualification motions as a dangerous game.[49] In the case at bar, the new attempt to disqualify respondent Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead issue. It was resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar was filed more than four years after the filing of the petitions for certiorari, prohibition and injunction with the
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Supreme Court which were subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos. 0096-0099.[50] At the very least, the circumstances under which the motion to disqualify in the case at bar were refiled put petitioners motive as highly suspect. Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its misapplication. It cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence.[51] The client with a disqualified lawyer must start again often without the benefit of the work done by the latter.[52] The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it can result in denial of due process. The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service . According to Prof. Morgan: An individual who has the security of knowing he or she can find private employment upon leaving the government is free to work vigorously, challenge official positions when he or she believes them to be in error, and resist illegal demands by superiors. An employee who lacks this assurance of private employment does not enjoy such freedom. [53] He adds: Any system that affects the right to take a new job affects the ability to quit the old job and any limit on the ability to quit inhibits official independence.[54] The case at bar involves the position of Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor General should be endowed with a great degree of independence . It is this independence that allows the Solicitor General to recommend acquittal of the innocent; it is this independence that gives him the right to refuse to defend officials who violate the trust of their office. Any undue dimunition of the independence of the Solicitor General will have a corrosive effect on the rule of law. No less significant a consideration is the deprivation of the former government lawyer of the freedom to exercise his profession. Given the current state of our law, the disqualification of a former government lawyer may extend to all members of his law firm.[55] Former government lawyers stand in danger of becoming the lepers of the legal profession. It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of Professional Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best [56] which can lead to untoward results.[57] No less than Judge Kaufman doubts that the lessening of restrictions as to former government attorneys will have any detrimental effect on that free flow of information between the government-client and its attorneys which the canons seek to protect.[58] Notably, the appearance of impropriety theory has been rejected in the 1983 ABA Model Rules of Professional Conduct [59] and some courts have abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the public.[60] It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers who switch sides. It is claimed that switching sides carrie s the danger that former government employee may compromise confidential official information in the process. But this concern does not cast a shadow in the case at bar. As afore-discussed, the act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate GENBANK is a different matter from the subject matter of Civil Case No. 0005 which is about the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that confidential official information might be divulged is nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered about in the case at bar. For there is no question that in lawyering for
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respondents Tan, et al., respondent Mendoza is not working against the interest of Central Bank. On the contrary, he is indirectly defending the validity of the action of Central Bank in liquidating GENBANK and selling it later to Allied Bank. Their interests coincide instead of colliding . It is for this reason that Central Bank offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no switching of sides for no two sides are involved. It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of loyalties, i.e., that a government employee might be subject to a conflict of loyalties while still in government service. [61] The example given by the proponents of this argument is that a lawyer who plans to work for the company that he or she is currently charged with prosecuting might be tempted to prosecute less vigorously. [62] In the cautionary words of the Association of the Bar Committee in 1960: The greatest public risks arising from post employment conduct may well occur during the period of employment through the dampening of aggressive administration of government policies.[63] Prof. Morgan, however, considers this concern as probably excessive.[64] He opines x x x it is hard to imagine that a private firm would feel secure hiding someone who had just been disloyal to his or her last client the government. Interviews with lawyers consistently confirm that law firms want the best government lawyers the ones who were hardest to beat not the least qualified or least vigorous advocates.[65] But again, this particular concern is a non factor in the case at bar . There is no charge against respondent Mendoza that he advised Central Bank on how to liquidate GENBANK with an eye in later defending respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank and respondents Tan, et al. in the above cases. Likewise, the Court is nudged to consider the need to curtail what is perceived as the excessive influence of former officials or their clout.[66] Prof. Morgan again warns against extending this concern too far. He explains the rationale for his warning, viz: Much of what appears to be an employees influence may actually be the power or authority of his or her position, power that evaporates quickly upon departure from government x x x.[67] More, he contends that the concern can be demeaning to those sitting in government. To quote him further: x x x The idea that, present officials make significant decisions based on friendship rather than on the merit says more about the present officials than about their former co-worker friends. It implies a lack of will or talent, or both, in federal officials that does not seem justified or intended, and it ignores the possibility that the officials will tend to disfavor their friends in order to avoid even the appearance of favoritism. [68] III The question of fairness Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest prong of Rule 6.03 of the Code of Professional Responsibility should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made after the lapse of time whose length cannot, by any standard, qualify as reasonable. At bottom, the point they make relates to the unfairness of the rule if applied without any prescriptive period and retroactively, at that. Their concern is legitimate and deserves to be initially addressed by the IBP and our Committee on Revision of the Rules of Court. IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
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No cost. SO ORDERED. Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona and Garcia, JJ., concur. Panganiban and Tinga, JJ., Please see separate opinion. Carpio-Morales and Callejo, Sr., JJ., Please see dissenting opinion. Azcuna, J., I was former PCGG Chair. Chico-Nazario, J., No part.
Canon 7
RULE 139-A, RULES OF COURT RULE 139-A Integrated Bar of the Philippines Section 1. Organization. There is hereby organized an official national body to be known as the "Integrated Bar of the Philippines," composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court. Section 2. Purposes. The fundamental purposes of the Integrated Bar shall be to elevate the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively. Section 3. Regions. The Philippines is hereby divided into nine Regions of the Integrated Bar, to wit: (a) Northern Luzon, consisting of the provinces of Abra, Batanes, Benguet, Cagayan, Ifugao, Ilocos Norte, Ilocos Sur, Isabela, Kalinga-Apayao, La Union, Mountain Province, Nueva Vizcaya, and Quirino. (b) Central Luzon, consisting of the provinces of Bataan, Bulacan, Nueva Ecija, Pampanga, Pangasinan, Tarlac, and Zambales; (c) Greater Manila, consisting of the City of Manila and Quezon City; (d) Southern Luzon, consisting of the provinces of Batangas, Cavite, Laguna, Marinduque, Occidental Mindoro, Oriental Mindoro, Quezon, and Rizal;
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(e) Bicolandia, consisting of the provinces of Albay, Camarines Norte, Camarines Sur, Catanduanes, Masbate, and Sorsogon; (f) Eastern Visayas, consisting of the provinces of Bohol, Cebu, Eastern Samar, Leyte, Northern Samar, Samar, and Southern Leyte; (g) Western Visayas, consisting of the provinces of Aklan, Antique, Capiz, Iloilo, Negros Occidental, Negros Oriental, Palawan, Romblon, and Siquijor. (h) Eastern Mindanao, consisting of the provinces of Agusan del Norte, Agusan Del Sur, Bukidnon, Camiguin, Davao del Norte, Davao del Sur, Davao Oriental, Misamis Oriental, Surigao del Norte, and Surigao del Sur; and (i) Western Mindanao, consisting of the cities of Basilan and Zamboanga, and the provinces of Cotabato, Lanao del Norte, Lanao del Sur, Misamis Occidental, South Cotabato, Sulu, Zamboanga del Norte, and Zamboanga del Sur. In the event of the creation of any new province, the Board of Governors shall, with the approval of the Supreme Court, determine the Region to which the said province shall belong. Section 4. Chapters. A Chapter of the Integrated Bar shall be organized in every province. Except as hereinbelow provided, every city shall be considered part of the province within which it is geographically situated. A separate Chapter shall be organized in each of the following political subdivisions or areas; (a) The sub-province of Aurora; (b) Each congressional district of the City of Manila; (c) Quezon City; (d) Caloocan City, Malabon and Navotas; (e) Pasay City, Makati, Mandaluyong and San Juan del Monte; (f) Cebu City; and (g) Zamboanga City and Basilan City. Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political subdivision or area where his office, or, in the absence thereof, his residence is located. In no case shall any lawyer be a member of more than one Chapter. Each Chapter shall have its own local government as provided for by uniform rules to be prescribed by the Board of Governors and approved by the Supreme Court, the provisions of Section 19 of this Rule notwithstanding.
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Chapters belonging to the same Region may hold regional conventions on matters and problems of common concern. Section 5. House of Delegates. The Integrated Bar shall have a House of Delegates of not more than one hundred twenty members who shall be apportioned among all the Chapters as nearly as may be according to the number of their respective members, but each Chapter shall have at least one Delegate. On or before December 31, 1974, and every four years thereafter, the Board of Governors shall make an apportionment of Delegates. The term of the office of Delegate shall begin on the date of the opening of the annual convention of the House and shall end on the day immediately preceding the date of the opening of the next succeeding annual convention. No person may be a Delegate for more than two terms. The House shall hold an annual convention at the call of the Board of Governors at any time during the month of April of each year for the election of Governor, the reading and discussion of reports including the annual report of the Board of Governors, the transaction of such other business as may be referred to it by the Board, and the consideration of such additional matters as may be requested in writing by at least twenty Delegates. Special conventions of the House may be called by the Board of Governors to consider only such matters as the Board shall indicate. A majority of the Delegates who have registered for a convention, whether annual or special, shall constitute a quorum to do business. Section 6. Board of Governors. The Integrated Bar shall be governed by a Board of Governors. Nine Governors shall be elected by the House of Delegates from the nine Regions on the representation basis of one Governor from each Region. Each Governor shall be chosen from a list of nominees submitted by the Delegates from the Region, provided that not more than one nominee shall come from any Chapter. The President and the Executive Vice President, if chosen by the Governors from outside of themselves as provided in Section 7 of this Rule, shall ipso facto become members of the Board. The members of the Board shall hold office for a term of one year from the date of their election and until their successors shall have been duly elected and qualified. No person may be a Governor for more than two terms. The Board shall meet regularly once every three months, on such date and such time and place as it shall designate. A majority of all the members of the Board shall constitute a quorum to do business. Special meetings may be called by the President or by five members of the Board. Subject to the approval of the Supreme Court, the Board shall adopt By-Laws and promulgate Canons of Professional Responsibility for all members of the Integrated Bar. The By-Laws and the Canons may be amended by the Supreme Court motu propio or upon the recommendation of the Board of Governors. The Board shall prescribe such other rules and regulations as may be necessary and proper to carry out the purposes of the Integrated Bar as well as the provisions of this Rule. Section 7. Officers. The Integrated Bar shall have a President and an Executive Vice President who shall be chosen by the Governors immediately after the latter's election, either from among themselves or from other members of the Integrated Bar, by the vote of at least five Governors. Each of the regional members of the Board shall be ex officio Vice President for the Region which he represents. The President and the Executive Vice President shall hold office for a term of one year from the date of their election and until their successors shall have duly qualified. The Executive Vice President shall automatically
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become the President for the next succeeding full term. The Presidency shall rotate from year to year among all the nine Regions in such order or rotation as the Board of Governors shall prescribe. No person shall be President or Executive Vice President of the Integrated Bar for more than one term. The Integrated Bar shall have a Secretary, a Treasurer, and such other officers and employees as may be required by the Board of Governors, to be appointed by the President with the consent of the Board, and to hold office at the pleasure of the Board or for such terms as it may fix. Said officers and employees need not be members of the Integrated Bar. Section 8. Vacancies. In the event the President is absent or unable to act, his duties shall be performed by the Executive Vice President; and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President during the remainder of the term of the office thus vacated. In the event of the death, resignation, removal, or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office until the next succeeding election or during the period of disability. The filling of vacancies in the House of Delegates, Board of Governors, and all other positions of Officers of the Integrated Bar shall be as provided in the By-Laws. Whenever the term of an office or position is for a fixed period, the person chosen to fill a vacancy therein shall serve only for the unexpired term. Section 9. Membership dues. Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collection from each Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof. Section 10. Effect of non-payment of dues. Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. Section 11. Voluntary termination of membership; re-instatement. A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys. Reinstatement may be made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court. Section 12. Grievance procedures. The Board of Governors shall provide in the By-Laws for grievance procedures for the enforcement and maintenance of discipline among all the members of the Integrated Bar, but no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective without the final approval of the Supreme Court. Section 13. Non-political Bar. The Integrated Bar shall be strictly non-political, and every activity tending to impair this basic feature is strictly prohibited and shall be penalized accordingly. No lawyer holding an elective, judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election of appointment to any position in the Integrated Bar or any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof.
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Section 14. Positions honorary. Except as may be specifically authorized or allowed by the Supreme Court, no Delegate or Governor and no national or local Officer or committee member shall receive any compensation, allowance or emolument from the funds of the Integrated Bar for any service rendered therein or be entitled to reimbursement for any expense incurred in the discharge of his functions. Section 15. Fiscal matters. The Board of Governors shall administer the funds of the Integrated Bar and shall have the power to make appropriations and disbursements therefrom. It shall cause proper Books of Accounts to be kept and Financial Statements to be rendered and shall see to it that the proper audit is made of all accounts of the Integrated Bar and all the Chapters thereof. Section 16. Journal. The Board of Governors shall cause to be published a quarterly Journal of the Integrated Bar, free copies of which shall be distributed to every member of the Integrated Bar. Section 17. Voluntary Bar associations. All voluntary Bar associations now existing or which may hereafter be formed may co-exist with the Integrated Bar but shall not operate at cross-purposes therewith. Section 18. Amendments. This Rule may be amended by the Supreme Court motu propio or upon the recommendation of the Board of Governors or any Chapter of the Integrated Bar. Section 19. Organizational period. The Commission on Bar Integration shall organize the local Chapters and toward this end shall secure the assistance of the Department of Justice and of all Judges throughout the Philippines. All Chapter organizational meetings shall be held on Saturday, February 17, 1973. In every case, the Commission shall cause proper notice of the date, time and place of the meeting called to organize a Chapter shall constitute a quorum for the purpose, including the election of a President, a Vice President, a Secretary, a Treasurer, and five Directors. The Commission shall initially fix the number of Delegates and apportion the same among all the Chapters as nearly as may be in proportion to the number of their respective members, but each Chapter shall have at least one Delegate. The President of each Chapter shall concurrently be its Delegate to the House of Delegates. The Vice President shall be his alternate, except where the Chapter is entitled to have more than one Delegate, in which case the Vice President shall also be a Delegate. The Board of Directors of the Chapter shall in proper cases elect additional as well as alternate Delegates. The House of Delegates shall convene in the City of Manila on Saturday, March 17, 1973 for the Purpose of electing a Board of Governors. The Governors shall immediately assume office and forthwith meet to elect the Officers of the Integrated Bar. The Officers so chosen shall immediately assume their respective positions. Section 20. Effectivity. This Rule shall take effect on January 16, 1973.
IN RE: EDILLON, 84 SCRA 554 EN BANC A.M. No. 1928 August 3, 1978
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In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP Administrative Case No. MDD-1) RESOLUTION
CASTRO, C.J.: The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines. On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership dues" to the IBP since the latter's constitution notwithstanding due notice. On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III of the ByLaws of the IBP, which reads:
.... Should the delinquency further continue until the following June 29, the Board shall promptly inquire into the cause or causes of the continued delinquency and take whatever action it shall deem appropriate, including a recommendation to the Supreme Court for the removal of the delinquent member's name from the Roll of Attorneys. Notice of the action taken shall be sent by registered mail to the member and to the Secretary of the Chapter concerned.
On January 27, 1976, the Court required the respondent to comment on the resolution and letter adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay the membership fees due from him. On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to Edillon's comment: on March 24, 1976, they submitted a joint reply. Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were required to submit memoranda in amplification of their oral arguments. The matter was thenceforth submitted for resolution. At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety and necessity of the integration of the Bar of the Philippines are in essence conceded. The respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as the Court Rule) 1 in accordance with which the Bar of the Philippines was integrated and to the provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited). The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in Section 10 of the Court Rule, which reads:
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SEC. 10. Effect of non-payment of dues. Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the Court Rule:
SECTION 1. Organization. There is hereby organized an official national body to be known as the 'Integrated Bar of the Philippines,' composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court.
The obligation to pay membership dues is couched in the following words of the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. ...
The core of the respondent's arguments is that the above provisions constitute an invasion of his constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues, and that as a consequence of this compelled financial support of the said organization to which he is admittedly personally antagonistic, he is being deprived of the rights to liberty and property guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of the Court Rule and of the IBP By-Laws are void and of no legal force and effect. The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but is rather of an "administrative nature pertaining to an administrative body." The case at bar is not the first one that has reached the Court relating to constitutional issues that inevitably and inextricably come up to the surface whenever attempts are made to regulate the practice of law, define the conditions of such practice, or revoke the license granted for the exercise of the legal profession. The matters here complained of are the very same issues raised in a previous case before the Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines, promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study of all the arguments adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data contained in the exhaustive Report of the Commission on Bar Integration, that the integration of the Philippine Bar is 'perfectly constitutional and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court. An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished from bar associations organized by individual lawyers themselves, membership in which is voluntary. Integration of the Bar is essentially a process by which every member of the Bar is afforded an
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opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an official national body of which all lawyers are required to be members. They are, therefore, subject to all the rules prescribed for the governance of the Bar, including the requirement of payment of a reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a code of professional ethics or professional responsibility breach of which constitutes sufficient reason for investigation by the Bar and, upon proper cause appearing, a recommendation for discipline or disbarment of the offending member. 2 The integration of the Philippine Bar was obviously dictated by overriding considerations of public interest and public welfare to such an extent as more than constitutionally and legally justifies the restrictions that integration imposes upon the personal interests and personal convenience of individual lawyers. 3 Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have been uniformly and universally sustained as a valid exercise of the police power over an important profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with public interest because a lawyer owes substantial duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation, and takes part in one of the most important functions of the State the administration of justice as an officer of the court. 4 The practice of law being clothed with public interest, the holder of this privilege must submit to a degree of control for the common good, to the extent of the interest he has created. As the U. S. Supreme Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502). When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to "adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973, and the President of the Philippines in decreeing the constitution of the IBP into a body corporate through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental considerations of public welfare and motivated by a desire to meet the demands of pressing public necessity. The State, in order to promote the general welfare, may interfere with and regulate personal liberty, property and occupations. Persons and property may be subjected to restraints and burdens in order to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To this fundamental principle of government the rights of individuals are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the State to restrain some individuals from all freedom, and all individuals from some freedom. But the most compelling argument sustaining the constitutionality and validity of Bar integration in the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5 (5) of Article X of the 1973 Constitution of the Philippines, which reads:
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Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts, and the admission to the practice of law and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:

SECTION 1. Within two years from the approval of this Act, the Supreme Court may adopt rules of Court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No. 6397), and looking solely to the language of the provision of the Constitution granting the Supreme Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law," it at once becomes indubitable that this constitutional declaration vests the Supreme Court with plenary power in all cases regarding the admission to and supervision of the practice of law. Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his exercise of the said profession, which affect the society at large, were (and are) subject to the power of the body politic to require him to conform to such regulations as might be established by the proper authorities for the common good, even to the extent of interfering with some of his liberties. If he did not wish to submit himself to such reasonable interference and regulation, he should not have clothed the public with an interest in his concerns. On this score alone, the case for the respondent must already fall. The issues being of constitutional dimension, however, we now concisely deal with them seriatim. 1. The first objection posed by the respondent is that the Court is without power to compel him to become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is unconstitutional for it impinges on his constitutional right of freedom to associate (and not to associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative of his constitutional freedom to associate. 6 Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. 7 All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is a ready a member. 8 Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The only compulsion to which he is subjected is the payment of annual dues. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional legal services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program the lawyers. 9
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Assuming that the questioned provision does in a sense compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10 2. The second issue posed by the respondent is that the provision of the Court Rule requiring payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court, under its constitutional power and duty to promulgate rules concerning the admission to the practice of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) which power the respondent acknowledges from requiring members of a privileged class, such as lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure, designed to raise funds for carrying out the objectives and purposes of integration. 11 3. The respondent further argues that the enforcement of the penalty provisions would amount to a deprivation of property without due process and hence infringes on one of his constitutional rights. Whether the practice of law is a property right, in the sense of its being one that entitles the holder of a license to practice a profession, we do not here pause to consider at length, as it clear that under the police power of the State, and under the necessary powers granted to the Court to perpetuate its existence, the respondent's right to practise law before the courts of this country should be and is a matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure is recognize, then a penalty designed to enforce its payment, which penalty may be avoided altogether by payment, is not void as unreasonable or arbitrary. 12 But we must here emphasize that the practice of law is not a property right but a mere privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance with the lawyer's public responsibilities. 4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension, disbarment and reinstatement of lawyers and their regulation and supervision have been and are indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding such are legion. 14 In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court appropriate, indeed necessary, to the proper administration of justice ... the argument that this is an arbitrary power which the court is arrogating to itself or accepting from the legislative likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. ..." The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
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fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in the Court. We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal. WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from the Roll of Attorneys of the Court. Fernando, Teehankee, Barredo, Makasiar, Antonio, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
SANTOS V. LLAMAS, A.C. NO. 4749, JAN. 20, 2000
SECOND DIVISION
[A.C No. 4749. January 20, 2000]
SOLIMAN M. SANTOS, JR., complainant, vs. ATTY. FRANCISCO R. LLAMAS, respondent. DECISION
MENDOZA, J.: This is a complaint for misrepresentation and non-payment of bar membership dues filed against respondent Atty. Francisco R. Llamas. In a letter-complaint to this Court dated February 8, 1997, complainant Soliman M. Santos, Jr., himself a member of the bar, alleged that: On my oath as an attorney, I wish to bring to your attention and appropriate sanction the matter of Atty. Francisco R. Llamas who, for a number of years now, has not indicated the proper PTR and IBP O.R. Nos. and data (date & place of issuance) in his pleadings. If at all, he only indicates "IBP Rizal 259060" but he has been using this for at least three years already, as shown by the following attached sample pleadings in various courts in 1995, 1996 and 1997: (originals available) Annex "Ex-Parte Manifestation and Submission" dated A December 1, 1995 in Civil Case No. Q-95-25253, RTC, .......- Br. 224, QC
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Annex "Urgent Ex-Parte Manifestation Motion" dated November B 13, 1996 in Sp. Proc. No. 95-030, RTC Br. 259 (not 257), .......- Paraaque, MM Annex "An Urgent and Respectful Plea for extension of Time to C File Required Comment and Opposition" dated January .......- 17, 1997 in CA-G.R. SP (not Civil Case) No. 42286, CA 6th Div. This matter is being brought in the context of Rule 138, Section 1 which qualifies that only a duly admitted member of the bar "who is in good and regular standing, is entitled to practice law". There is also Rule 139-A, Section 10 which provides that "default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys." Among others, I seek clarification (e.g. a certification) and appropriate action on the bar standing of Atty. Francisco R. Llamas both with the Bar Confidant and with the IBP, especially its Rizal Chapter of which Atty. Llamas purports to be a member. Jksm Please note that while Atty. Llamas indicates "IBP Rizal 259060" sometimes, he does not indicate any PTR for payment of professional tax. Under the Rules, particularly Rule 138, Sections 27 and 28, suspension of an attorney may be done not only by the Supreme Court but also by the Court of Appeals or a Regional Trial Court (thus, we are also copy furnishing some of these courts). Finally, it is relevant to note the track record of Atty. Francisco R. Llamas, as shown by: 1........his dismissal as Pasay City Judge per Supreme Court Admin. Matter No. 1037-CJ En Banc Decision on October 28, 1981 ( in SCRA ) 2........his conviction for estafa per Decision dated June 30, 1994 in Crim. Case No. 11787, RTC Br. 66, Makati, MM (see attached copy of the Order dated February 14, 1995 denying the motion for reconsideration of the conviction which is purportedly on appeal in the Court of Appeals). Attached to the letter-complaint were the pleadings dated December 1, 1995, November 13, 1996, and January 17, 1997 referred to by complainant, bearing, at the end thereof, what appears to be respondents signature above his name, address and the receipt number "IBP Rizal 259060."i[1] Also attached was a copy of the order,i[2] dated February 14, 1995, issued by Judge Eriberto U. Rosario, Jr. of the Regional Trial Court, Branch 66, Makati, denying respondents motion for reconsideration of his conviction, in Criminal Case No. 11787, for violation of Art. 316, par. 2 of the Revised Penal Code. On April 18, 1997, complainant filed a certificationi[3] dated March 18, 1997, by the then president of the Integrated Bar of the Philippines, Atty. Ida R. Macalinao-Javier, that respondents "last payment of his IBP dues was in 1991. Since then he has not paid or remitted any amount to cover his membership fees up to the present."
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On July 7, 1997, respondent was required to comment on the complaint within ten days from receipt of notice, after which the case was referred to the IBP for investigation, report and recommendation. In his commentmemorandum,i[4] dated June 3, 1998, respondent alleged:i[5] 3. That with respect to the complainants absurd claim that for using in 1995, 1996 and 1997 the same O.R. No. 259060 of the Rizal IBP, respondent is automatically no longer a member in good standing. Precisely, as cited under the context of Rule 138, only an admitted member of the bar who is in good standing is entitled to practice law. The complainants basis in claiming that the un dersigned was no longer in good standing, were as above cited, the October 28, 1981 Supreme Court decision of dismissal and the February 14, 1995 conviction for Violation of Article 316 RPC, concealment of encumbrances. Chief As above pointed out also, the Supreme Court dismissal decision was set aside and reversed and respondent was even promoted from City Judge of Pasay City to Regional Trial Court Judge of Makati, Br. 150. Also as pointed out, the February 14, 1995 decision in Crim. Case No. 11787 was appealed to the Court of Appeals and is still pending. Complainant need not even file this complaint if indeed the decision of dismissal as a Judge was never set aside and reversed, and also had the decision of conviction for a light felony, been affirmed by the Court of Appeals. Undersigned himself would surrender his right or privilege to practice law. 4. That complainant capitalizes on the fact that respondent had been delinquent in his dues. Undersigned since 1992 have publicly made it clear per his Income Tax Return, up to the present, that he had only a limited practice of law. In fact, in his Income Tax Return, his principal occupation is a farmer of which he is. His 30 hectares orchard and pineapple farm is located at Calauan, Laguna. Moreover, and more than anything else, respondent being a Senior Citizen since 1992, is legally exempt under Section 4 of Rep. Act 7432 which took effect in 1992, in the payment of taxes, income taxes as an example. Being thus exempt, he honestly believe in view of his detachment from a total practice of law, but only in a limited practice, the subsequent payment by him of dues with the Integrated Bar is covered by such exemption. In fact, he never exercised his rights as an IBP member to vote and be voted upon. Nonetheless, if despite such honest belief of being covered by the exemption and if only to show that he never in any manner wilfully and deliberately failed and refused compliance with such dues, he is willing at any time to fulfill and pay all past dues even with interests, charges and surcharges and penalties. He is ready to tender such fulfillment or payment, not for allegedly saving his skin as again irrelevantly and frustratingly insinuated for vindictive purposes by the complainant, but as an honest act of accepting reality if indeed it is reality for him to pay such dues despite his candor and honest belief in all food faith, to the contrary. Esmsc
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On December 4, 1998, the IBP Board of Governors passed a resolutioni[6] adopting and approving the report and recommendation of the Investigating Commissioner which found respondent guilty, and recommended his suspension from the practice of law for three months and until he pays his IBP dues. Respondent moved for a reconsideration of the decision, but this was denied by the IBP in a resolution,i[7] dated April 22, 1999. Hence, pursuant to Rule 139-B, 12(b) of the Rules of Court, this case is here for final action on the decision of the IBP ordering respondents suspension for three months. The findings of IBP Commissioner Alfredo Sanz are as follows: On the first issue, Complainant has shown "respondents non -indication of the proper IBP O.R. and PTR numbers in his pleadings (Annexes "A", "B" and "C" of the letter complaint, more particularly his use of "IBP Rizal 259060 for at least three years." The records also show a "Certification dated March 24, 1997 from IBP Rizal Chapter President Ida R. Makahinud Javier that respondents last payment of his IBP dues was in 1991." While these allegations are neither denied nor categorically admitted by respondent, he has invoked and cited that "being a Senior Citizen since 1992, he is legally exempt under Section 4 of Republic Act No. 7432 which took effect in 1992 in the payment of taxes, income taxes as an example." .... The above cited provision of law is not applicable in the present case. In fact, respondent admitted that he is still in the practice of law when he alleged that the "undersigned since 1992 have publicly made it clear per his Income tax Return up to the present time that he had only a limited practice of law." (par. 4 of Respondents Memorandum). Therefore respondent is not exempt from paying his yearly dues to the Integrated Bar of the Philippines. Esmmis On the second issue, complainant claims that respondent has misled the court about his standing in the IBP by using the same IBP O.R. number in his pleadings of at least six years and therefore liable for his actions. Respondent in his memorandum did not discuss this issue. First. Indeed, respondent admits that since 1992, he has engaged in law practice without having paid his IBP dues. He likewise admits that, as appearing in the pleadings submitted by complainant to this Court, he indicated "IBP-Rizal 259060" in the pleadings he filed in court, at least for the years 1995, 1996, and 1997, thus misrepresenting that such was his IBP chapter membership and receipt number for the years in which those pleadings were filed. He claims, however, that he is only engaged in a "limited" practice and that he believes in good faith that he is exempt from the payment of taxes, such as income tax, under R.A. No. 7432, 4 as a senior citizen since 1992. Rule 139-A provides: Sec. 9. Membership dues. - Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set aside as a
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Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof. Sec. 10. Effect of non-payment of dues. - Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. In accordance with these provisions, respondent can engage in the practice of law only by paying his dues, and it does not matter that his practice is "limited." While it is true that R.A. No. 7432, 4 grants senior citizens "exemption from the payment of individual income taxes: provided, that their annual taxable income does not exceed the poverty level as determined by the National Economic and Development Authority (NEDA) for that year," the exemption does not include payment of membership or association dues. Second. By indicating "IBP-Rizal 259060" in his pleadings and thereby misrepresenting to the public and the courts that he had paid his IBP dues to the Rizal Chapter, respondent is guilty of violating the Code of Professional Responsibility which provides: Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION, AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Esmso CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any court; nor shall he mislead or allow the court to be misled by any artifice. Respondents failure to pay his IBP dues and his misrepresentation in the pleadings he filed in court indeed merit the most severe penalty. However, in view of responden ts advanced age, his express willingness to pay his dues and plea for a more temperate application of the law,i[8] we believe the penalty of one year suspension from the practice of law or until he has paid his IBP dues, whichever is later, is appropriate. WHEREFORE, respondent Atty. Francisco R. Llamas is SUSPENDED from the practice of law for ONE (1) YEAR, or until he has paid his IBP dues, whichever is later. Let a copy of this decision be attached to Atty. Llamas personal record in the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts in the land. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.
Canon 8
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Canon 9 Canon 10
HUEYSUWAN V. FLORIDO, A.C. No. 5624, JAN. 20, 2004 EN BANC [A.C. No. 5624. January 20, 2004] NATASHA HUEYSUWAN-FLORIDO, complainant, vs. ATTY. JAMES BENEDICT C. FLORIDO, respondent. DECISION YNARES-SANTIAGO, J.: This is an administrative complaint for the disbarment of respondent Atty. James Benedict C. Florido and his eventual removal from the Roll of Attorneys for allegedly violating his oath as a lawyer by manufacturing, flaunting and using a spurious and bogus Court of Appeals Resolution/Order.i[1] In her Complaint-Affidavit, Natasha V. Heysuwan-Florido averred that she is the legitimate spouse of respondent Atty. James Benedict C. Florido, but that they are estranged and living separately from each other. They have two children namely, Kamille Nicole H. Florido, five years old, and James Benedict H. Florido, Jr., three years old both of whom are in complainants custody. Complainant filed a case for the annulment of her marriage with respondent, docketed as Civil Case No. 23122, before the Regional Trial Court of Cebu City, Branch 24. Meanwhile, there is another case related to the complaint for annulment of marriage which is pending before the Court of Appeals and docketed as CA-G.R. SP No. 54235 entitled, James Benedict C. Florido v. Hon. Pampio Abarientos, et al. Sometime in the middle of December 2001, respondent went to complainants residence in Tanjay City, Negros Oriental and demanded that the custody of their two minor children be surrendered to him. He showed complainant a photocopy of an alleged Resolution issued by the Court of Appeals which supposedly granted his motion for temporary child custody. i[2] Complainant called up her lawyer but the latter informed her that he had not received any motion for temporary child custody filed by respondent. Complainant asked respondent for the original copy of the alleged resolution of the Court of Appeals, but respondent failed to give it to her. Complainant then examined the resolution closely and noted that it bore two dates: November 12, 2001 and November 29, 2001. Sensing something amiss, she refused to give custody of their children to respondent.
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In the mid-morning of January 15, 2002, while complainant was with her children in the ABC Learning Center in Tanjay City, respondent, accompanied by armed men, suddenly arrived and demanded that she surrender to him the custody of their children. He threatened to forcefully take them away with the help of his companions, whom he claimed to be agents of the National Bureau of Investigation. Alarmed, complainant immediately sought the assistance of the Tanjay City Police. The responding policemen subsequently escorted her to the police station where the matter could be clarified and settled peacefully. At the police station, respondent caused to be entered in the Police Blotter a statement that he, assisted by agents of the NBI, formally served on complainant the appellate courts resolution/order.i[3] In order to diffuse the tension, complainant agreed to allow the children to sleep with respondent for one night on condition that he would not take them away from Tanjay City. This agreement was entered into in the presence of Tanjay City Chief of Police Juanito Condes and NBI Investigator Roger Sususco, among others. In the early morning of January 16, 2002, complainant received information that a van arrived at the hotel where respondent and the children were staying to take them to Bacolod City. Complainant rushed to the hotel and took the children to another room, where they stayed until later in the morning. On the same day, respondent filed with the Regional Trial Court of Dumaguete City, Branch 31, a verified petitioni[4] for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged Court of Appeals resolution. In the meantime, complainant verified the authenticity of the Resolution and obtained a certification dated January 18, 2002 i[5] from the Court of Appeals stating that no such resolution ordering complainant to surrender custody of their children to respondent had been issued. At the hearing of the petition for habeas corpus on January 23, 2002, respondent did not appear. Consequently, the petition was dismissed. Hence, complainant filed the instant complaint alleging that respondent violated his att orneys oath by manufacturing, flaunting and using a spurious Court of Appeals Resolution in and outside a court of law. Furthermore, respondent abused and misused the privileged granted to him by the Supreme Court to practice law in the country. After respondent answered the complaint, the matter was referred to the IBP-Commission on Bar Discipline for investigation, report and recommendation. The IBP-CBD recommended that respondent be suspended from the practice of law for a period of three years with a warning that another offense of this nature will result in his disbarment.i[6] On June 23, 2003, the IBP Board of Governors adopted and approved the Report and recommendation of the Commission with the modification that the penalty of suspension be increased to six years. The issue to be resolved is whether or not the respondent can be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the Court of Appeals. In his answer to the complaint, respondent claims that he acted in good faith in invoking the Court of Appeals Resolution which he honestly believed to be authentic. This, however, is belied by the fact that he used and presented the spurious resolution several times. As pointed out by the Investigating Commissioner, the assailed Resolution was presented by respondent on at least two occasions: first, in his Petition for Issuance of Writ of Habeas Corpus docketed as Special Proc. Case No. 3898,i[7] which he filed with the Regional Trial Court of Dumaguete City; and second, when he sought the assistance of the Philippine National Police (PNP) of Tanjay
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City to recover custody of his minor children from complainant. Since it was respondent who used the spurious Resolution, he is presumed to have participated in its fabrication. Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined. Even with due recognition then that counsel is expected to display the utmost zeal in the defense of a clients cause, it must never be at the expense of the truth.i[8] Thus, the Code of professional Responsibility states: CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rule 10.01 - A lawyer shall not do any falsehood; nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice. Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of an 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. Moreover, the records show that respondent used offensive language in his pleadings in describing complainant and her relatives. A lawyers language should be forceful but dignified, emphati c but respectful as befitting an advocate and in keeping with the dignity of the legal profession. i[9] The lawyers arguments whether written or oral should be gracious to both court and opposing counsel and should be of such words as may be properly addressed by one gentlemen to another.i[10] By calling complainant, a sly manipulator of truth as well as a vindictive congenital prevaricator, hardly measures to the sobriety of speech demanded of a lawyer. Respondents actions erode the public perception of the legal profession. They constitute gross misconduct and the sanctions for such malfeasance is prescribed by Section 27, Rule 138 of the Rules of Court which states: SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore .- 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. Considering the attendant circumstances, we agree with the recommendation of the IBP Board of Governors that respondent should be suspended from the practice of law. However, we find that the period of six years is too harsh a penalty. Instead, suspension for the lesser period of two years, which we deem commensurate to the offense committed, is hereby imposed on respondent. WHEREFORE, in view of all the foregoing, Atty. James Benedict C. Florido is SUSPENDED from the practice of law for a period of two (2) years. Let copies of this resolution be entered in the personal record of respondent as a member of the Bar and furnished the Bar Confidant, the Integrated Bar of the Philippines (IBP) and the Court Administrator for circulation to all courts of the country. SO ORDERED.
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Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
ETERNAL GARDENS MEMORIAL PARK V. CA, G.R. NO. 123698, AUG. 5, 1998 SECOND DIVISION
[G.R. No. 123698. August 5, 1998]

ETERNAL GARDENS MEMORIAL PARK CORPORATION, petitioner, vs. COURT OF APPEALS and SPS. LILIA SEVILLA and JOSE SEELIN, respondents. DECISION MARTINEZ, A.M., J.: This is the second time petitioner Eternal Gardens Memorial Park Corporation has come to this Court assailing the execution of the judgment dated August 24, 1989, rendered by the Regional Trial Court of Caloocan City in Civil Case No. C-9297. Apparently, hope springs eternal for petitioner, considering that the issues raised in this second petition for review are but mere reiterations of previously settled issues which have already attained finality. We now write finis to this controversy which has dragged on for seventeen (17) years, for as we ruled in Gomez vs. Presiding Judge, RTC, Br. 15, Ozamis City:i[1] x x x litigations must end and terminate sometime and somewhere, it being essential to the effective administration of justice that once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Hence, courts must guard themselves against any scheme to bring about that result, for constituted as they are to put an end to controversies, they should frown upon any attempt to prolong it. Public policy and sound practice demand that at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. Interes rei publicae ut finis sit litium. The facts: The case started on May 18, 1981 when private respondent-spouses Jose Seelin and Lilia Sevilla Seelin filed a complaint against Central Dyeing & Finishing Corporation (Central Dyeing for brevity) for quieting of title and for declaration of nullity of Transfer Certificate of Title (TCT No. 205942) issued in the name of said corporation, docketed as Civil Case No. C-9297, before the Regional Trial Court of Caloocan City. On August 24, 1989, the trial court rendered judgment, i[2] the dispositive portion of which reads: "WHEREFORE, judgment is hereby rendered: Declaring the defendant's Certificate of Title No. 205942 null and void.
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Dismissing counterclaim of defendant without pronouncement as to costs." The aforesaid decision was affirmedi[3] by respondent Court of Appeals in CA-G.R. CV No. 25989 on June 25, 1991 and eventually upheld by this Court in G.R. No. L-101819 on November 25, 1991. Said dismissal became final on March 5, 1992.i[4] The RTC decision, having become final and executory, private respondents moved for execution which was granted by the lower court. Accordingly, a writ of execution of the decision was issued. Subsequently, private respondents filed an Urgent Manifestation and Motion for an Immediate Writ of Possession/Break Open Order. The motion was opposed by herein petitioner Eternal Gardens Memorial Park Corporation contending that it is not submitting to the jurisdiction of the trial court; that it is completely unaware of the suit between private respondents and Central Dyeing; that it is the true and registered owner of the lot having bought the same from Central Dyeing; and that it was a buyer in good faith. On July 1, 1992, the trial court granted private respondents motion. Another Order was issued on August 18, 1992 by the trial court holding that the judgment was binding on petitioner, being the successor-in-interest of defendant Central Dyeing pursuant to Rule 39, Section 48(b) of the Revised Rules of Court. Petitioner went to the Court of Appeals in a petition for certiorari. On September 30, 1992 the Court of Appeals rendered judgment dismissing the petition, excerpts of which read: We reviewed carefully the assailed orders and find no compelling reason to disturb the same. Indeed, since petitioner admits that it bought the property from Central Dyeing and Finishing Corporation, defendant in Civil Case No. C-9297, petitioner is bound by the decision rendered therein by respondent Judge. Under Section 20, Rule 3, Revised Rules of Court, a transferee pendente lite does not have to be included or impleaded by name in order to be bound by the judgment because the action or suit may be continued for or against the original party or the transferor and still be binding on the transferee i[5] The motion for reconsideration was also denied by the Court of Appeals on February 18, 1993.i[6] On further appeal to this Court, petitioners petition for review on certiorari, docketed as G. R. No. 109076, was denied in a resolution dated August 2, 1993.i[7] Upon finality of said resolution, this Court issued Entry of Judgment dated October 21, 1993.i[8] Thereafter, private respondents filed another motion for the issuance of a second writ of execution before the trial court which was granted in the Order of July 20, 1994. Not willing to give up, petitioner sought a reconsideration. Petitioners motion was initially granted i[9] on August 29, 1994 by the trial court thru Judge Arturo Romero. However, upon motion of private respondents, the said order was reconsidered on December 19, 1994i[10] by Judge Emilio L. Leachon, Jr., who succeeded Judge Romero. Forthwith, alias writs of execution were issued.
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Desperately needing a favorable judgment, petitioner, for the second time, filed a petition for certiorarii[11] with respondent Court of Appeals (docketed as CA-G.R. SP No. 36591), arguing inter alia: that the judgment cannot be executed against it because it was not a party to Civil Case No. C9297; that the decision of the trial court in said case never mandated Central Dyeing to deliver possession of the property to the private respondents; that certain facts and circumstances which occurred after the finality of the judgment will render the execution highly unjust, illegal and inequitable; that the issuance of the assailed writ of execution violates the lot buyers freedom of religion and worship; and that private respondents title is being questioned in another case. On September 29, 1995, the respondent court rendered judgmenti[12] dismissing the petition for certiorari on the ground that the lower court's decision in Civil Case No. 9297 had long become final and executory. It ruled, thus: "This Court needs (sic) not belabor the fact that the respondent Court's decision in Civil Case No. 9297 had long become final and executory. The respondent court's writs of execution and possession could have been implemented a long time ago if not for the series of legal maneuvers of petitioner Eternal Gardens. x x x x Petitioner Eternal Gardens cannot anymore stop the execution of a final judgment by raising issues which actually have been ruled upon by this Court in its earlier case with Us in CA-G.R. SP No. 28797. To Our mind, the instant petition is a mere continuation of petitioner's dilatory tactics so that plaintiffs, although prevailing party, will not benefit at all from a final judgment in their favor. Thus, the instant petition is obviously, frivolous and dilatory warranting the assessment of double costs of this suit against petitioner Sec. 3, Rule 142 of the Revised Rules of Court). Moreover, as manifested by the plaintiffs, herein private respondents, the instant petition has already become moot and academic as the property in question was already turned over by the Deputy Sheriff to the plaintiffs, and the writs of execution and possession fully satisfied. Thus, hopefully, putting the legal battle of this case to rest. " (Emphasis ours.) The motion for reconsideration was likewise denied on January 30, 1996.i[13] Petitioner once again seeks this Court's intervention reiterating in essence the same line of arguments espoused in their petition before the respondent Court of Appeals. The petition must fail. It is a settled rule that once a court renders a final judgment, all the issues between or among the parties before it are deemed resolved and its judicial functions with respect to any matter related to the controversy litigated come to an end. Petitioners argument that the trial court cannot order it and the one hundred (100) memorial lot owners to surrender and/or deliver possession of the property in dispute on the ground that they were never parties to the case between private respondents and Central Dyeing, has long been resolved by respondent Court of Appeals in CA-G.R. SP No. 28797 when it ruled: Indeed, since petitioner admits that it bought the property from Central Dyeing and Finishing Corporation, defendant in Civil Case No. C-9297, petitioner is bound by the decision rendered therein by respondent Judge.
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Under Section 20, Rule 3, Revised Rules of Court, a transferee pendente lite does not have to be included or impleaded by name in order to be bound by the judgment because the action or suit may be continued for or against the original party or the transferor and still be binding on the transferee.i[14] The aforesaid decision was affirmed by this Court in G.R. No. 109076 and attained finality on October 21, 1993. There is, therefore, no need for us to belabor the same issue here. Further, petitioners contention that a determination of the issue of possession should first be resolved before the issuance of a writ of possession is untenable. Placing private respondents in possession of the land in question is the necessary and logical effect or consequence of the decision in Civil Case No. C-9297 declaring them as the rightful owners of the property. As correctly argued by the private respondents, they do not have to institute another action for the purpose of taking possession of the subject realty. Petitioner likewise asserts that certain facts and circumstances transpired after the finality of judgment in Civil Case No. C-9297 which will render the execution of the said judgment unjust and illegal. It points to the pendency of Civil Case No. C-11337 before the Regional Trial Court of Caloocan City filed by the Republic of the Philippines against private respondents for nullification of 22 titles which include the title to the subject property. Petitioner argues that the pendency of the said case provides a reasonable justification why execution of the aforesaid judgment and delivery of possession of the subject property should be permanently stayed or at least held in abeyance until after the final resolution of the case. We do not agree. The pendency of Civil Case No. C-11337 for annulment of titles filed by the Republic against private respondents will not justify the suspension of the execution of the judgment in Civil Case No. C-9297. This is so because the petitioners title which originated from Central Dyeing (TCT No. 205942) was already annulled in the judgment sought to be executed, and which judgment had long been affirmed by the Court of Appeals and by this Court. Thus, even if, in the remote possibility, the trial court will nullify the said private respondents title in Civil Case No. C-11337, as argued by petitioner, the supposed adverse decision cannot validate TCT No. 205942 and make petitioner the rightful owner of the subject land. Clearly, the present petition was instituted merely to delay the execution of the judgment. Finally, petitioners fear that the grave lots will be disturbed, desecrated and destroyed once the execution of the judgment proceeds is more imagined than real. A perusal of the Orders of the trial court with regard to the execution of the judgment reveals that the interests of said burial lot owners have been taken into account by the trial court when it took steps and made suggestions as to how their rights could be amply protected. In its Order dated February 13, 1995, the trial court, through Judge Emilio L. Leachon, Jr., stated: "The defendant-petitioner are (sic) however not completely without recourse or remedy because they can still go after the original party-defendant or transferor of the property in question which is Central Dyeing and Finishing Corporation pursuant to Section 20, Rule 3 of the Rules of Court. And should it be difficult or nay impossible for plaintiff-respondents to be placed in possession of the subject
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property, due to defendant-petitioners' arguments that the same have already been sold to burial lot buyers, then it should be incumbent for the defendant-petitioners to negotiate with the plaintiffrespondents for payment in cash of the property subject of their complaint to avoid demolition or desecration since they benefited from the sale of the burial lots." i[15] In another order dated May 4, 1995, the following directive was given, to wit: "The court directs and orders the defendant to give access to the plaintiffs and as proposed by the plaintiffs, they are given authority to destroy a small portion of the fence so that they can have access to the property. But as to the demolition of the burial lots, negotiation could be made by the defendant with the former owner so that cash payment or cash settlement be made." i[16] Even the former Presiding Judge Arturo A. Romero, in his Order dated July 20, 1994, imposed the following limitation on the writ of execution, as follows: "Moreover, considering the manifestation that large areas within the Eternal Gardens have been sold to so many persons who now have buried their beloved ones in the grave lots adjoining the lot in question, it is therefore, in the interest of justice and equity, that the enforcement of the writ of possession and break open order should be applied only to the gate of Eternal Gardens Memorial Park at the eastern side nearest to the parcel of land in question where the factory of the defendant is located, in order to avoid disturbing the peace of the resting souls over the graves spread over the parcels of land within the said memorial park."i[17] From the above-mentioned orders, it can be seen that the issue as to the status of the burial lot owners has been properly addressed. Be that as it may, the petition has been rendered moot and academic in view of the fact that the questioned Alias Writ of Possession dated December 27, 1994 and the Alias Writ of Execution dated December 27, 1994 have already been implemented by the Sheriff as shown by the Sheriffs Return,i[18] dated March 31, 1995, with the attached Turn Over Premises i[19] indicating therein that private respondents took possession of the subject property. A note of caution. This case has again delayed the execution of a final judgment for seventeen (17) years to the prejudice of the private respondents. In the meantime that petitioner has thwarted execution, interment on the disputed lot has long been going on, so that by the time this case is finally terminated, the whole lot shall have already been filled with tombstones, leaving nothing for private respondents, the real owners of the property. This is a mockery of justice. We note that while lawyers owe entire devotion to the interest of their clients and zeal in the defense of their client's right, they should not forget that they are officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. They should not, therefore, misuse the rules of procedure to defeat the ends of justice or unduly delay a case, impede the execution of a judgment or misuse court processes.i[20] In Banogan et. al. vs. Cerna, et. al.,i[21] we ruled: "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 pointless petitions that only add to the workload of the judiciary, especially this Court, which is burdened enough as it is. A judicious study of the facts and
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the law should advise them when a case such as this, should not be permitted to be filed to merely clutter the already congested judicial dockets. They do not advance the cause of law or their clients by commencing litigations that for sheer lack of merit do not deserve the attention of the courts." WHEREFORE, the petition is hereby DENIED. SO ORDERED. Regalado (Chairman), Melo, Puno and Mendoza, JJ.,concur.
Canon 11
IN RE ALMACEN, G.R. NO. L-27654, FEB. 18, 1970 EN BANC
G.R. No. L-27654 February 18, 1970 IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H. CALERO, vs. VIRGINIA Y. YAPTINCHAY. RESOLUTION
CASTRO, J.: Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of Title," filed on September 25, 1967, in protest against what he therein asserts is "a great injustice committed against his client by this Supreme Court." He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people may know of the silent injustice's committed by this Court," and that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He ends his petition with a prayer that
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... a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the aforementioned petition. Thus, on September 26, 1967, the Manila Times published statements attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to expose the tribunal's "unconstitutional and obnoxious" practice of arbitrarily denying petitions or appeals without any reason. Because of the tribunal's "short-cut justice," Almacen deplored, his client was condemned to pay P120,000, without knowing why he lost the case. xxx xxx xxx There is no use continuing his law practice, Almacen said in this petition, "where our Supreme Court is composed of men who are calloused to our pleas for justice, who ignore without reason their own applicable decisions and commit culpable violations of the Constitution with impunity . xxx xxx xxx He expressed the hope that by divesting himself of his title by which he earns his living, the present members of the Supreme Court "will become responsive to all cases brought to its attention without discrimination, and will purge itself of those unconstitutional and obnoxious "lack of merit" or "denied resolutions. (Emphasis supplied)
Atty. Almacen's statement that

... our own Supreme Court is composed of men who are calloused to our pleas of [sic] justice, who ignore their own applicable decisions and commit culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicle of September 28, 1967. In connection therewith, Pacis commented that Atty. Almacen had "accused the high tribunal of offenses so serious that the Court must clear itself," and that "his charge is one of the constitutional bases for impeachment." The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs. Antonio H. Calero,1 in which Atty. Almacen was counsel for the defendant. The trial court, after due hearing, rendered judgment against his client. On June 15, 1966 Atty. Almacen received a copy of the decision. Twenty days later, or on July 5, 1966, he moved for its reconsideration. He served on the adverse counsel a copy of the motion, but did not notify the latter of the time and place of hearing on said motion. Meanwhile, on July 18, 1966, the plaintiff moved for execution of the judgment. For "lack of proof of service," the trial court denied both motions. To prove that he did serve on the adverse party a copy of his first motion for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion for reconsideration to which he attached the required registry return card. This second motion for reconsideration, however, was ordered withdrawn by the trial court on August 30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22, 1966, had already perfected the appeal. Because the plaintiff interposed no objection to the record on appeal and appeal bond, the trial court elevated the case to the Court of Appeals.
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But the Court of Appeals, on the authority of this Court's decision in Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by plaintiff-appellee praying that the appeal be dismissed, and of the opposition thereto filed by defendant-appellant; the Court RESOLVED TO DISMISS, as it hereby dismisses, the appeal, for the reason that the motion for reconsideration dated July 5, 1966 (pp. 90-113, printed record on appeal) does not contain a notice of time and place of hearing thereof and is, therefore, a useless piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24, 1965), which did not interrupt the running of the period to appeal, and, consequently, the appeal was perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co. is not decisive. At the same time he filed a pleading entitled "Latest decision of the Supreme Court in Support of Motion for Reconsideration," citing Republic of the Philippines vs. Gregorio A. Venturanza, L-20417, decided by this Court on May 30, 1966, as the applicable case. Again, the Court of Appeals denied the motion for reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967 and the supplement thereto of the same date filed by defendant- appellant, praying for reconsideration of the resolution of May 8, 1967, dismissing the appeal. Appellant contends that there are some important distinctions between this case and that of Manila Surety and Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L- 16636, June 24, 1965, relied upon by this Court in its resolution of May 8, 1967. Appellant further states that in the latest case, Republic vs. Venturanza, L-20417, May 30, 1966, decided by the Supreme Court concerning the question raised by appellant's motion, the ruling is contrary to the doctrine laid down in the Manila Surety & Fidelity Co., Inc. case. There is no substantial distinction between this case and that of Manila Surety & Fidelity Co. In the case of Republic vs. Venturanza, the resolution denying the motion to dismiss the appeal, based on grounds similar to those raised herein was issued on November 26, 1962, which was much earlier than the date of promulgation of the decision in the Manila Surety Case, which was June 24, 1965. Further, the resolution in the Venturanza case was interlocutory and the Supreme Court issued it "without prejudice to appellee's restoring the point in the brief." In the main decision in said case (Rep. vs. Venturanza the Supreme Court passed upon the issue sub silencio presumably because of its prior decisions contrary to the resolution of November 26, 1962, one of which is that in the Manila Surety and Fidelity case. Therefore Republic vs. Venturanza is no authority on the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and by minute resolution denied the appeal. Denied shortly thereafter was his motion for reconsideration as well as his petition for leave to file a second motion for reconsideration and for extension of time. Entry of judgment was made on September 8, 1967. Hence, the second motion for reconsideration filed by him after the Said date was ordered expunged from the records. It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his "Petition to Surrender Lawyer's Certificate of Title," already adverted to a pleading that is interspersed from beginning to end with the insolent contemptuous, grossly disrespectful and derogatory remarks hereinbefore reproduced, against this Court as well as its individual members, a behavior that is as unprecedented as it is unprofessional.
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Nonetheless we decided by resolution dated September 28, 1967 to withhold action on his petition until he shall have actually surrendered his certificate. Patiently, we waited for him to make good his proffer. No word came from him. So he was reminded to turn over his certificate, which he had earlier vociferously offered to surrender, so that this Court could act on his petition. To said reminder he manifested "that he has no pending petition in connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and executory;" that this Court's September 28, 1967 resolution did not require him to do either a positive or negative act; and that since his offer was not accepted, he "chose to pursue the negative act." In the exercise of its inherent power to discipline a member of the bar for contumely and gross misconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to show cause "why no disciplinary action should be taken against him." Denying the charges contained in the November 17 resolution, he asked for permission "to give reasons and cause why no disciplinary action should be taken against him ... in an open and public hearing." This Court resolved (on December 7) "to require Atty. Almacen to state, within five days from notice hereof, his reasons for such request, otherwise, oral argument shall be deemed waived and incident submitted for decision." To this resolution he manifested that since this Court is "the complainant, prosecutor and Judge," he preferred to be heard and to answer questions "in person and in an open and public hearing" so that this Court could observe his sincerity and candor. He also asked for leave to file a written explanation "in the event this Court has no time to hear him in person." To give him the ampliest latitude for his defense, he was allowed to file a written explanation and thereafter was heard in oral argument. His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far from being contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this time embellishing it with abundant sarcasm and innuendo. Thus:
At the start, let me quote passages from the Holy Bible, Chapter 7, St. Matthew: "Do not judge, that you may not be judged. For with what judgment you judge, you shall be judged, and with what measure you measure, it shall be measured to you. But why dost thou see the speck in thy brother's eye, and yet dost not consider the beam in thy own eye? Or how can thou say to thy brother, "Let me cast out the speck from thy eye"; and behold, there is a beam in thy own eye? Thou hypocrite, first cast out the beam from thy own eye, and then thou wilt see clearly to cast out the speck from thy brother's eyes." "Therefore all that you wish men to do to you, even to do you also to them: for this is the Law and the Prophets." xxx xxx xxx Your respondent has no intention of disavowing the statements mentioned in his petition. On the contrary, he refirms the truth of what he stated, compatible with his lawyer's oath that he will do no falsehood, nor consent to the doing of any in court. But he vigorously DENY under oath that the underscored statements contained in the CHARGE are insolent, contemptuous, grossly disrespectful and derogatory to the individual members of the Court; that they tend to bring the entire Court, without justification, into disrepute; and constitute conduct unbecoming of a member of the noble profession of law. xxx xxx xxx Respondent stands four-square that his statement is borne by TRUTH and has been asserted with NO MALICE BEFORE AND AFTER THOUGHT but mainly motivated with the highest interest of justice that in
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the particular case of our client, the members have shown callousness to our various pleas for JUSTICE, our pleadings will bear us on this matter, ... xxx xxx xxx To all these beggings, supplications, words of humility, appeals for charity, generosity, fairness, understanding, sympathy and above all in the highest interest of JUSTICE, what did we get from this COURT? One word, DENIED, with all its hardiness and insensibility. That was the unfeeling of the Court towards our pleas and prayers, in simple word, it is plain callousness towards our particular case. xxx xxx xxx Now that your respondent has the guts to tell the members of the Court that notwithstanding the violation of the Constitution, you remained unpunished, this Court in the reverse order of natural things, is now in the attempt to inflict punishment on your respondent for acts he said in good faith. Did His Honors care to listen to our pleadings and supplications for JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors attempt to justify their stubborn denial with any semblance of reason, NEVER. Now that your respondent is given the opportunity to face you, he reiterates the same statement with emphasis, DID YOU? Sir. Is this. the way of life in the Philippines today, that even our own President, said: "the story is current, though nebulous ,is to its truth, it is still being circulated that justice in the Philippines today is not what it is used to be before the war. There are those who have told me frankly and brutally that justice is a commodity, a marketable commodity in the Philippines." xxx xxx xxx We condemn the SIN, not the SINNER. We detest the ACTS, not the ACTOR. We attack the decision of this Court, not the members. ... We were provoked. We were compelled by force of necessity. We were angry but we waited for the finality of the decision. We waited until this Court has performed its duties. We never interfered nor obstruct in the performance of their duties. But in the end, after seeing that the Constitution has placed finality on your judgment against our client and sensing that you have not performed your duties with "circumspection, carefulness, confidence and wisdom", your Respondent rise to claim his God given right to speak the truth and his Constitutional right of free speech. xxx xxx xxx The INJUSTICES which we have attributed to this Court and the further violations we sought to be prevented is impliedly shared by our President. ... . xxx xxx xxx
What has been abhored and condemned, are the very things that were applied to us. Recalling Madam Roland's famous apostrophe during the French revolution, "O Liberty, what crimes are committed in thy name", we may dare say, "O JUSTICE, what technicalities are committed in thy name' or more appropriately, 'O JUSTICE, what injustices are committed in thy name."
xxx xxx xxx We must admit that this Court is not free from commission of any abuses, but who would correct such abuses considering that yours is a court of last resort. A strong public opinion must be generated so as to curtail these abuses. xxx xxx xxx
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The phrase, Justice is blind is symbolize in paintings that can be found in all courts and government offices. We have added only two more symbols, that it is also deaf and dumb. Deaf in the sense that no members of this Court has ever heard our cries for charity, generosity, fairness, understanding sympathy and for justice; dumb in the sense, that inspite of our beggings, supplications, and pleadings to give us reasons why our appeal has been DENIED, not one word was spoken or given ... We refer to no human defect or ailment in the above statement. We only describe the. impersonal state of things and nothing more. xxx xxx xxx As we have stated, we have lost our faith and confidence in the members of this Court and for which reason we offered to surrender our lawyer's certificate, IN TRUST ONLY. Because what has been lost today may be regained tomorrow. As the offer was intended as our self-imposed sacrifice, then we alone may decide as to when we must end our self-sacrifice. If we have to choose between forcing ourselves to have faith and confidence in the members of the Court but disregard our Constitution and to uphold the Constitution and be condemned by the members of this Court, there is no choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a studied disrespect to this Court, let us examine the grain of his grievances. He chafes at the minute resolution denial of his petition for review. We are quite aware of the criticisms2 expressed against this Court's practice of rejecting petitions by minute resolutions. We have been asked to do away with it, to state the facts and the law, and to spell out the reasons for denial. We have given this suggestion very careful thought. For we know the abject frustration of a lawyer who tediously collates the facts and for many weary hours meticulously marshalls his arguments, only to have his efforts rebuffed with a terse unadorned denial. Truth to tell, however, most petitions rejected by this Court are utterly frivolous and ought never to have been lodged at all. 3 The rest do exhibit a first-impression cogency, but fail to, withstand critical scrutiny. By and large, this Court has been generous in giving due course to petitions for certiorari. Be this as it may, were we to accept every case or write a full opinion for every petition we reject, we would be unable to carry out effectively the burden placed upon us by the Constitution. The proper role of the Supreme Court, as Mr. Chief Justice Vinson of the U.S. Supreme Court has defined it, is to decide "only those cases which present questions whose resolutions will have immediate importance beyond the particular facts and parties involved." Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the same petition different reasons may read different justices to the same result ... . Since there are these conflicting, and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1,260, 1,105,1,189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The tune that would be required is prohibitive. Apart from the fact that as already indicated different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable.
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Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31, 1963 (60 O.G. 8099), this Court, through the then Chief Justice Cesar Bengzon, articulated its considered view on this matter. There, the petitioners counsel urged that a "lack of merit" resolution violates Section 12 of Article VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has been raised before; and we held that these "resolutions" are not "decisions" within the above constitutional requirement. They merely hold that the petition for review should not be entertained in view of the provisions of Rule 46 of the Rules of Court; and even ordinary lawyers have all this time so understood it. It should be remembered that a petition to review the decision of the Court of Appeals is not a matter of right, but of sound judicial discretion; and so there is no need to fully explain the court's denial. For one thing, the facts and the law are already mentioned in the Court of Appeals' opinion. By the way, this mode of disposal has as intended helped the Court in alleviating its heavy docket; it was patterned after the practice of the U.S. Supreme Court, wherein petitions for review are often merely ordered "dismissed".
We underscore the fact that cases taken to this Court on petitions for certiorari from the Court of Appeals have had the benefit of appellate review. Hence, the need for compelling reasons to buttress such petitions if this Court is to be moved into accepting them. For it is axiomatic that the supervisory jurisdiction vested upon this Court over the Court of Appeals is not intended to give every losing party another hearing. This axiom is implied in sec. 4 of Rule 45 of the Rules of Court which recites:
Review of Court of Appeals' decision discretionary.A review is not a matter of right but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: (a) When the Court of Appeals has decided a question of substance, not theretofore determined by the Supreme Court, nor has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; (b) When the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by the lower court, as to call for the exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing examination of the pleadings. and records, that the Court of Appeals had fully and correctly considered the dismissal of his appeal in the light of the law and applicable decisions of this Court. Far from straying away from the "accepted and usual course of judicial proceedings," it traced the procedural lines etched by this Court in a number of decisions. There was, therefore, no need for this Court to exercise its supervisory power. As a law practitioner who was admitted to the Bar as far back as 1941, Atty. Almacen knew or ought to have known that for a motion for reconsideration to stay the running of the period of appeal, the movant must not only serve a copy of the motion upon the adverse party (which he did), but also notify the adverse party of the time and place of hearing (which admittedly he did not). This rule was unequivocally articulated in Manila Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in general by Rule 15, Sections 4 and 5 (formerly Rule 26), which provides that such notice shall state the time, and place of hearing and shall be
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served upon all the Parties concerned at least three days in advance. And according to Section 6 of the same Rule no motion shall be acted upon by the court without proof of such notice. Indeed it has been held that in such a case the motion is nothing but a useless piece of paper (Philippine National Bank v. Damasco, I,18638, Feb. 28, 1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands vs. Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the time and place of hearing the Court would have no way to determine whether that party agrees to or objects to the motion, and if he objects, to hear him on his objection, since the Rules themselves do not fix any period within which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's judgment, he has only himself to blame. His own negligence caused the forfeiture of the remedy of appeal, which, incidentally, is not a matter of right. To shift away from himself the consequences of his carelessness, he looked for a "whipping boy." But he made sure that he assumed the posture of a martyr, and, in offering to surrender his professional certificate, he took the liberty of vilifying this Court and inflicting his exacerbating rancor on the members thereof. It would thus appear that there is no justification for his scurrilous and scandalous outbursts. Nonetheless we gave this unprecedented act of Atty. Almacen the most circumspect consideration. We know that it is natural for a lawyer to express his dissatisfaction each time he loses what he sanguinely believes to be a meritorious case. That is why lawyers are given 'wide latitude to differ with, and voice their disapproval of, not only the courts' rulings but, also the manner in which they are handed down. Moreover, every citizen has the right to comment upon and criticize the actuations of public officers. This right is not diminished by the fact that the criticism is aimed at a judicial authority, 4 or that it is articulated by a lawyer.5 Such right is especially recognized where the criticism concerns a concluded litigation,6 because then the court's actuations are thrown open to public consumption. 7 "Our decisions and all our official actions," said the Supreme Court of Nebraska,8 "are public property, and the press and the people have the undoubted right to comment on them, criticize and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion." The likely danger of confusing the fury of human reaction to an attack on one's integrity, competence and honesty, with "imminent danger to the administration of justice," is the reason why courts have been loath to inflict punishment on those who assail their actuations.9 This danger lurks especially in such a case as this where those who Sit as members of an entire Court are themselves collectively the aggrieved parties. Courts thus treat with forbearance and restraint a lawyer who vigorously assails their actuations. 10 For courageous and fearless advocates are the strands that weave durability into the tapestry of justice. Hence, as citizen and officer of the court, every lawyer is expected not only to exercise the right, but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. 11 Courts and judges are not sacrosanct. 12 They should and expect critical evaluation of their performance. 13 For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society, nourished by the periodic appraisal of the citizens whom it is expected to serve.
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Well-recognized therefore 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. The reason is that
An attorney does not surrender, in assuming the important place accorded to him in the administration of justice, his right as a citizen to criticize the decisions of the courts in a fair and respectful manner, and the independence of the bar, as well as of the judiciary, has always been encouraged by the courts. ( In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional work of the bar. In the prosecution of appeals, he points out the errors of lower courts. In written for law journals he dissects with detachment the doctrinal pronouncements of courts and fearlessly lays bare for -all to see that flaws and inconsistence" of the doctrines (Hill v. Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the expansion or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities for observing and forming a correct judgment. They are in constant attendance on the courts. ... To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood, by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity to become conversant with the character and efficiency of our judges. No class is less likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. ( State Board of Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the lips of those in the best position to give advice and who might consider it their duty to speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence." ( State v. Circuit Court, 72 N.W. 196) But it 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 the One hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is Such a misconduct that subjects a lawyer to disciplinary action. For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to conduct himself "with all good fidelity ... to the courts; 14 and the Rules of Court constantly remind him "to observe and maintain the respect due to courts of justice and judicial officers." 15 The first canon of legal ethics enjoins him "to maintain towards the courts a respectful attitude, not for the
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sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance." As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers even those gifted with superior intellect are enjoined to rein up their tempers.
The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and selfrespect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission. ( In Re Scouten, 40 Atl. 481) We concede that a lawyer may think highly of his intellectual endowment That is his privilege. And he may suffer frustration at what he feels is others' lack of it. That is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications 16 or in the course of a political, campaign, 17 if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action. Of fundamental pertinence at this juncture is an examination of relevant parallel precedents. 1. Admitting that a "judge as a public official is neither sacrosanct nor immune to public criticism of his conduct in office," the Supreme Court of Florida in State v. Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any conduct of a lawyer which brings into scorn and disrepute the administration of justice demands condemnation and the application of appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge or a court is beyond bona fide comments and criticisms which do not exceed the bounds of decency and truth or which are not aimed at. the destruction of public confidence in the judicial system as such. However, when the likely impairment of the administration of justice the direct product of false and scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal judge of having committed judicial error, of being so prejudiced as to deny his clients a fair trial on appeal and of being subject to
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the control of a group of city officials. As a prefatory statement he wrote: "They say that Justice is BLIND, but it took Municipal Judge Willard to prove that it is also DEAF and DUMB!" The court did not hesitate to find that the leaflet went much further than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused to belittle and besmirch the court and to bring it into disrepute with the general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the two-year suspension of an attorney who published a circular assailing a judge who at that time was a candidate for re-election to a judicial office. The circular which referred to two decisions of the judge concluded with a statement that the judge "used his judicial office to enable -said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no limit to the criticism members of the bar may make regarding the capacity, impartiality, or integrity of the courts, even though it extends to the deliberate publication by the attorney capable of correct reasoning of baseless insinuations against the intelligence and integrity of the highest courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case mentioned it was observed, for instance: "It may be (although we do not so decide) that a libelous publication by an attorney, directed against a judicial officer, could be so vile and of such a nature as to justify the disbarment of its author." Yet the false charges made by an attorney in that case were of graver character than those made by the respondent here. But, in our view, the better rule is that which requires of those who are permitted to enjoy the privilege of practicing law the strictest observance at all times of the principles of truth, honesty and fairness, especially in their criticism of the courts, to the end that the public confidence in the due administration of justice be upheld, and the dignity and usefulness of the courts be maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney, representing a woman who had been granted a divorce, attacked the judge who set aside the decree on bill of review. He wrote the judge a threatening letter and gave the press the story of a proposed libel suit against the judge and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that my name is protected from the libel, lies, and perjury committed in the cases involved, I shall be compelled to resort to such drastic action as the law allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow such dastardly work to go unchallenged," and said that he was engaged in dealing with men and not irresponsible political manikins or appearances of men. Ordering the attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge, it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward the judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted. The letter written to the judge was plainly an attempt to intimidate and influence him in the discharge of judicial functions, and the
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bringing of the unauthorized suit, together with the write-up in the Sunday papers, was intended and calculated to bring the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state of being influenced by corruption and greed, saying that the seats of the Supreme Court were bartered. It does not appear that the attorney had criticized any of the opinions or decisions of the Court. The lawyer was charged with unprofessional conduct, and was ordered suspended for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the authority of the court against whose members it was made, bring its judgments into contempt, undermine its influence as an unbiased arbiter of the people's right, and interfere with the administration of justice. ... Because a man is a member of the bar the court will not, under the guise of disciplinary proceedings, deprive him of any part of that freedom of speech which he possesses as a citizen. The acts and decisions of the courts of this state, in cases that have reached final determination, are not exempt from fair and honest comment and criticism. It is only when an attorney transcends the limits of legitimate criticism that he will be held responsible for an abuse of his liberty of speech. We well understand that an independent bar, as well as independent court, is always a vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for submitting to an appellate court an affidavit reflecting upon the judicial integrity of the court from which the appeal was taken. Such action, the Court said, constitutes unprofessional conduct justifying suspension from practice, notwithstanding that he fully retracted and withdrew the statements, and asserted that the affidavit was the result of an impulse caused by what he considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in the profession of criticising the motives and integrity of judicial officers in the discharge of their duties, and thereby reflecting on the administration of justice and creating the impression that judicial action is influenced by corrupt or improper motives. Every attorney of this court, as well as every other citizen, has the right and it is his duty, to submit charges to the authorities in whom is vested the power to remove judicial officers for any conduct or act of a judicial officer that tends to show a violation of his duties, or would justify an inference that he is false to his trust, or has improperly administered the duties devolved upon him; and such charges to the tribunal, if based upon reasonable inferences, will be encouraged, and the person making them protected. ... While we recognize the inherent right of an attorney in a case decided against him, or the right of the Public generally, to criticise the decisions of the courts, or the reasons announced for them, the habit of criticising the motives of judicial officers in the performance of their official duties, when the proceeding is not against the officers whose acts or motives are criticised, tends to subvert the confidence of the community in the courts of justice and in the administration of justice; and when such charges are made by officers of the courts, who are bound by their duty to protect the administration of justice, the attorney making such charges is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:

I accepted the decision in this case, however, with patience, barring possible temporary observations more or less vituperative and finally concluded, that, as my clients were foreigners, it might have been expecting too much to look for a decision in their favor against a widow residing here.
The Supreme Court of Alabama declared that:

... the expressions above set out, not only transcend the bounds of propriety and privileged criticism, but are an unwarranted attack, direct, or by insinuation and innuendo, upon the motives and integrity of this
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court, and make out a prima facie case of improper conduct upon the part of a lawyer who holds a license from this court and who is under oath to demean himself with all good fidelity to the court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the Court. 8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a newspaper an article in which he impugned the motives of the court and its members to try a case, charging the court of having arbitrarily and for a sinister purpose undertaken to suspend the writ of habeas corpus. The Court suspended the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one most subversive of the public good, if the conduct of such members does not measure up to the requirements of the law itself, as well as to the ethics of the profession. ... The right of free speech and free discussion as to judicial determination is of prime importance under our system and ideals of government. No right thinking man would concede for a moment that the best interest to private citizens, as well as to public officials, whether he labors in a judicial capacity or otherwise, would be served by denying this right of free speech to any individual. But such right does not have as its corollary that members of the bar who are sworn to act honestly and honorably both with their client and with the courts where justice is administered, if administered at all, could ever properly serve their client or the public good by designedly misstating facts or carelessly asserting the law. Truth and honesty of purpose by members of the bar in such discussion is necessary. The health of a municipality is none the less impaired by a polluted water supply than is the health of the thought of a community toward the judiciary by the filthy wanton, and malignant misuse of members of the bar of the confidence the public, through its duly established courts, has reposed in them to deal with the affairs of the private individual, the protection of whose rights he lends his strength and money to maintain the judiciary. For such conduct on the part of the members of the bar the law itself demands retribution not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit by an attorney in a pending action using in respect to the several judges the terms criminal corrupt, and wicked conspiracies,," "criminal confederates," "colossal and confident insolence," "criminal prosecution," "calculated brutality," "a corrupt deadfall," and similar phrases, was considered conduct unbecoming of a member of the bar, and the name of the erring lawyer was ordered stricken from the roll of attorneys. 10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed that greater latitude should be allowed in case of criticism of cases finally adjudicated than in those pending. This lawyer wrote a personal letter to the Chief Justice of the Supreme Court of Minnesota impugning both the intelligence and the integrity of the said Chief Justice and his associates in the decisions of certain appeals in which he had been attorney for the defeated litigants. The letters were published in a newspaper. One of the letters contained this paragraph:
You assigned it (the property involved) to one who has no better right to it than the burglar to his plunder. It seems like robbing a widow to reward a fraud, with the court acting as a fence, or umpire, watchful and vigilant that the widow got no undue advantage. ... The point is this: Is a proper motive for the decisions discoverable, short of assigning to the court emasculated intelligence, or a constipation of morals and faithlessness to duty? If the state bar association, or a committee chosen from its rank, or the faculty of the University Law School, aided by the researches of its hundreds of bright, active students, or if any member of the court, or any other person, can formulate a statement of a correct motive for the decision, which shall not require fumigation before it is stated, and quarantine after it is made, it will gratify every right-minded citizen of the state to read it.
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The Supreme Court of Minnesota, in ordering the suspension of the attorney for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional misconduct in sending to the Chief Justice the letter addressed to him. This was done, as we have found, for the very purpose of insulting him and the other justices of this court; and the insult was so directed to the Chief Justice personally because of acts done by him and his associates in their official capacity. Such a communication, so made, could never subserve any good purpose. Its only effect in any case would be to gratify the spite of an angry attorney and humiliate the officers so assailed. It would not and could not ever enlighten the public in regard to their judicial capacity or integrity. Nor was it an exercise by the accused of any constitutional right, or of any privilege which any reputable attorney, uninfluenced by passion, could ever have any occasion or desire to assert. No judicial officer, with due regard to his position, can resent such an insult otherwise than by methods sanctioned by law; and for any words, oral or written, however abusive, vile, or indecent, addressed secretly to the judge alone, he can have no redress in any action triable by a jury. "The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the sending by the accused of this letter to the Chief Justice was wholly different from his other acts charged in the accusation, and, as we have said, wholly different principles are applicable thereto. The conduct of the accused was in every way discreditable; but so far as he exercised the rights of a citizen, guaranteed by the Constitution and sanctioned by considerations of public policy, to which reference has been made, he was immune, as we hold, from the penalty here sought to be enforced. To that extent his rights as a citizen were paramount to the obligation which he had assumed as an officer of this court. When, however he proceeded and thus assailed the Chief Justice personally, he exercised no right which the court can recognize, but, on the contrary, willfully violated his obligation to maintain the respect due to courts and judicial officers. "This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their official acts." Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And there appears to be no distinction, as regards the principle involved, between the indignity of an assault by an attorney upon a judge, induced by his official act, and a personal insult for like cause by written or spoken words addressed to the judge in his chambers or at his home or elsewhere. Either act constitutes misconduct wholly different from criticism of judicial acts addressed or spoken to others. The distinction made is, we think entirely logical and well sustained by authority. It was recognized in Ex parte McLeod supra. While the court in that case, as has been shown, fully sustained the right of a citizen to criticise rulings of the court in actions which are ended, it held that one might be summarily punished for assaulting a judicial officer, in that case a commissioner of the court, for his rulings in a cause wholly concluded. "Is it in the power of any person," said the court, "by insulting or assaulting the judge because of official acts, if only the assailant restrains his passion until the judge leaves the building, to compel the judge to forfeit either his own self-respect to the regard of the people by tame submission to the indignity, or else set in his own person the evil example of punishing the insult by taking the law in his own hands? ... No high-minded, manly man would hold judicial office under such conditions." That a communication such as this, addressed to the Judge personally, constitutes professional delinquency for which a professional punishment may be imposed, has been directly decided. "An attorney who, after being defeated in a case, wrote a personal letter to the trial justice, complaining of his conduct and reflecting upon his integrity as a justice, is guilty of misconduct and will be disciplined by the court." Matter of Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the accused attorney had addressed a sealed letter to a justice of the City Court of New York, in which it was stated, in reference to his decision: "It is not law; neither is it common sense. The result is I have been robbed of 80." And it was decided that, while such conduct was not a contempt under the state, the matter should be "called to the attention of the Supreme Court, which has power to discipline the attorney." "If," says the court, "counsel learned in the law are permitted by writings leveled at the heads of judges, to charge them with ignorance, with unjust rulings, and with robbery, either as principals or accessories, it will not be long before the general public may feel that they may redress their fancied grievances in like manner, and thus
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the lot of a judge will be anything but a happy one, and the administration of justice will fall into bad repute." The recent case of Johnson v. State (Ala.) 44 South. 671, was in this respect much the same as the case at bar. The accused, an attorney at law, wrote and mailed a letter to the circuit judge, which the latter received by due course of mail, at his home, while not holding court, and which referred in insulting terms to the conduct of the judge in a cause wherein the accused had been one of the attorneys. For this it was held that the attorney was rightly disbarred in having "willfully failed to maintain respect due to him [the judge] as a judicial officer, and thereby breached his oath as an attorney." As recognizing the same principle, and in support of its application to the facts of this case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed. 214; Beene v. State, 22 Ark. 149; Commonwealth v. Dandridge, 2 Va. Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186 Pa. 270, Atl. 481. Our conclusion is that the charges against the accused have been so far sustained as to make it our duty to impose such a penalty as may be sufficient lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension for 18 months for publishing a letter in a newspaper in which he accused a judge of being under the sinister influence of a gang that had paralyzed him for two years. 12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable attack against the official acts and decisions of a judge constitutes "moral turpitude." There, the attorney was disbarred for criticising not only the judge, but his decisions in general claiming that the judge was dishonest in reaching his decisions and unfair in his general conduct of a case. 13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after the trial of cases, criticising the court in intemperate language. The invariable effect of this sort of propaganda, said the court, is to breed disrespect for courts and bring the legal profession into disrepute with the public, for which reason the lawyer was disbarred. 14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a case, prepared over a period of years vicious attacks on jurists. The Oklahoma Supreme Court declared that his acts involved such gross moral turpitude as to make him unfit as a member of the bar. His disbarment was ordered, even though he expressed an intention to resign from the bar. The teaching derived from the above disquisition and impressive affluence of judicial pronouncements is indubitable: Post-litigation utterances or publications, made by lawyers, critical of the courts and their judicial actuations, whether amounting to a crime or not, which transcend the permissible bounds of fair comment and legitimate criticism and thereby tend to bring them into disrepute or to subvert public confidence in their integrity and in the orderly administration of justice, constitute grave professional misconduct which may be visited with disbarment or other lesser appropriate disciplinary sanctions by the Supreme Court in the exercise of the prerogatives inherent in it as the duly constituted guardian of the morals and ethics of the legal fraternity. Of course, rarely have we wielded our disciplinary powers in the face of unwarranted outbursts of counsel such as those catalogued in the above-cited jurisprudence. Cases of comparable nature have generally been disposed of under the power of courts to punish for contempt which, although resting on different bases and calculated to attain a different end, nevertheless illustrates that universal abhorrence of such condemnable practices.
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A perusal of the more representative of these instances may afford enlightenment. 1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his motion for reconsideration as "absolutely erroneous and constituting an outrage to the rigths of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts requires. The reason for this is that respect for the courts guarantees the stability of their institution. Without such guaranty, said institution would be resting on a very shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements made disclosed
... an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceeded in utter disregard of the laws, the rights to the parties, and 'of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press Freedom Law, reaching to, the imprisonment for contempt of one Angel Parazo, who, invoking said law, refused to divulge the source of a news item carried in his paper, caused to be published in i local newspaper a statement expressing his regret "that our High Tribunal has not only erroneously interpreted said law, but it is once more putting in evidence the incompetency or narrow mindedness of the majority of its members," and his belief that "In the wake of so many blunders and injustices deliberately committed during these last years, ... the only remedy to put an end to go much evil, is to change the members of the Supreme Court," which tribunal he denounced as "a constant peril to liberty and democracy" and "a far cry from the impregnable bulwark of justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary." He there also announced that one of the first measures he would introduce in then forthcoming session of Congress would have for its object the complete reorganization of the Supreme Court. Finding him in contempt, despite his avowals of good faith and his invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be published in the press, the respondent does not merely criticize or comment on the decision of the Parazo case, which was then and still is pending consideration by this Court upon petition of Angel Parazo. He not only intends to intimidate the members of this Court with the presentation of a bill in the next Congress, of which he is one of the members, reorganizing the Supreme Court and reducing the number of Justices from eleven, so as to change the members of this Court which decided the Parazo case, who according to his statement, are incompetent and narrow minded, in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. But the respondent also attacks the honesty and integrity of this Court for the apparent purpose of bringing the Justices of this Court into disrepute and degrading the administration. of justice ... . To hurl the false charge that this Court has been for the last years committing deliberately so many blunders and injustices, that is to say, that it has been deciding in favor of Que party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower ,or degrade the administration of justice by this Court. The Supreme Court of the Philippines is,
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under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts, Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that

... an attorney as an officer of the court is under special obligation to be respectful in his conduct and communication to the courts; he may be removed from office or stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce Enrile, et al., supra, where counsel charged this Court with having "repeatedly fallen" into ,the pitfall of blindly adhering to its previous "erroneous" pronouncements, "in disregard of the law on jurisdiction" of the Court of Industrial Relations, our condemnation of counsel's misconduct was unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed in the motion for reconsideration, implications there are which inescapably arrest attention. It speaks of one pitfall into which this Court has repeatedly fallen whenever the jurisdiction of the Court of Industrial Relations comes into question. That pitfall is the tendency of this Court to rely on its own pronouncements in disregard of the law on jurisdiction. It makes a sweeping charge that the decisions of this Court, blindly adhere to earlier rulings without as much as making any reference to and analysis of the pertinent statute governing the jurisdiction of the industrial court. The plain import of all these is that this Court is so patently inept that in determining the jurisdiction of the industrial court, it has committed error and continuously repeated that error to the point of perpetuation. It pictures this Court as one which refuses to hew to the line drawn by the law on jurisdictional boundaries. Implicit in the quoted statements is that the pronouncements of this Court on the jurisdiction of the industrial court are not entitled to respect. Those statements detract much from the dignity of and respect due this Court. They bring into question the capability of the members and some former members of this Court to render justice. The second paragraph quoted yields a tone of sarcasm which counsel labelled as "so called" the "rule against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other cases brevity, need not now be reviewed in detail.
18
which, in the interest of
Of course, a common denominator underlies the aforecited cases all of them involved contumacious statements made in pleadings filed pending litigation. So that, in line with the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only against scurrilous remarks or malicious innuendoes while a court mulls over a pending case and not after the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the thrust of a contempt charge by his studied emphasis that the remarks for which he is now called upon to account were made only after this Court had written finis to his appeal. This is of no moment. The rule that bars contempt after a judicial proceeding has terminated, has lost much of its vitality. For sometime, this was the prevailing view in this jurisdiction. The first stir for a modification thereof, however, came when, in People vs. Alarcon, 20 the then Chief Justice Manuel V. Moran dissented with the holding of the majority, speaking thru Justice Jose P. Laurel, which upheld the rule abovePage 181 of 327
adverted to. A complete disengagement from the settled rule was later to be made in In re Brillantes, 21 a contempt proceeding, where the editor of the Manila Guardian was adjudged in contempt for publishing an editorial which asserted that the 1944 Bar Examinations were conducted in a farcical manner after the question of the validity of the said examinations had been resolved and the case closed. Virtually, this was an adoption of the view expressed by Chief Justice Moran in his dissent in Alarcon to the effect that them may still be contempt by publication even after a case has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is 'summarily punishable by courts. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. What is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first there is no contempt where there is no action pending, as there is no decision which might in any way be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. Courts would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his statements and actuations now under consideration were made only after the judgment in his client's appeal had attained finality. He could as much be liable for contempt therefor as if it had been perpetrated during the pendency of the said appeal. More than this, however, consideration of whether or not he could be held liable for contempt for such post litigation utterances and actuations, is here immaterial. By the tenor of our Resolution of November 17, 1967, we have confronted the situation here presented solely in so far as it concerns Atty. Almacen's professional identity, his sworn duty as a lawyer and his fitness as an officer of this Court, in the exercise of the disciplinary power the morals inherent in our authority and duty to safeguard and ethics of the legal profession and to preserve its ranks from the intrusions of unprincipled and unworthy disciples of the noblest of callings. In this inquiry, the pendency or nonpendency of a case in court is altogether of no consequence. The sole objective of this proceeding is to preserve the purity of the legal profession, by removing or suspending a member whose misconduct has proved himself unfit to continue to be entrusted with the duties and responsibilities belonging to the office of an attorney. Undoubtedly, this is well within our authority to do. By constitutional mandate, 22 our is the solemn duty, amongst others, to determine the rules for admission to the practice of law. Inherent in this prerogative is the corresponding authority to discipline and exclude from the practice of law those who have proved themselves unworthy of continued membership in the Bar. Thus
The power to discipline attorneys, who are officers of the court, is an inherent and incidental power in courts of record, and one which is essential to an orderly discharge of judicial functions. To deny its existence is equivalent to a declaration that the conduct of attorneys towards courts and clients is not subject to restraint. Such a view is without support in any respectable authority, and cannot be tolerated. Any court having the right to admit attorneys to practice and in this state that power is vested in this courthas the inherent right, in the exercise of a sound judicial discretion to exclude them from practice. 23
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This, because the admission of a lawyer to the practice of law is a representation to all that he is worthy of their confidence and respect. So much so that
... whenever it is made to appear to the court that an attorney is no longer worthy of the trust and confidence of the public and of the courts, it becomes, not only the right, but the duty, of the court which made him one of its officers, and gave him the privilege of ministering within its bar, to withdraw the privilege. Therefore it is almost universally held that both the admission and disbarment of attorneys are judicial acts, and that one is admitted to the bar and exercises his functions as an attorney, not as a matter of right, but as a privilege conditioned on his own behavior and the exercise of a just and sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above being a mere inherent or incidental power. It has been elevated to an express mandate by the Rules of Court. 25 Our authority and duty in the premises being unmistakable, we now proceed to make an assessment of whether or not the utterances and actuations of Atty. Almacen here in question are properly the object of disciplinary sanctions. The proffered surrender of his lawyer's certificate is, of course, purely potestative on Atty. Almacen's part. Unorthodox though it may seem, no statute, no law stands in its way. Beyond making the mere offer, however, he went farther. In haughty and coarse language, he actually availed of the said move as a vehicle for his vicious tirade against this Court. The integrated entirety of his petition bristles with vile insults all calculated to drive home his contempt for and disrespect to the Court and its members. Picturing his client as "a sacrificial victim at the altar of hypocrisy," he categorically denounces the justice administered by this Court to be not only blind "but also deaf and dumb." With unmitigated acerbity, he virtually makes this Court and its members with verbal talons, imputing to the Court the perpetration of "silent injustices" and "short-cut justice" while at the same time branding its members as "calloused to pleas of justice." And, true to his announced threat to argue the cause of his client "in the people's forum," he caused the publication in the papers of an account of his actuations, in a calculated effort ;to startle the public, stir up public indignation and disrespect toward the Court. Called upon to make an explanation, he expressed no regret, offered no apology. Instead, with characteristic arrogance, he rehashed and reiterated his vituperative attacks and, alluding to the Scriptures, virtually tarred and feathered the Court and its members as inveterate hypocrites incapable of administering justice and unworthy to impose disciplinary sanctions upon him. The virulence so blatantly evident in Atty. Almacen's petition, answer and oral argumentation speaks for itself. The vicious language used and the scurrilous innuendoes they carried far transcend the permissible bounds of legitimate criticism. They could never serve any purpose but to gratify the spite of an irate attorney, attract public attention to himself and, more important of all, bring ;this Court and its members into disrepute and destroy public confidence in them to the detriment of the orderly administration of justice. Odium of this character and texture presents no redeeming feature, and completely negates any pretense of passionate commitment to the truth. It is not a whit less than a classic example of gross misconduct, gross violation of the lawyer's oath and gross transgression of the Canons of Legal Ethics. As such, it cannot be allowed to go unrebuked. The way for the exertion of our disciplinary powers is thus laid clear, and the need therefor is unavoidable. We must once more stress our explicit disclaimer of immunity from criticism. Like any other Government entity in a viable democracy, the Court is not, and should not be, above criticism. But a critique of the Court must be intelligent and discriminating, fitting to its high function as the court of
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last resort. And more than this, valid and healthy criticism is by no means synonymous to obloquy, and requires detachment and disinterestedness, real qualities approached only through constant striving to attain them. Any criticism of the Court must, possess the quality of judiciousness and must be informed -by perspective and infused by philosophy. 26 It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the premises, that, as Atty. Almacen would have appear, the members of the Court are the "complainants, prosecutors and judges" all rolled up into one in this instance. This is an utter misapprehension, if not a total distortion, not only of the nature of the proceeding at hand but also of our role therein. Accent should be laid on the fact that disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not and does not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of its officers. 27 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. 28 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. 29 In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any tirade against the Court as a body is necessarily and inextricably as much so against the individual members thereof. But in the exercise of its disciplinary powers, the Court acts as an entity separate and distinct from the individual personalities of its members. Consistently with the intrinsic nature of a collegiate court, the individual members act not as such individuals but. only as a duly constituted court. Their distinct individualities are lost in the majesty of their office. 30 So that, in a very real sense, if there be any complainant in the case at bar, it can only be the Court itself, not the individual members thereof as well as the people themselves whose rights, fortunes and properties, nay, even lives, would be placed at grave hazard should the administration of justice be threatened by the retention in the Bar of men unfit to discharge the solemn responsibilities of membership in the legal fraternity. Finally, the power to exclude persons from the practice of law is but a necessary incident of the power to admit persons to said practice. By constitutional precept, this power is vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot unilaterally renounce jurisdiction legally invested upon it. 31 So that even if it be conceded that the members collectively are in a sense the aggrieved parties, that fact alone does not and cannot disqualify them from the exercise of that power because public policy demands that they., acting as a Court, exercise the power in all cases which call for disciplinary action. The present is such a case. In the end, the imagined anomaly of the merger in one entity of the personalities of complainant, prosecutor and judge is absolutely inexistent. Last to engage our attention is the nature and extent of the sanctions that may be visited upon Atty. Almacen for his transgressions. As marked out by the Rules of Court, these may range from mere suspension to total removal or disbarment. 32 The discretion to assess under the circumstances the imposable sanction is, of course, primarily addressed to the sound discretion of the Court which,
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being neither arbitrary and despotic nor motivated by personal animosity or prejudice, should ever be controlled by the imperative need that the purity and independence of the Bar be scrupulously guarded and the dignity of and respect due to the Court be zealously maintained. That the misconduct committed by Atty. Almacen is of considerable gravity cannot be overemphasized. However, heeding the stern injunction that disbarment should never be decreed where a lesser sanction would accomplish the end desired, and believing that it may not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen will realize that abrasive language never fails to do disservice to an advocate and that in every effervescence of candor there is ample room for the added glow of respect, it is our view that suspension will suffice under the circumstances. His demonstrated persistence in his misconduct by neither manifesting repentance nor offering apology therefor leave us no way of determining how long that suspension should last and, accordingly, we are impelled to decree that the same should be indefinite. This, we are empowered to do not alone because jurisprudence grants us discretion on the matter 33 but also because, even without the comforting support of precedent, it is obvious that if we have authority to completely exclude a person from the practice of law, there is no reason why indefinite suspension, which is lesser in degree and effect, can be regarded as falling outside of the compass of that authority. The merit of this choice is best shown by the fact that it will then be left to Atty. Almacen to determine for himself how long or how short that suspension shall last. For, at any time after the suspension becomes effective he may prove to this Court that he is once again fit to resume the practice of law. ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as he is hereby, suspended from the practice of law until further orders, the suspension to take effect immediately. Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor General and the Court of Appeals for their information and guidance. Concepcion,. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Teehankee, Barredo and Villamor JJ., concur. Fernando, J., took no part.
WICKER V. ARCANGEL, G.R. NO. 112869, JAN. 29, 1996 SECOND DIVISION [G.R. No. 112869. January 29, 1996] KELLY R. WICKER and ATTY. ORLANDO A. RAYOS, petitioners, vs. HON. PAUL T. ARCANGEL, as Presiding Judge of the RTC, Makati, Branch 134, respondent. DECISION MENDOZA, J.:
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This is a petition for certiorari, assailing the orders dated December 3, 1993 and December 17, 1993 of respondent Judge Paul T. Arcangel of the Regional Trial Court, Branch 134 of Makati, finding petitioners guilty of direct contempt and sentencing each of them to suffer imprisonment for five (5) days and to pay a fine of P100.00. The antecedent facts are as follows: Kelly Wicker, with his wife Wynee Dieppe and the Tectonics Asia Architects and Engineering Co., brought suit in the Regional Trial Court of Makati against the LFS Enterprises, Inc. and others, for the annulment of certain deeds by which a house and lot at Forbes Park, which the plaintiffs claimed they had purchased, was allegedly fraudulently titled in the name of the defendant LFS Enterprises and later sold by the latter to codefendant Jose Poe. The case, docketed as Civil Case No. 14048, was assigned to Branch 134 formerly presided over by Judge Ignacio Capulong who later was replaced by respondent Judge Paul T. Arcangel. It appears that on November 18, 1993, Wickers counsel, Atty. Orlando A. Rayos, filed a motion seeking the inhibition of respondent judge from the consideration of the case.i[1] The motion alleged in pertinent part: 1. That before the Acting Presiding Judge took over, defendant LFS Enterprises, Inc. was able to maneuver the three (3) successive postponements for the presentation for cross-examination of Mrs. Remedios Porcuna on her 10 August 1992 Affidavit, but eventually, she was not presented; 2. Meantime, Judge [Ignacio] Capulong who had full grasp of this case was eased out of his station. In one hearing, the Acting Presiding Judge had not yet reported to his station and in that set hearing, counsel for defendant LFS Enterprises, Inc. who must have known that His Honor was not reporting did not likewise appear while other counsels were present; 3. Plaintiffs have information that the Acting Presiding Judge was personally recruited from the south by Atty. Benjamin Santos and/or his wife, Atty. Ofelia Calcetas-Santos, one time member of the Judicial and Bar Council, against whom plaintiff Kelly R. Wicker filed Administrative Case No. 3796, and although said case was dismissed, nevertheless, plaintiffs feel that it was the reason for Atty. Ofelia Calcetas-Santos relief; 4. Plaintiffs have reason to doubt the partiality and integrity of His Honor and to give a fighting chance for plaintiffs to prove their case, since this will be the last case to recover the partnership property, plaintiffs feel that His Honor inhibit himself and set this case for re-raffle; 5. This move finds support in the Rules of Court and jurisprudence that in the first instance that a litigant doubts the partiality and integrity of the Presiding Judge, he should immediately move for his inhibition. The motion was verified by Kelly Wicker. Considering the allegations to be malicious, derogatory and contemptuous, respondent judge ordered both counsel and client to appear before him on November 26, 1993 and to show cause why they should not be cited for contempt of court.i[2] In a pleading entitled Opposition to and/or Comment to Motion to Cite for Direct Contempt Directed Against Plaintiff Kelly R. Wicker and his Counsel, Atty. Rayos claimed that the allegations in the motion did not necessarily express his views because he merely signed the motion in a representative capacity, in other words, just lawyering, for Kelly Wicker, who said in a note to him that a young man possibly employed by the
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Court had advised him to have the case reraffled, when the opposing counsel Atty. Benjamin Santos and the new judge both failed to come for a hearing, because their absence was an indication that Atty. Santos knew who the judge may be and when he would appear. Wickers sense of disquiet increa sed when at the next two hearings, the new judge as well as Atty. Santos and the latters witness, Mrs. Remedios Porcuna, were all absent, while the other counsels were present.i[3] Finding petitioners explanation unsatisfactory, respondent judge, in an o rder dated December 3, 1993, held them guilty of direct contempt and sentenced each to suffer imprisonment for five (5) days and to pay a fine of P100.00. Petitioners filed a motion for reconsideration, which respondent judge denied for lack of merit in his order of December 17, 1993. In the same order respondent judge directed petitioners to appear before him on January 7, 1994 at 8:30 a.m. for the execution of their sentence. In their petitioni[4] before this Court, Kelly Wicker and Atty. Orlando A. Rayos contend that respondent judge committed a grave abuse of his discretion in citing them for contempt. They argue that when a person, impelled by justifiable apprehension and acting in a respectful manner, asks a judge to inhibit himself from hearing his case, he does not thereby become guilty of contempt. In his comment,i[5] respondent judge alleges that he took over as Acting Presiding Judge of the Regional Trial Court of Makati, Branch 134 by virtue of Administrative Order No. 154-93 dated September 2, 1993 of this Court and not because, as petitioners alleged, he was personally recruited from the South by Atty. Santos and/or his wife, Atty. Ofelia Calcetas-Santos; that he assumed his new office on October 11, 1993 and started holding sessions on October 18, 1993; that when all male personnel of his court were presented to petitioner Kelly Wicker he failed to pick out the young man who was the alleged source of the remarks prompting the filing of the motion for inhibition; that he was not vindictive and that he in fact refrained from implementing the execution of his order dated December 3, 1993 to enable petitioners to avail themselves of all possible remedies; that after holding petitioners in contempt, he issued an order dated December 8, 1993 inh ibiting himself from trying Civil Case No. 14048; that Atty. Rayos claim that he was just lawyering and acting as the vehicle or mouthpiece of his client is untenable because his (Atty. Rayos) duties to the court are more important than those which he owes to his client; and that by tendering their profuse apologies in their motion for reconsideration of the December 3, 1993 order, petitioners acknowledged the falsity of their accusations against him; and that the petitioners have taken inconsistent positions as to who should try Civil Case No. 14048 because in their Motion for Inhibition dated November 18, 1993 they asked that the case be reraffled to another sala of the RTC of Makati, while in their petition dated November 29, 1993, which they filed with the Office of Court Administrator, petitioners asked that Judge Capulong be allowed to continue hearing the case on the ground that he had a full grasp of the case. In reply to the last allegation of respondent judge, petitioners claim that although they wanted a reraffle of the case, it was upon the suggestion of respondent judge himself that they filed the petition with the Court Administrator for the retention of Judge Capulong in the case. What is involved in this case is an instance of direct contempt, since it involves a pleading allegedly containing derogatory, offensive or malicious statements submitted to the court or judge in which the proceedings are pending, as distinguished from a pleading filed in another case. The former has been held to be equivalent to misbehavior committed in the presence of or so near a court or judge as to interrupt the proceedings before the same within the meaning of Rule 71, 1 of the Rules of Court and, therefore, direct contempt. i[6]
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It is important to point out this distinction because in case of indirect or constructive contempt, the contemnor may be punished only [a]fter charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel, whereas in case of dire ct contempt, the respondent may be summarily adjudged in contempt. Moreover, the judgment in cases of indirect contempt is appealable, whereas in cases of direct contempt only judgments of contempt by MTCs, MCTCs and MeTCs are appealable. i[7] Consequently, it was unnecessary in this case for respondent judge to hold a hearing. Hence even if petitioners are right about the nature of the case against them by contending that it involves indirect contempt, they have no ground for complaint since they were afforded a hearing before they were held guilty of contempt. What is important to determine now is whether respondent judge committed grave abuse of discretion in holding petitioners liable for direct contempt. We begin with the words of Justice Malcolm that the 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.i[8] 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.i[9] Consistent with the foregoing principles and based on the abovementioned facts, the Court sustains Judge Arcangels finding that petitioners are guilty of contempt. A reading of the allegations in petitioners motion for inhibition, particularly the following paragraphs thereof: 2. Meantime, Judge Capulong who had full grasp of this case was eased out of his station. In one hearing, the Acting Presiding Judge had not yet reported to his station and in that set hearing, counsel for defendant LFS Enterprises, Inc. who must have known that His Honor was not reporting did not likewise appear while other counsels were present; 3. Plaintiffs have information that the Acting Presiding Judge was personally recruited from the south by Atty. Benjamin Santos and/or his wife, Atty. Ofelia Calcetas-Santos, one time member of the Judicial and Bar Council, against whom plaintiff Kelly R. Wicker filed Administrative Case No. 3796, and although said case was dismissed, nevertheless, plaintiffs feel that it was the reason for Atty. Ofelia Calcetas-Santos relief; leads to no other conclusion than that respondent judge was beholden to the opposing counsel in the case, Atty. Benjamin Santos, to whom or to whose wife, the judge owed his transfer to the RTC of Makati, which necessitated easing out the former judge to make room for such transfer. These allegations are derogatory to the integrity and honor of respondent judge and constitute an unwarranted criticism of the administration of justice in this country. They suggest that lawyers, if they are well connected, can manipulate the assignment of judges to their advantage. The truth is that the assignments of Judges Arcangel and Capulong were made by this Court, by virtue of Administrative Order No. 154-93, precisely in the interest of an efficient administration of justice and pursuant to Sec. 5 (3), Art. VIII o f the Constitution.i[10] This is a matter of record which could have easily been verified by Atty. Rayos. After all, as he claims, he deliberated for two months whether or not to file the offending motion for inhibition as his client allegedly asked him to do. In extenuation of his own liability, Atty. Rayos claims he merely did what he had been bidden to do by his client of whom he was merely a mouthpiece. He was just lawyering and he cannot be gagged, even if the
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allegations in the motion for the inhibition which he prepared and filed were false since it was his client who verified the same. To be sure, what Wicker said in his note to Atty. Rayos was that he had been told by an unidentified young man, whom he thought to be employed in the court, that it seemed the opposing counsel, Atty. Santos, knew who the replacement judge was, because Atty. Santos did not show up in court on the same days the new judge failed to come. It would, therefore, appear that the other allegations in the motion that respondent judge had been personally recruited by the opposing counsel to replace Judge Capulong who had been eased out were Atty. Rayos and not Wickers. Atty. Rayos is thus understating his part in the preparation of the motion for inhibition. Atty. Rayos, however, cannot evade responsibility for the allegations in question. As a lawyer, he is not just an instrument of his client. His client came to him for professional assistance in the representation of a cause, and while he owed him whole-souled devotion, there were bounds set by his responsibility as a lawyer which he could not overstep.i[11] Even a hired gun cannot be excused for what Atty. Rayos stated in the motion. Based on Canon 11 of the Code of Professional Responsibility, Atty. Rayos bears as much responsibility for the contemptuous allegations in the motion for inhibition as his client. Atty. Rayos duty to the courts is not secondary to that of his client. The Code of Professional Responsibility enjoins him to observe and maintain the respect due to the courts and to judicial officers and [to] insist on similar conduct by othersi[12] and not [to] attribute to a Judge motives not supported by the record or have materiality to the case.i[13] After the respondent judge had favorably responded to petitioners profuse apologies and indicated that he would let them off with a fine, without any jail sentence, petitioners served on respondent judge a copy of their instant petition which prayed in part that Respondent Judge Paul T. Arcangel be REVERTED to his former station. He simply cannot do in the RTC of Makati where more complex cases are heared (sic) unlike in Davao City. If nothing else, this personal attack on the judge only serves to confirm the contumacious attitude, a flouting or arrogant belligerence first evident in petitioners motion for inhibition belying their protestations of good faith. Petitioners cite the following statement in Austria v. Masaquel:i[14] Numerous cages there have been where judges, and even members of the Supreme Court, were asked to inhibit themselves from trying, or from participating in the consideration of a case, but scarcely were the movants punished for contempt, even if the grounds upon which they based their motions for disqualification are not among those provided in the rules. It is only when there was direct imputation of bias or prejudice, or a stubborn insistence to disqualify the judge, done in a malicious, arrogant, belligerent and disrespectful manner, that movants were held in contempt of court. It is the second sentence rather than the first that applies to this case. Be that as it may, the Court believes that consistent with the rule that the power to cite for contempt must be exercised for preservative rather than vindictive principle we think that the jail sentence on petitioners may be dispensed with while vindicating the dignity of the court. In the case of petitioner Kelly Wicker there is greater reason for doing so considering that the particularly offending allegations in the motion for inhibition do not appear to have come from him but were additions made by Atty. Rayos. In addition, Wicker is advanced in years (80) and in failing health (suffering from angina), a fact Judge Arcangel does not dispute. Wicker may
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have indeed been the recipient of such a remark although he could not point a court employee who was the source of the same. At least he had the grace to admit his mistake both as to the source and truth of said information. It is noteworthy Judge Arcangel was also willing to waive the imposition of the jail sentence on petitioners until he came upon petitioners description of him in the instant petition as a judge who cannot make the grade in the RTC of Makati, where complex cases are being filed. In response to this, he cited the fact that the Integrated Bar of the Philippines chose him as one of the most outstanding City Judges and Regional Trial Court Judges in 1979 and 1988 respectively and that he is a 1963 graduate of the U.P. College of Law. In Ceniza v. Sebastian,i[15] which likewise involved a motion for inhibition which described the judge corrupt, the Court, while finding counsel guilty of direct contempt, removed the jail sentence of 10 days imposed by the trial court for the reason that Here, while the words were contumacious, it is hard to resist the conclusion, considering the background of this occurrence that respondent Judge in imposing the ten-day sentence was not duly mindful of the exacting standard [of] preservation of the dignity of his office not indulging his sense of grievance sets the limits of the authority he is entitled to exercise. It is the view of the Court that under the circumstances the fine imposed should be increased to P500.00. The same justification also holds true in this case. WHEREFORE, the order of December 3, 1993 is MODIFIED by DELETING the sentence of imprisonment for five (5) days and INCREASING the fine from P 100.00 to P200.00 for each of the petitioners. SO ORDERED. Regalado (Chairman), Romero, and Puno, JJ., concur.
Canon 12
NUNEZ V. ATTY. RICAFORT, A.C. NO. 5054, MAY 29, 2002 EN BANC A.C. No. 5054 May 29, 2002
SOLEDAD NUEZ, Represented by ANANIAS B. CO, Attorney-in-Fact for Complainant, petitioner, vs. ATTY. ROMULO RICAFORT, respondent. RESOLUTION PER CURIAM:
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This is an administrative complaint filed on 21 April 1999 by Soledad Nuez, a septuagenarian represented by her attorney-in-fact Ananias B. Co, Jr., seeking the disbarment of respondent Atty. Romulo Ricafort on the ground of grave misconduct. From the documents submitted by the complainant, it appears that sometime in October 1982 she authorized respondent to sell her two parcels of land located in Legazpi City for P40,000. She agreed to give respondent 10 percent of the price as commission. Respondent succeeded in selling the lots, but despite complainants repeated demands, he did not turn over to her the proceeds of the sale. This forced complainant to file against respondent and his wife an action for a sum of money before the Regional Trial Court of Quezon City. The case was docketed as Civil Case No. Q-93-15052. For his failure to file an answer, respondent was declared in default and complainant was required to present exparte her evidence. On 29 September 1993, the court rendered its decision (Annex "C" of the Complaint) ordering respondent herein to pay complainant the sum of P16,000 as principal obligation, with interest thereon at the legal rate from the date of the commencement of the action, i.e., 8 March 1993, until it is fully paid, and to pay the costs of suit.1wphi1.nt Respondent and his wife appealed from the decision to the Court of Appeals. However, the appeal was dismissed for failure to pay the required docket fee within the reglementary period despite notice. On 23 October 1995 complainant filed in Civil Case No. Q-93-15052 a motion for the issuance of an alias writ of execution, which the court granted on 30 October 1995. The next day, the alias writ of execution was issued (Annex "B" of Complaint). It appears that only a partial satisfaction of the P16,000 judgment was made, leaving P13,800 thereof unsatisfied. In payment for the latter, respondent issued four postdated checks drawn against his account in China Banking Corporation, Legazpi City. Upon presentment, however, the checks were dishonored because the account against which they were drawn was closed (Annexes "D" and "E" of Complaint). Demands for respondent to make good the checks fell on deaf ears, thus forcing complainant to file four criminal complaints for violation of B.P. Blg. 22 before the Metropolitan Trial Court of Quezon City (Annexes "F," "G," "H" and "I" of the Complaint). In the "Joint Affidavit" of respondent and his wife filed with the Office of the Prosecutor, Quezon City, respondent admitted having drawn and issued said four postdated checks in favor of complainant. Allegedly believing in good faith that said checks had already been encashed by complainant, he subsequently closed his checking account in China Banking Corporation, Legazpi City, from which said four checks were drawn. He was not notified that the checks were dishonored. Had he been notified, he would have made the necessary arrangements with the bank. We required respondent to comment on the complaint. But he never did despite our favorable action on his three motions for extension of time to file the comment. His failure to do so compelled complainant to file on 10 March 2000 a motion to cite respondent in contempt on the ground that his strategy to file piecemeal motions for extension of time to submit the comment "smacks of a delaying tactic scheme that is unworthy of a member of the bar and a law dean." In our resolution of 14 June 2000, we noted the motion for contempt; considered respondent to have waived the filing of a comment; and referred this case to the Integrated Bar of the Philippine (IBP) for investigation, report and recommendation or decision within ninety days from notice of the resolution.
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In her Report and Recommendation dated 12 September 2000, Investigating Commissioner Atty. Milagros V. San Juan concluded that respondent had no intention to "honor" the money judgment against him in Civil Case No. Q-93-15052 as can be gleaned from his (1) issuance of postdated checks; (2) closing of the account against which said checks were drawn; and (3) continued failure to make good the amounts of the checks. She then recommends that respondent be declared "guilty of misconduct in his dealings with complainant" and be suspended from the practice of law for at least one year and pay the amount of the checks issued to the complainant. In its Resolution No. XV-2001-244 of 27 October 2001, the Board of Governors of the IBP approved and adopted Atty. San Juans Report and Recommendation. 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 respondents grave misconduct and notorious dishonest y. There is no need to stretch ones 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. Respondents claim of good faith in closing his account because he thought compl ainant 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 (Busios 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). Respondents act of issuing bad checks in satisfaction of the alias writ of execution for money jud gment rendered by the trial court was a clear attempt to defeat the ends of justice. His failure to make good the checks
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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. To further demonstrate his very low regard for the courts and judicial processes, respondent even had the temerity of making a mockery of our generosity to him. We granted his three motions for extension of time to file his comment on the complaint in this case. Yet, not only did he fail to file the comment, he as well did not even bother to explain such failure notwithstanding our resolution declaring him as having waived the filing of the comment. To the Highest Court of the land, respondent openly showed a high degree of irresponsibility amounting to willful disobedience to its lawful orders (Thermochem Incorporated v. Naval, 344 SCRA 76, 82 [2000]; Sipin-Nabor v. Atty. Baterina, Adm. Case No. 4073, 28 June 2001). Respondent then knowingly and willfully violated Rules 12.04 and 12:03 of Canon 12 of the Code of Professional Responsibility, which respectively provide that lawyers should avoid any action that would unduly delay a case, impede the execution of a judgment or misuse court processes; and that lawyers, after obtaining extensions of time to file pleadings, memoranda or briefs, should not let the period lapse without submitting the same or offering an explanation for their failure to do so.1wphi1.nt The penalty of suspension "for at least one (1) year" imposed by the Board of Governors of the IBP is both vague and inadequate. A suspension may either be indefinite or for a specific duration. Besides, under the circumstances of this case a suspension for a year is plainly very light and inadequate. For his deliberate violation or defiance of Rule 1.01 of Canon 1 and Rules 12:03 and 12:04 of Canon 12 of the Code of Professional Responsibility, coupled with his palpable bad faith and dishonesty in his dealings with the complainant, respondent deserves a graver penalty. That graver penalty is indefinite suspension from the practice of law. IN VIEW OF ALL THE FOREGOING, respondent Atty. Romulo Ricafort is hereby INDEFINITELY SUSPENDED from the practice of law, and is directed to pay complainant Soledad Nuez the amount of P13,800 within ten (10) days from notice of this resolution. This resolution shall take effect immediately. Copies thereof shall be furnished the Office of the Bar Confidant, to be appended to respondents personal record; the Office of the President; the Department of Justice; the Court of Appeals; the Sandiganbayan; and the Integrated Bar of the Philippines. The Court Administrator shall also furnish all lower courts with copies of this Resolution. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, YnaresSantiago, De Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
SANTIAGO V. ATTY. RAFANAN, A.C. NO. 6252, OCT. 5, 2004 THIRD DIVISION A.C. No. 6252 October 5, 2004
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JONAR SANTIAGO, complainant, vs. Atty. EDISON V. RAFANAN, respondent. DECISION PANGANIBAN, J.: Notaries 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. The Case and the Facts Before us is a verified Complaint1 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 1382 of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.033, Canon 54, and Canons 12.075 and 12.08 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 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
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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 respondents 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 Certifications10 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 respondents Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two oclock in the afternoon. Notices12 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 oclock in the afternoon. On the same day, June 5, 2001, complainant filed his Reply14 to the verified Answer of respondent. The latters Rejoinder was received by the CBD on July 13, 2001.15 It also received complainants Letter-Request16 to dispense with the hearings. Accordingly, it granted that request in its Order17 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. The CBD received complainants Memorandum18 on September 26, 2001. Respondent did not file any. The IBPs Recommendation On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-17219 approving and adopting the Investigating Commissioners Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation 20 of the 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."
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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 Courts Ruling We agree with the Resolution of the IBP Board of Governors. Respondents 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 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
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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 respondents clients Ernesto Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainants 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. 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 complainants 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 respondents 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;
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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. "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 lawyers 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 latters 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;
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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 version of respondent that is more credible, considering that the latters 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. SO ORDERED. Sandoval-Gutierrez, Corona, and Carpio Morales*, JJ., concur.
Canon 13
LANTORIA V. ATY. BUNYI, A.M. NO. 1769, JUNE 8, 1992 SECOND DIVISION
A.M. No. 1769 June 8, 1992 CESAR L. LANTORIA, complainant, vs. ATTY. IRINEO L. BUNYI, respondent.
PER CURIAM: This is an administrative complaint filed by Cesar L. Lantoria, seeking disciplinary action against respondent Irineo L. Bunyi, member of the Philippine Bar, on the ground that respondent Bunyi allegedly committed acts of "graft and corruption, dishonesty and conduct unbecoming of a member of the Integrated Bar of the Philippines, and corruption of the judge and bribery", in connection with
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respondent's handling of Civil Case Nos. 81, 83 and 88 then pending before the Municipal Court of Experanza, Agusan del Sur, presided over by Municipal Judge Vicente Galicia 1 in which respondent Bunyi was the counsel of one of the parties, namely, Mrs. Constancia Mascarinas. Respondent Bunyi alleged that Mrs. Constancia M. Mascarinas of Manila was the owner of d farm located in Esperanza, Agusan del Sur, and that herein complainant Lantoria was the manager and supervisor of said farm, receiving as such a monthly allowance. 2 It appears that the complaint in Civil Case Nos. 81, 83 and 88 sought to eject the squatters from the aforementioned farm. 3 These cases were assigned to the Municipal Court of Esperanza, Agusan del Bur, the acting municipal judge of which was the Honorable Vicente Galicia (who was at the same time the regular judge of the municipal court of Bayugan, Agusan del Sur). 4 The defendants in the mentioned civil cases were, in due course, declared in default. In relation to the same three (3) civil cases, the records of the present case show that complainant Lantoria wrote a letter to respondent Bunyi, dated 23 April 1974, which reads as follows:
Butuan City 23 April 1974 Atty. Ireneo Bunye 928 Rizal Avenue Santa Cruz, Manila Dear Atty. Bunye: xxx xxx xxx Upon informing him of your willingness to prepare the corresponding judgements (sic) on the 3 defaulted cases he said he has no objection in fact he is happy and recommended that you mail the said decisions in due time thru me to be delivered to him. xxx xxx xxx I will communicate with you from time to time for any future development. My best regards to you and family and to Mrs. Constancia Mascarinas and all. Very truly yours, (SGD.) CESAR L LANTORIA Major Inf PC (ret) Executive Director 5 On 01 June 1974, respondent Bunyi wrote to the complainant regarding the said three (3) cases, in this wise: June 1, 1974 Dear Major Lantoria,
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At last, I may say that I have tried my best to respond to the call in your several letters received, which is about the preparation of the three (3) Decisions awaited by Judge Galicia. The delay is that I have been too much occupied with my cases and other professional commitments here in Manila and nearby provinces. Not only to Mrs. Mascarinas I would say that I am so sorry but also to you. Mrs. Mascarinas has been reminding me but I always find myself at a loss to prepare these Decisions at an early date sa (sic) possible. So also with my calendar as to the dates for the next hearing of the remaining cases over there. Herewith now, you will find enclosed the three (3) Decisions against the (3) defaulted defendants. I am not sure if they will suit to satisfy Judge Galicia to sign them at once. However, it is my request to Judge Galicia, thru your kind mediation, that if the preparation of these Decisions do not suit his consideration, then I am ready and willing to accept his suggestions or correction to charge or modify them for the better. And to this effect, kindly relay at once what he is going to say or thinks if he signs them readily and please request for each copy for our hold. xxx xxx xxx Please excuse this delay, and thanks for your kind assistance in attending to our cases there. Regards to you and family and prayer for your more vigor and success. Brotherly yours, (SGD.) IRINEO L. BUNYI 6 Counsel It also appears that respondent Bunyi wrote an earlier letter to complainant Lantoria, dated 04 March 1974, the contents of which read as follows: 928 Rizal Ave., Sta. Cruz, Manila March 4, 1974 Dear Major Lantoria, This is an additional request, strictly personal and confidential. Inside the envelope addressed to Judge Vicente C. Galicia, are the Decisions and Orders, which he told me to prepare and he is going to sign them. If you please, deliver the envelope to him as if you have no knowledge and information and that you have not opened it. Unless, of course, if the information comes from him. But, you can inquire from him if there is a need to wait from his words about them, or copies to be furnished me, after he signs them, it could be made thru you personally, to expedite receiving those copies for our hold. According to him, this envelope could be delivered to him at his residence at No. 345 M. Calo St., Butuan City, during week end. or, at Bayugan if you happen to go there, if he is not in Butuan City. Thanking You for your kind attention and favor. Truly yours, (SGD.) L. BUNYI 7 Three years after, that is, on 11 April 1977, complainant filed with this Court the present administrative case against respondent Bunyi, predicated mainly on the above-quoted three (3) letters dated 04 March, 23 April and 01 June, 1974. Complainant contends that respondent won the said three (3) cases because to (respondent) was the one who unethically prepared the decisions rendered therein, and that the preparation by respondent of said decisions warranted disciplinary action against him.
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By way of answer to the complaint, respondent, in a motion to dismiss 8 the administrative complaint, admitted the existence of the letter of 01 June 1974, but explained the contents thereof as follows: xxx xxx xxx b) In the second place, the said letter of June 1, 1974, is self-explanatory and speaks for itself, that if ever the same was written by the Respondent, it was due to the insistence of the Complainant thru his several letters received, that the decisions in question be drafted or prepared for Judge Galicia, who considered such preparation as a big help to him, because he was at that time holding two (2) salas one as being the regular Municipal Judge of Bayugan and the other, as the acting Judge of Esperanza, both of Agusan del Sur, with many pending cases and it was to the benefit of the Complainant that the early disposition of the cases involved would not suffer inconsiderable delay. But, the intention to draft or prepare the decisions in question was never spawned by the Respondent. Instead, it came from the under-standing between the Judge and the complainant who, from his several letters, had demonstrated so much interest to eject at once the squatters from the farm he was entrusted to manage. Furthermore, the Complainant's conclusion that the said decisions were lutong macao is purely non-sense as it is without any factual or legal basis. He himself knew that Judge Galicia asked for help in the drafting of said decisions as at any rate they were judgments by default, the defendants lost their standing in court when they were declared in default for failure to file their answers and to appear at the place and time set for hearing thereof (See first paragraph, letter of June 1, 1974) c) Thirdly, in the same letter, the decisions as prepared were in the form of drafts, as in fact, the letter mentioned subject to suggestion or correction to change or modify for the better by Judge Galicia (Second paragraph, Ibid); d) Fourthly, in the some letter, Responding (sic) even apologized for the delay in sending the same to the Complainant and expressed his gratitude for his assistance in attending to the cases involved (Last paragraph, Ibid.) In its resolution dated 28 November 1977, this Court referred the case to the Solicitor General for investigation, report and recommendation. 9 On 21 July 1980, the Solicitor General submitted his report to the Court, with the following averments, to wit: 1) that the case was set for hearing on April 12, September 29, and December 18, 1978, but in all said scheduled hearings only respondent Bunyi appeared; 2) that in the hearing of 16 January 1979, both respondent and complainant appeared; 3) that at the same hearing, the Solicitor General reported the following development Atty. Mercado submitted a letter of complainant dated January 16, 1979 sworn to before the investigating Solicitor, praying that the complaint be considered withdrawn, dropped or dismissed on the ground that complainant "could hardly substantiate" his charges and that he is "no longer interested to prosecute" the same. For his part, respondent manifested that he has no objection to the withdrawal of the complaint against him. At the same time, he presented complainant Lantoria as a witness are elicited testimony to the effect that complainant no longer has in his possession the original of the letters attached to his basic complaint, and hence, he was not prepared to prove his charges. 10 (emphasis supplied) In his aforesaid report, the Solicitor General found as follows: a) that the letters of respondent Bunyi (dated 4, March and 1 June 1974), addressed to complainant, showed that respondent had indeed prepared the draft of the decisions in Civil Case Nos. 81, 83 and 88 of the Municipal Court of Esperanza, Agusan del Sur, which he submitted to Judge Vicente Galicia thru the complainant; b) that those letters indicated that respondent had previous communications with Judge Galicia regarding the preparation of the decisions; c) that the testimony of complainant to the effect that he had lost the original of said letters, and complainant's withdrawal of the complaint in the case at bar are of no moment, as respondent Bunyi, and his motion to dismiss filed with the Supreme Court, admitted that he prepared the draft of the decisions in the said civil cases, and be affirmed the existence of the letters. Hence, in his report, the Solicitor General found that respondent is guilty of highly unethical and unprofessional conduct for failure to perform his duty, as an officer of the court, to help promote the independence of the judiciary and to refrain from engaging in acts which would influence judicial determination of a litigation in which he is counsel. 11 The Solicitor
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General recommended that respondent be suspended from the practice of law for a period of one (1) year. He filed with the Court the corresponding complaint against respondent. In his answer 12 to the complaint filed by the Solicitor General, respondent manifested that in the future he would be more careful in observing his duties as a lawyer, and in upholding the provisions of the canons of professional ethics. On 10 December 1980, the date set by this Court for the hearing of this case, the hearing was postponed until further notice. On 9 March 1981, respondent filed a manifestation 13 alleging that no hearing was as yet set in the case since the last setting on 10 December 1980, and he requested that the next hearing be not set until after six (6) months when be expected to return from the United States of America where he would visit his children and at the same time have a medical check-up. On 28 October 1981, the date set by this Court for bearing in this case, respondent Bunyi and the Solicitor General appeared, and respondent was directed to submit his memorandum. Respondent Bunyi filed his memorandum on 16 November 1981. In said memorandum, 14 respondent submitted that although he prepared the draft of the decisions in the civil cases, he did not offer Judge Galicia any gift or consideration to influence the Judge in allowing him to prepare the 15 draft decisions. He also offered his apology to the Court for all the improprieties which may have resulted from his preparation of the draft decisions. We agree with the observation of the Solicitor General that the determination of the merits of the instant case should proceed notwithstanding complainant's withdrawal of his complaint in the case, the respondent himself having admitted that the letters in question truly exist, and that he even asked for an apology from the Court, for whatever effects such letters may have had on his duty as a lawyer. With the admission by respondent of the existence of the letters upon which the present administrative complaint is based, the remaining issue to be resolved is the effect of the acts complained of on respondent's duty both as a lawyer and an officer of the Court. We find merit in the recommendation of the Solicitor General that respondent, by way of disciplinary action, deserves suspension from the practice of law. The subject letters indeed indicate that respondent had previous communication with Judge Galicia regarding the preparation of the draft decisions in Civil Case Nos. 81, 83, and 88, and which he in fact prepared. Although nothing in the records would show that respondent got the trial court judge's consent to the said preparation for a favor or consideration, the acts of respondent nevertheless amount to conduct unbecoming of a lawyer and an officer of the Court. Clearly, respondent violated Canon No. 3 of the Canons of Professional Ethics (which were enforced at the time respondent committed the acts admitted by him), which provides as follows: 3. Attempts to exert personal influence on the court Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations of the parties, subject both the judge and the lawyer to misconstructions of motive and should be avoided. A lawyer should not communicate or argue privately with the judge as to the merits of a pending cause and deserves rebuke and denunciation for any device or attempt to gain from a judge special personal consideration or favor. A self-respecting independence in the discharge of professional duty, without denial or diminution of the courtesy and respect due the judge's station, is the only proper foundation for cordial personal and official relations between bench and bar. In the new Code of Professional Responsibility No. 13 and Rule 13.01, which read:
16
a lawyer's attempt to influence the court is rebuked, as shown in Canon
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.
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Rule 13.01 A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges. Therefore, this Court finds respondent guilty of unethical practice in attempting to influence the court where he had pending civil case. 17 WHEREFORE, respondent Atty. Irineo L. Bunyi is hereby SUSPENDED from the practice of law for a period of one (1) year from the date of notice hereof. Let this decision be entered in the bar records of the respondent and the Court Administrator is directed to inform the different courts of this suspension. SO ORDERED. Narvasa C.J., Paras, Padilla, Regalado and Nocon, JJ., concur.
ESTRADA V. SANDIGANBAYAN, G.R. NOS. 159486-88, NOVEMBER 25, 2003 EN BANC [G.R. No. 159486-88. November 25, 2003] PRESIDENT JOSEPH EJERCITO ESTRADA, petitioner, vs. THE HONORABLE SANDIGANBAYAN [SPECIAL DIVISION], HON. MINITA CHICO-NAZARIO, HON. EDILBERTO SANDOVAL, HON. TERESITA LEONARDO-DE CASTRO, and THE PEOPLE OF THE PHILIPPINES, respondents. RESOLUTION PER CURIAM: On 23 September 2003, this Court issued its resolution in the above-numbered case; it read: The case for consideration has been brought to this Court via a Petition for Certiorari under Rule 65 of the Rules of Court filed by Joseph Ejercito Estrada, acting through his counsel Attorney Alan F. Paguia, against the Sandiganbayan, et al. The Petition prays 1. That Chief Justice Davide and the rest of the members of the Honorable Court disqualify themselves from hearing and deciding this petition; 2. That the assailed resolutions of the Sandiganbayan be vacated and set aside; and 3. That Criminal Cases No. 26558, No. 26565 and No. 26905 pending before the Sandiganbayan be dismissed for lack of jurisdiction. Attorney Alan F. Paguia, speaking for petitioner, asserts that the inhibition of the members of the Supreme Court from hearing the petition is called for under Rule 5.10 of the Code of Judicial Conduct prohibiting justices or judges from participating in any partisan political activity which proscription, according to him, the justices have violated by attending t he EDSA 2 Rally and by authorizing the assumption of Vice -President Gloria Macapagal Arroyo to the Presidency in violation of the 1987 Constitution. Petitioner contends that the justices have thereby prejudged a case that would assail the legality of the act taken by President Arroyo. The
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subsequent decision of the Court in Estrada v. Arroyo (353 SCRA 452 and 356 SCRA 108) is, petitioner states, a patent mockery of justice and due process. Attorney Paguia first made his appearance for petitioner when he filed an Omnibus Motion on 19 May 2003, before the Sandiganbayan, asking that the appointment of counsels de officio (sic) be declared functus officio and that, being the now counsel de parte, he be notified of all subsequent proceedings in Criminal Cases No. 26558, No. 26565 and No. 26905 pending therein. Finally, Attorney Paguia asked that all the foregoing criminal cases against his client be dismissed. During the hearing of the Omnibus Motion on 30 May 2003, petitioner presented to the court several portions of the book, entitled Reforming the Judiciary, written by Justice Artemio P anganiban, to be part of the evidence for the defense. On 9 June 2003, petitioner filed a motion pleading, among other things, that a) x x x President Estrada be granted the opportunity to prove the truth of the statements contained in Justice Artemio Panganibans book, REFORMING THE JUDICIARY, in relation to the prejudgment committed by the Supreme Court justices against President Estrada in the subject case/s of Estrada v. Arroyo, 353 SCRA 452 and 356 SCRA 108; and, A subpoena ad testificandum and duces tecum be issued to Justice Artemio Panganiban, Justice Antonio Carpio, Justice Renato Corona, Secretary Angelo Reyes of the Department of National Defense, Vice President Gloria Macapagal-Arroyo, Senator Aquilino Pimentel, Jr., and Chief Justice Hilario Davide, Jr. for them to testify and bring whatever supporting documents they may have in relation to their direct and indirect participation in the proclamation of Vice President Gloria Macapagal Arroyo on January 20, 2001, as cited in the book of Justice Panganiban, including the material events that led to that proclamation and the ruling/s in the Estrada vs. Arroyo, supra. (Rollo, pp. 67.)
b)
The truth referred to in paragraph a) of the relief sought in the motion of petitioner pertains to what he claims should have been included in the resolution of the Sandiganbayan; viz: The request of the movant is simply for the Court to include in its Joint Resolution the TRUTH of the acts of Chief Justice Davide, et al., last January 20, 2001 in: a) going to EDSA 2; b) authorizing the proclamation of Vice-President Arroyo as President on the ground of permanent disability even without proof of compliance with the corresponding constitutional conditions, e.g., written declaration by either the President or majority of his cabinet; and c) actually proclaiming Vice-President Arroyo on that same ground of permanent disability. It is patently unreasonable for the Court to refuse to include these material facts which are obviously undeniable. Besides, it is the only defense of President Estrada. (Petition, Rollo, pp. 13 -14.)
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On 2 July 2003, the Sandiganbayan issued an order denying the foregoing motion, as well as the motion to dismiss, filed by petitioner. Forthwith, petitioner filed a Mosyong Pangrekonsiderasyon of the foregoing order. According to Attorney Paguia, during the hearing of his Mosyong Pangrekonsiderasyon on 11 June 2003, the three justices of the Special Division of the Sandiganbayan made manifest their bias and partiality against his client. Thus, he averred, Presiding Justice Minita V. Chico-Nazario supposedly employed foul and disrespectful language when she blurted out, Magmumukha naman kaming gago, (Rollo, p. 13.) and Justice Teresita Leonardo-De Castro characterized the motion as insignificant even before the prosecution could file its comments or opposition thereto, (Rollo, p. 12.) remarking in open court that to grant Estradas motion would result in chaos and disorder. (Ibid.) Prompted by the alleged bias and partial attitude of the Sandiganbayan justices, Attorney Paguia filed, on 14 July 2003, a motion for their disqualification. On 31 July 2003, petitioner received the two assailed resolutions, i.e., the resolution (Promulgated on 30 July 2003.) of 28 July 2003, denying petitioners motion for reconsideration of 6 July 2003; viz: WHEREFORE, premises considered, accused-movant Joseph Ejercito Estradas Mosyong Pangrekonsiderasyon (Na tumutukoy sa Joint Resolution ng Hulyo 2, 2003) dated July 6, 2003 is DENIED for lack of merit. (Rollo, p. 37.) and the resolution (Promulgated on 30 July 2003.) of 25 July 2003, denying petitioners motion for disqualification of 14 July 2003; viz: WHEREFORE, prescinding from all the foregoing, the Court, for want of merit, hereby DENIES th e Motion for Disqualification. (Rollo, p. 48.) The instant petition assailing the foregoing orders must be DISMISSED for gross insufficiency in substance and for utter lack of merit. The Sandiganbayan committed no grave abuse of discretion, an indispensable requirement to warrant a recourse to the extraordinary relief of petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. On the one hand, petitioner would disclaim the authority and jurisdiction of the members of this tribunal and, on the other hand, he would elevate the petition now before it to challenge the two resolutions of the Sandiganbayan. He denounces the decision as being a patent mockery of justice and due process. Attorney Pagula went on to state thatThe act of the public officer, if LAWFUL, is the act of the public office. But the act of the public officer, if UNLAWFUL, is not the act of the public office. Consequently, the act of the justices, if LAWFUL, is the act of the Supreme Court. But the act of the justices, if UNLAWFUL, is not the act of the Supreme Court. It is submitted that the Decision in ESTRADA vs. ARROYO being patently unlawful in view of Rule 5.10 of the CODE OF JUDICIAL CONDUCT, is not the act of the Supreme Court but is merely the wrong or trespass of those individual Justices who falsely spoke and acted in the name of the Supreme Court. (Urbano vs. Chavez, 183 SCRA [347]). Furthermore, it would seem absurd to allow the Justices to use the name of the Supreme Court as a shield for their UNLAWFUL act. (Petition, Rollo, p. 11.) Criticism or comment made in good faith on the correctness or wrongness, soundness or unsoundness, of a decision of the Court would be welcome for, if well-founded, such reaction can enlighten the court and contribute to the correction of an error if committed. (In Re Sotto, 82 Phil 595.) The ruling in Estrada v. Arroyo, being a final judgment, has long put to end any question pertaining to the legality of the ascension of Arroyo into the presidency. By reviving the issue on the validity of the assumption of Mme. Gloria Macapagal-Arroyo to the presidency, Attorney Paguia is vainly seeking to breathe life into the carcass of a long dead issue.
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Attorney Paguia has not limited his discussions to the merits of his clients case wi thin the judicial forum; indeed, he has repeated his assault on the Court in both broadcast and print media. Rule 13.02 of the Code of Professional Responsibility prohibits a member of the bar from making such public statements on any pending case tending to arouse public opinion for or against a party. By his acts, Attorney Paguia may have stoked the fires of public dissension and posed a potentially dangerous threat to the administration of justice. It is not the first time that Attorney Paguia has exhib ited similar conduct towards the Supreme Court. In a letter, dated 30 June 2003, addressed to Chief Justice Hilario G. Davide, Jr., and Associate Justice Artemio V. Panganiban, he has demanded, in a clearly disguised form of forum shopping, for several advisory opinions on matters pending before the Sandiganbayan. In a resolution, dated 08 July 2003, this Court has strongly warned Attorney Alan Paguia, on pain of disciplinary sanction, to desist from further making, directly or indirectly, similar submissions to this Court or to its Members. But, unmindful of the well-meant admonition to him by the Court, Attorney Paguia appears to persist on end. WHEREFORE, the instant petition for certiorari is DISMISSED, and the Court hereby orders Attorney Alan Paguia, counsel for petitioner Joseph Ejercito Estrada, to SHOW CAUSE, within ten days from notice hereof, why he should not be sanctioned for conduct unbecoming a lawyer and an officer of the Court. On 10 October 2003, Atty. Paguia submitted his compliance with the show-cause order. In a three-page pleading, Atty. Paguia, in an obstinate display of defiance, repeated his earlier claim of political partisanship against the members of the Court. Canon 5.10 of the Code of Judicial Conduct, which Atty. Paguia has tirelessly quoted to give some semblance of validity for his groundless attack on the Court and its members, provides Rule 5.10. A judge is entitled to entertain personal views on political questions. But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities. Section 79(b) of the Omnibus Election Code defines the term partisan political activities; the law states: The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate. (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
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It should be clear that the phrase partisan political activities, in its statutory context, relates to acts designed to cause the success or the defeat of a particular candidate or candidates who have filed certificates of candidacy to a public office in an election. The taking of an oath of office by any incoming President of the Republic before the Chief Justice of the Philippines is a traditional official function of the Highest Magistrate. The assailed presence of other justices of the Court at such an event could be no different from their appearance in such other official functions as attending the Annual State of the Nation Address by the President of the Philippines before the Legislative Department. The Supreme Court does not claim infallibility; it will not denounce criticism made by anyone against the Court for, if well-founded, can truly have constructive effects in the task of the Court, but it will not countenance any wrongdoing nor allow the erosion of our peoples faith in the judicial system, let alone, by those who have been privileged by it to practice law in the Philippines. Canon 11 of the Code of Professional Responsibility mandates that the lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartiality, integrity, and authority of the members of the Court, Atty. Paguia has only succeeded in seeking to impede, obstruct and pervert the dispensation of justice. The attention of Atty. Paguia has also been called to the mandate of Rule 13.02 of the Code of Professional Responsibility prohibiting a member of the bar from making such public statements on a case that may tend to arouse public opinion for or against a party. Regrettably, Atty. Paguia has persisted in ignoring the Courts well-meant admonition. On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia wrote to say What is the legal effect of that violation of President Estradas right to due proc ess of law? It renders the decision in Estrada vs. Arroyo unconstitutional and void. The rudiments of fair play were not observed. There was no fair play since it appears that when President Estrada filed his petition, Chief Justice Davide and his fellow justices had already committed to the other party - GMA - with a judgment already made and waiting to be formalized after the litigants shall have undergone the charade of a formal hearing. After the justices had authorized the proclamation of GMA as president, can they be expected to voluntarily admit the unconstitutionality of their own act? Unrelentingly, Atty. Paguia has continued to make public statements of like nature. The Court has already warned Atty. Paguia, on pain of disciplinary sanction, to become mindful of his grave responsibilities as a lawyer and as an officer of the Court. Apparently, he has chosen not to at all take heed. WHEREFORE, Attorney Alan Paguia is hereby indefinitely suspended from the practice of law, effective upon his receipt hereof, for conduct unbecoming a lawyer and an officer of the Court. Let copies of this resolution be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines and all courts of the land through the Office of the Court Administrator. SO ORDERED.
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Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Carpio, J., no part.
Canon 14
SANTIAGO V. FOJAS, ADM. CASE NO. 4103, SEPTEBER 7, 1995 FIRST DIVISION
A.C. No. 4103 September 7, 1995 VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F. MANAS, and TRINIDAD NORDISTA, complainants, vs. ATTY. AMADO R. FOJAS, respondent.
DAVIDE JR., J.: In their letter of 8 September 1993, the complainants, former clients of the respondent, pray that the latter be disbarred for "malpractice, neglect and other offenses which may be discovered during the actual investigation of this complaint." They attached thereto an Affidavit of Merit wherein they specifically allege:
1. That we are Defendants-Appellates [sic] in the Court of Appeals Case No. CA-G.N. CV No. 38153 of which to our surprise lost unnecessarily the aforesaid Petition [ sic]. A close perusal of the case reveals the serious misconduct of our attorney on record, Atty. Amado Fojas tantamount to malpractice and negligence in the performance of his duty obligation to us, to defend us in the aforesaid case. That the said attorney without informing us the reason why and riding high on the trust and confidence we repose on him either abandoned, failed to act accordingly, or seriously neglected to answer the civil complaint against us in the sala of Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so that we were deduced [sic] in default. 2. That under false pretenses Atty. Fojas assured us that everything was in order. That he had already answered the complaint so that in spite of the incessant demand for him to give us a copy he continued to deny same to us. Only to disclose later that he never answered it after all because according to him he was a very busy man. Please refer to Court of Appeals decision dated August 17, 1993. 3. That because of Atty. Amado Foja's neglect and malpractice of law we lost the Judge Capulong case and our appeal to the Court of Appeals. So that it is only proper that Atty. Fojas be disciplined and disbarred in the practice of his profession.
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In his Comment, the respondent admits his "mistake" in failing to file the complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured by his filing of a motion for reconsideration, which was unfortunately denied by the court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the complainants because it was based on the expulsion of the plaintiff therein from the Far Eastern University Faculty Association (FEUFA) which was declared unlawful in the final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable judgment in the Regional Trial Court is not imputable to [his] mistake but rather imputable to the merits of the case, i.e., the decision in the Expulsion case wherein defendants (complainants herein) illegally removed from the union (FEUFA) membership Mr. Paulino Salvador. . . ." He further claims that the complainants filed this case to harass him because he refused to share his attorney's fees in the main labor case he had handled for them. The respondent then prays for the dismissal of this complaint for utter lack of merit, since his failure to file the answer was cured and, even granting for the sake of argument that such failure amounted to negligence, it cannot warrant his disbarment or suspension from the practice of the law profession. The complainants filed a Reply to the respondent's Comment. Issues having been joined, we required the parties to inform us whether they were willing to submit this case for decision on the basis of the pleadings they have filed. In their separate compliance, both manifested in the affirmative. The facts in this case are not disputed. Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor, respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador. The latter then commenced with the Department of Labor and Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to declare illegal his expulsion from the union. In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal Salvador's expulsion and directed the union and all its officers to reinstate Salvador's name in the roll of union members with all the rights and privileges appurtenant thereto. This resolution was affirmed in toto by the Secretary of Labor and Employment. Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of Valenzuela, Metro Manila, Branch 172, a complaint against the complainants herein for actual, moral, and exemplary damages and attorney's fees, under Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case No. 3526-V-91. As the complainants' counsel, the respondent filed a motion to dismiss the said case on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter in NCR-OD-M-90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss. The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered the dismissal of the case. Upon Salvador's motion for reconsideration, however, it reconsidered the order of dismissal, reinstated the case, and required the complainants herein to file their answer within a nonextendible period of fifteen days from notice.
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Instead of filing an answer, the respondent filed a motion for reconsideration and dismissal of the case. This motion having been denied, the respondent filed with this Court a petition for certiorari, which was later referred to the Court of Appeals and docketed therein as CA-G.R. SP No. 25834. Although that petition and his subsequent motion for reconsideration were both denied, the respondent still did not file the complainants' answer in Civil Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared in default, and Salvador was authorized to present his evidence ex-parte. The respondent then filed a motion to set aside the order of default and to stop the ex-parte reception of evidence before the Clerk of Court, but to no avail. Thereafter, the trial court rendered a decision ordering the complainants herein to pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00 as attorney's fees; plus cost of suit. The complainants, still assisted by the respondent, elevated the case to the Court of Appeals, which, however, affirmed in toto the decision of the trial court. The respondent asserts that he was about to appeal the said decision to this Court, but his services as counsel for the complainants and for the union were illegally and unilaterally terminated by complainant Veronica Santiago. The core issue that presents itself is whether the respondent committed culpable negligence, as would warrant disciplinary action, in failing to file for the complainants an answer in Civil Case No. 3526-V-91 for which reason the latter were declared in default and judgment was rendered against them on the basis of the plaintiff's evidence, which was received ex-parte. 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, 1 subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him. 2 He must serve the client with competence and diligence, 3 and champion the latter's cause with wholehearted fidelity, care, and devotion. 4 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 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. 5 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. 6 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. 7 The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-91. He justifies his failure to do so in this wise:
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[I]n his overzealousness to question the Denial Order of the trial court, 8 [he] instead, thru honest mistake and excusable neglect, filed a PETITION FOR CERTIORARI with the Honorable Court, docketed as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No. 100983 was referred, dismissed the petition, he again "inadvertently" failed to file an answer "[d]ue to honest mistake and because of his overzealousness as stated earlier. . . . " In their Reply, the complainants allege that his failure to file an answer was not an honest mistake but was "deliberate, malicious and calculated to place them on the legal disadvantage, to their damage and prejudice" for, as admitted by him in his motion to set aside the order of default, his failure to do so was "due to volume and pressure of legal work." 9 In short, the complainants want to impress upon this Court that the respondent has given inconsistent reasons to justify his failure to file an answer. We agree with the complainants. In his motion for reconsideration of the default order, the respondent explained his non-filing of the required answer by impliedly invoking forgetfulness occasioned by a large volume and pressure of legal work, while in his Comment in this case he attributes it to honest mistake and excusable neglect due to his overzealousness to question the denial order of the trial court. Certainly, "overzealousness" on the one hand and "volume and pressure of legal work" on the other are two distinct and separate causes or grounds. The first presupposes the respondent's full and continuing awareness of his duty to file an answer which, nevertheless, he subordinated to his conviction that the trial court had committed a reversible error or grave abuse of discretion in issuing an order reconsidering its previous order of dismissal of Salvador's complaint and in denying the motion to reconsider the said order. The second ground is purely based on forgetfulness because of his other commitments. Whether it be the first or the second ground, the fact remains that the respondent did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of diligence was compounded by his erroneous belief that the trial court committed such error or grave abuse of discretion and by his continued refusal to file an answer even after he received the Court of Appeals' decision in the certiorari case. There is no showing whatsoever that he further assailed the said decision before this Court in a petition for review under Rule 45 of the Rules of Court to prove his claim of overzealousness to challenge the trial court's order. Neither was it shown that he alleged in his motion to lift the order of default that the complainants had a meritorious defense. 10 And, in his appeal from the judgment by default, he did not even raise as one of the errors of the trial court either the impropriety of the order of default or the court's grave abuse of discretion in denying his motion to lift that order. Pressure and large volume of legal work provide no excuse for the respondent's inability to exercise due diligence in the performance of his duty to file an answer. Every case a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance and whether he accepts it for a fee or for free. All told, the respondent committed a breach of Canon 18 of the Code of Professional Responsibility which requires him to serve his clients, the complainants herein, with diligence and, more specifically,
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Rule 18.03 thereof which provides: "A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable." The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91 was in fact a "losing cause" for the complainants since the claims therein for damages were based on the final decision of the Med-Arbiter declaring the complainants' act of expelling Salvador from the union to be illegal. This claim is a mere afterthought which hardly persuades us. If indeed the respondent was so convinced of the futility of any defense therein, he should have seasonably informed the complainants thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly provides:
A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understanding the prospects of the case.
Then too, if he were unconvinced of any defense, we are unable to understand why he took all the trouble of filing a motion to dismiss on the grounds of res judicata and lack of jurisdiction and of questioning the adverse ruling thereon initially with this Court and then with the Court of Appeals, unless, of course, he meant all of these to simply delay the disposition of the civil case. Finally, the complainants were not entirely without any valid or justifiable defense. They could prove that the plaintiff was not entitled to all the damages sought by him or that if he were so, they could ask for a reduction of the amounts thereof. We do not therefore hesitate to rule that the respondent is not free from any blame for the sad fate of the complainants. He is liable for inexcusable negligence. WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and ADMONISHED to be, henceforth, more careful in the performance of his duty to his clients. SO ORDERED. Padilla, Bellosillo, Kapunan and Hermosisima Jr., JJ., concur.
Canon 15
NORTHWESTERN UNIVERSITY, INC. V. ARQUILLO, A.C. NO. 6632, AUGUST 2, 2005 EN BANC [A.C. No. 6632. August 2, 2005] NORTHWESTERN UNIVERSITY, INC., and BEN A. NICOLAS, complainants, vs. Atty. MACARIO D. ARQUILLO, respondent. DECISION
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PANGANIBAN, J.: Representing conflicting interests is prohibited by the Code of Professional Responsibility. Unless all the affected clients written consent is given after a full disclosure of all relevant facts, attorneys guilty of representing conflicting interests shall as a rule be sanctioned with suspension from the practice of law. The Case and the Facts This administrative case stems from a sworn Letter-Complaint[1] filed with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) by Ben A. Nicolas, acting for himself and on behalf of Northwestern University, Inc. In that Letter-Complaint, Atty. Macario D. Arquillo was charged with deceit, malpractice, gross misconduct and/or violation of his oath as attorney by representing conflicting interests. The material averments of the Complaint are summarized by the IBP-CBD as follows: Herein [c]omplainants, Northwestern University, Inc. and Mr. Ben A. Nicolas, accuses (sic) herein [r]espondent, Atty. Macario D. Arquillo, of engaging in conflicting interest in a case before the National Labor Relations Commission, Regional Arbitration Branch No. 1, San Fernando, La Union. Complainant alleges that in a consolidated case, herein [r]espondent appeared and acted as counsels for both complainants (eight out of the eighteen complainants therein) and respondent (one out of the ten respondents therein). In a consolidation of NLRC Cases [Nos.] 1-05-1086-97, 1-05-1087-97, 1-05-1088-97, 1-05-1091-97, 1-051092-97, 1-05-1097-97, 1-05-1109-97, 1-05-1096-97 (consolidated cases), herein [r]espondent appeared as counsel for complainants therein, Teresita A. Velasco, Gervacio A. Velasco, Mariel S. Hernando, Virginio C. Rasos, Bonifacio S. Blas, Ronald A. Daoang, Luzviminda T. Urcio and Araceli Quimoyog. In the very same consolidated case, [r]espondent was also the counsel of one of the respondents therein, Jose G. Castro. Complainants, as their evidence, submitted the Motion to Dismiss dated August 12, 1997 filed by Jose G. Castro, represented by his counsel, herein [r]espondent filed before the NLRC of San Fernando, La Union. Sixteen (16) days later or on August 28, 1997, [r]espondent filed a Complainants Consolidated Position Paper, this time representing some of the complainants in the very same consolidated case .[2] (Citations omitted) Respondent failed to file his Answer to the Complaint despite a June 24 1998 Order[3] of the IBP-CBD directing him to do so. Even after receiving five notices, he failed to appear in any of the scheduled hearings. Consequently, he was deemed to have waived his right to participate in the proceedings. Thereafter, the complainants were ordered to submit their verified position paper with supporting documents, after which the case was to be deemed submitted for decision.[4] In their Manifestation[5] dated August 30, 2004, they said that they would no longer file a position paper. They agreed to submit the case for decision on the basis of their Letter-Affidavit dated March 16, 1998, together with all the accompanying documents. Report and Recommendation of the IBP In his Report,[6] Commissioner Dennis B. Funa found respondent guilty of violating the conflict-of-interests rule under the Code of Professional Responsibility. Thus, the former recommended the latters suspension from the practice of law for a period of six (6) months.
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In Resolution No. XVI-2004-415 dated October 7, 2004, the Board of Governors of the IBP adopted the Report and Recommendation of Commissioner Funa, with the modification that the period of suspension was increased to two (2) years. On December 12, 2004, the Resolution and the records of the case were transmitted to this Court for final action, pursuant to Section 12(b) of Rule 139-B of the Rules of Court. On January 20, 2005, respondent filed a Motion for Reconsideration to set aside Resolution No. XVI-2004-415. The IBP denied the Motion. The Courts Ruling We agree with the findings of the IBP Board of Governors, but reduce the recommended period of suspension to one year. Administrative Liability of Respondent The Code of Professional Responsibility requires lawyers to observe candor, fairness and loyalty in all their dealings and transactions with their clients.[7] Corollary to this duty, lawyers shall not represent conflicting interests, except with all the concerned clients written consent, given after a full disclosure of the facts.[8] When a lawyer represents two or more opposing parties, there is a conflict of interests, the existence of which is determined by three separate tests: (1) when, in representation of one client, a lawyer is required to fight for an issue or claim, but is also duty-bound to oppose it for another client; (2) when the acceptance of the new retainer will require an attorney to perform an act that may injuriously affect the first client or, when called upon in a new relation, to use against the first one any knowledge acquired through their professional connection; or (3) when the acceptance of a new relation would prevent the full discharge of an attorneys duty to give undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness or double dealing in the performance of that duty.[9] In the present case, Atty. Macario D. Arquillo, as counsel for Respondent Jose C. Castro in NLRC Case Nos. I05-1083-97 to I-05-1109-97, filed a Motion to Dismiss those cases. Shortly thereafter, a position paper was filed by Atty. Arquillo as counsel for several complainants in consolidated NLRC Case Nos. I-05-1087-97, I05-1088-97, I-05-1091-97, I-05-1092-97, I-05-1096-97, I-05-1097-97, and I-05-1109-97. All the cases in the second set were included in the first one, for which he had filed the subject Motion to Dismiss. Furthermore, in his position paper for the complainants, Atty. Arquillo protected his other client, Respondent Jose C. Castro, in these words: 3. More than lack of valid cause for the dismissal of complainants, respondents, except Atty. Jose C. Castro and Atty. Ernesto B. Asuncion, should be made accountable for not according complainants their right to due process.[10] In his two-page Motion for Reconsideration, Atty. Arquillo claims that there was no conflict of interest in his representation of both the respondent and the complainants in the same consolidated cases, because all of them were allegedly on the same side. Attaching to the Motion the Decision of Labor Arbiter Norma C. Olegario on the consolidated NLRC cases, Atty. Arquillo theorizes that her judgment absolved Castro of personal liability for the illegal dismissal of the complainants; this fact allegedly showed that there was no conflict in the interests of all the parties concerned.
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This Court does not agree. Atty. Arquillos acts cannot be justified by the fact that, in the end, Castro was proven to be not personally liable for the claims of the dismissed employees. Having agreed to represent one of the opposing parties first, the lawyer should have known that there was an obvious conflict of interests, regardless of his alleged belief that they were all on the same side. It cannot be denied that the dismissed employees were the complainants in the same cases in which Castro was one of the respondents. Indeed, Commissioner Funa correctly enounced: As counsel for complainants, [r]espondent had the duty to oppose the Motion to Dismiss filed by Jose G. Castro. But under the circumstance, it would be impossible since [r]espondent is also the counsel of Jose G. Castro. And it appears that it was [r]espondent who prepared the Motion to Dismiss, which he should be opposing [a]s counsel of Jose G. Castro, Respondent had the duty to prove the Complaint wrong. But Respondent cannot do this because he is the counsel for the complainants. Here lies the inconsistency. The inconsistency of interests is very clear. Thus it has been noted The attorney in that situation will not be able to pursue, with vigor and zeal, the clients claim against the other and to properly represent the latter in the unrelated action, or, if he can do so, he cannot avoid being suspected by the defeated client of disloyalty or partiality in favor of the successful client. The foregoing considerations will strongly tend to deprive the relation of attorney and client of those special elements which make it one of trust and confidence[.] (Legal Ethics, Agpalo, p. 230, 4th ed.; In re De la Rosa, 21 Phil. 258)[11] An attorney cannot represent adverse interests. It is a hornbook doctrine grounded on public policy that a lawyers representation of both sides of an issue is highly improper. The proscription applies when the conflicting interests arise with respect to the same general matter, however slight such conflict may be. It applies even when the attorney acts from honest intentions or in good faith.[12] The IBP Board of Governors recommended that respondent be suspended from the practice of law for two years. Considering, however, prior rulings in cases also involving attorneys representing conflicting interests, we reduce the suspension to one (1) year.[13] WHEREFORE, Atty. Macario D. Arquillo is found GUILTY of misconduct and is hereby SUSPENDED from the practice of law for a period of one (1) year effective upon his receipt of this Decision, with a warning that a similar infraction shall be dealt with more severely in the future. SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, CarpioMorales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Corona, J., on official leave.
ARTEZUELA V. MADERAZO, A.C. NO. 4354, APRIL 22, 2002 FIRST DIVISION
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A.C. No. 4354
April 22, 2002
LOLITA ARTEZUELA, complainant, vs. ATTY. RICARTE B. MADERAZO, respondent. PUNO, J.: For his failure to meet the exacting standards of professional ethics, the Board of Governors of the Integrated Bar of the Philippines (IBP) in its Resolution of May 2, 2000 recommended the suspension from the practice of law of respondent Atty. Ricarte B. Maderazo for the period of six (6) months, with a stern warning that repetition of the same act will be dealt with more severely. Respondent allegedly represented conflicting interests in violation of Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility.1 By way of a Motion for Reconsideration,2 respondent now comes before this Court to challenge the basis of the IBP's resolution, and prays for its reversal. The factual antecedents of the case are as follows: On or about 3:00 in the early morning of December 24, 1992, Allan Echavia had a vehicular accident at Caduman St., corner H. Abellana St., Mandaue City. At the time of the accident, Echavia was driving a Ford Telstar car owned by a Japanese national named Hirometsi Kiyami, but was registered in the name of his brother-in-law, Jun Anthony Villapez. The car rammed into a small carinderia owned by complainant Lolita Artezuela.3 The destruction of the complainant's carinderia caused the cessation of the operation of her small business, resulting to her financial dislocation. She incurred debts from her relatives and due to financial constraints, stopped sending her two children to college.4 Complainant engaged the services of the respondent in filing a damage suit against Echavia, Villapez and one Bernardo Sia.5 Docketed as Civil Case No. 13666, the case was assigned to Branch 14 of the Regional Trial Court of Cebu. An Amended Complaint was thereafter filed, impleading Echavia, Kiyami and Villapez, and dropping Sia as a party-defendant.6 For his services, complainant paid the respondent the amount of Ten Thousand Pesos (P10,000.00) as attorney's fees and Two Thousand Pesos (P2,000.00) as filing fee.7 However, the case was dismissed on March 22, 1994, allegedly upon the instance of the complainant and her husband. 8 Because of the dismissal of Civil Case No. 13666, complainant filed a civil case for damages against the respondent. It was docketed as CEB-18552 and assigned to Branch 57, Regional Trial Court of Cebu City. The case was dismissed on June 12, 2001.9 On November 24, 1994, Artezuela filed before this Court a verified complaint for disbarment against the respondent. She alleged that respondent grossly neglected his duties as a lawyer and failed to represent her interests with zeal and enthusiasm. According to her, when Civil Case No. 13666 was scheduled for pre-trial conference on August 20, 1993, respondent asked for its postponement although all the parties were present. Notwithstanding complainant's persistent and repeated follow-up, respondent did not do anything to keep the case moving. He withdrew as counsel without obtaining complainant's consent. 10 Complainant also claimed that respondent engaged in activities inimical to her interests. While acting as her counsel, respondent prepared Echavia's Answer to the Amended Complaint. The said document was even
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printed in respondent's office. Complainant further averred that it was respondent who sought the dismissal of the case, misleading the trial court into thinking that the dismissal was with her consent. 11 Respondent denied the complainant's allegations and averred that he conscientiously did his part as the complainant's lawyer in Civil Case No. 13666. He withdrew as counsel because the complainant was uncooperative and refused to confer with him. He also gave several notices to the complainant and made known his intention before he filed his Manifestation to withdraw as counsel. Because of the severed relationship, the lower court, after holding a conference, decided to grant respondent's manifestation and advised the complainant to secure the services of a new lawyer. Complainant, however, refused and instead, sought the dismissal of the case.12 Respondent alleged that he sought the postponement of the Pre-Trial Conference scheduled on August 20, 1993 so that he could file the Amended Complaint. He admitted that Echavia's Answer to the Amended Complaint was printed in his office but denied having prepared the document and having acted as counsel of Echavia. He claimed that complainant requested him to prepare Echavia's Answer but he declined. Echavia, however, went back to his office and asked respondent's secretary to print the document. Respondent intimated that the complainant and Echavia have fabricated the accusations against him to compel him to pay the amount of P500,000.00.13 This Court referred the complaint to the Integrated Bar of the Philippines (IBP). The IBP-Visayas Regional Committee on Bar Discipline formed an Investigating Committee to hear the disbarment complaint. On October 6, 1999, Commissioner Gabriel T. Ingles issued a Report finding the respondent guilty of representing conflicting interests, in violation of Canon 15 and Rule 15.03 of the Code of Professional Responsibility, as well as, of Canon 6 of the Code of Professional Ethics. He recommended that the respondent be suspended from the practice of law for a period of one (1) year.14 Commissioner Ingles did not rule on the other issues. As aforesaid, the Board of Governors of the Integrated Bar of the Philippines upheld the findings of the Committee with modification only as to the penalty. Seeking reconsideration of the IBP's resolution, respondent contends that the Investigating Committee did not conduct trial; hence, he was not able to confront and examine the witnesses against him. He argues that the Investigating Committee's finding that he represented Echavia is contrary to court records and the complainant's own testimony in CEB-18552. He also casts doubt on the credibility of the Investigating Committee to render just and fair recommendations considering that the Investigating Commissioner and the respondent are counseladversaries in another case, Civil Case No. R-33277. Finally, he questions the imposition of a six-month suspension, which he claims to be harsh considering that his private practice is his only source of income.15 After carefully examining the records, as well as the applicable laws and jurisprudence on the matter, this Court is inclined to uphold the IBP's resolution.1wphi1.nt In administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings, as "actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies."16 Due process is fulfilled when the parties were given reasonable opportunity to be heard and to submit evidence in support of their arguments. 17
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In the case at bar, records show that respondent repeatedly sought the postponement of the hearings, prompting the Investigating Commissioner to receive complainant's evidence ex parte and to set the case for resolution after the parties have submitted their respective memorandum. Hence: "The records show that this is already the third postponement filed by respondent namely December 12, 1996 (sic), January 3, 1996 and April 1, 1996. The Commission for the last time, will cancel today's hearing and can no longer tolerate any further postponement. Notify respondent by telegram for the hearing for (sic) April 22, 1996 at 2:00 P.M. Said hearing is intransferable in character. In the meantime, complainant affirmed her complaint and likewise her witness, Allan Echavia, also affirmed the contents of his affidavit and further stated that he had executed the same and understood the contents thereof."18 It is by his own negligence that the respondent was deemed to have waived his right to cross-examine the complainant and her witness. He cannot belatedly ask this Court to grant new trial after he has squandered his opportunity to exercise his right. Respondent's contention that the finding of the Investigating Committee was contrary to the records and the complainant's own admission in CEB-18552 is without merit. It is true that Atty. Aviola was Echavia's counselof-record in Civil Case No. 13666 as evidenced by the certification from the clerk of court, 19 and as admitted by the complainant in CEB-18552, viz: "ATTY. MADERAZO: (To witness- ON CROSS) Q: Madam witness, you mentioned that the defendant in this case was the counsel of Allan Echavia as early as August 20, 1993, wherein you learned for the first time of this fact when you say he is counsel of Allan Echavia. (sic) You mean he is the counsel of record of Allan Echavia in the Civil Case before Judge Dacudao? Is that what you mean? A: What I learned was that Atty. Alviola was the counsel of Allan Echavia in the case before Judge Dacudao but I heard Atty. Maderazo telling Allan Echavia not to admit that Atty. Maderazo is appearing for me because he will be the one to coordinate with Allan's case. Q: So it is clear that the defendant in this case is not the counsel of record of Allan Echavia. It was Atty. Alviola stated by you now? A: Atty. Maderazo was not Allan Echavia's counsel but it was Atty. Alviola who was the counsel of record of Allan Echavia."20 Nevertheless, the issue in this case is not whether the respondent also acted as the counsel-of-record of Echavia. Rather, it is whether or not he had a direct hand in the preparation of Echavia's Answer to the Amended Complaint. To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-ofrecord of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party's conflicting interests of record--- although these circumstances
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are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty. Canon 6 of the Code of Professional Ethics states: "It is the duty of a lawyer at the time of the retainer to disclose to the client the circumstances of his relations to the parties and any interest in or in connection with the controversy, which might influence the client in the selection of the counsel. "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when in behalf of one of the clients, it is his duty to contend for that which duty to another client requires him to oppose." (emphasis supplied) An attorney owes his client undivided allegiance. Because of the highly fiduciary nature of the attorney-client relationship, sound public policy dictates that a lawyer be prohibited from representing conflicting interests or discharging inconsistent duties. He may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. Indeed, good faith and honest intention on the part of the erring lawyer does not make this rule inoperative. 21 The lawyer is an officer of the court and his actions are governed by the uncompromising rules of professional ethics. Thus: "The relations of attorney and client is founded on principles of public policy, on good taste. The question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Ceasar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and doubledealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice."22 The professional obligation of the lawyer to give his undivided attention and zeal for his client's cause is likewise demanded in the Code of Professional Responsibility. Inherently disadvantageous to his client's cause, representation by the lawyer of conflicting interests requires disclosure of all facts and consent of all the parties involved. Thus: "CANON 15- All lawyers shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. xxx Rule 15.03- A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts." While the Resolution of the IBP is purely recommendatory, we find no reason to reverse the same. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability. As long as the evidence presented by complainant or that taken judicial notice of by the Court is more convincing and worthy of belief than that which is offered in opposition thereto, the imposition of disciplinary sanction is justified.23
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A perusal of Echavia's Answer to the Amended Complaint shows that it indeed conflicts with the complainant's claims. It reads: "1. The allegations (sic) in Paragraph One (1) of the Complaint is admitted in so far as it pertains to the personal circumstance and residence of the answering defendant. The rest of the allegations in Paragraph One (1), and all the allegations in Paragraph Two (2) , THREE (3), FOUR (4), FIVE (5), SIX (6), ELEVEN (11), TWELVE (12), and FOURTEEN (14), of the Complaint are DENIED for lack of knowledge sufficient to form a belief as to the truth of such allegations."24 By way of prayer, Echavia states: "WHEREFORE, it is respectfully prayed that after hearing, judgment be rendered dismissing plaintiff's complaint."25 Anent the authorship by the respondent of the document quoted above, the Investigating Committee found the testimonies of the complainant and Echavia credible as opposed to respondent's bare denial. As pointed out by Echavia, he was approached by Atty. Maderazo, introduced himself as his lawyer and after some sessions in the latter's office, asked him to return and sign a document which he later identified as the Answer to the Amended Complaint. The Investigating Committee found respondent's defense weak. Respondent did not bother to present his secretary as witness, nor obtain her affidavit to prove his allegations. Instead, he offered a convenient excuse--that he cannot anymore locate his secretary. Respondent argued that it was the complainant who asked him to prepare Echavia's Answer to the Amended Complaint, after reaching an agreement whereby Echavia would testify in favor of the complainant. After he declined the request, he claimed that it was the complainant who prepared the document and asked his secretary to print the same. But as shown, Echavia's Answer to the Amended Complaint was in no way favorable to the complainant. With the dismissal of Civil Case No. 13666, Echavia is practically off the hook. We cannot find any reason why Echavia would commit perjury and entangle himself, once again, with the law. He does not stand to profit at all by accusing the respondent falsely. Furthermore, considering complainant's stature and lack of legal education, we can not see how she could have prepared Echavia's Answer to the Amended Complaint and device a legal maneuver as complicated as the present case. Respondent's attack on the credibility of Investigating Commissioner Ingles to render an impartial decision, having been an adversary in Civil Case No. R-33277, does not convince us to grant new trial. This is the first time that respondent questions the membership of Commissioner Ingles in the Investigating Committee. If respondent really believed in good faith that Commissioner Ingles would be biased and prejudiced, he should have asked for the latter's inhibition at the first instance. Moreover, we could not find any hint of irregularity, bias or prejudice in the conduct of the investigation that would lead us to set it aside. Finally, we remind the respondent that the practice of law is not a property right but a mere privilege, and as such, must bow to the inherent regulatory power of the Court to exact compliance with the lawyer's public responsibilities.26 The suspension of the respondent's privilege to practice law may result to financial woes. But
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as the guardian of the legal profession, we are constrained to balance this concern with the injury he caused to the very same profession he vowed to uphold with honesty and fairness.1wphi1.nt IN VIEW WHEREOF, the Resolution of the IBP finding the respondent guilty of violating Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility is affirmed. Respondent is suspended from the practice of law for six (6) months with a stern warning that a similar act in the future shall be dealt with more severely. SO ORDERED. Austria-Martinez, J., concur. Sandoval-Gutierrez, J., per special order no. 220, dated April 22, 2002, concur. Davide, Jr., C.J., Kapunan, and Ynares-Santiago, JJ., on official leave.
PNB V. CEDO, ADM. CASE NO. 3701, MARCH 28, 1995 EN BANC
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.
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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 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 complainants 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.
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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 clients 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 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
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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. Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
REGALA V. SANDIGANBAYAN G.R. NO. 105938, SEPTEMBER 20, 1996 EN BANC [G.R. No. 105938. September 20, 1996] TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN, and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents. [G.R. No. 108113. September 20, 1996] PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents. DECISION KAPUNAN, J.:
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These cases touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based - the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." i[1] Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings.i[2] On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as partydefendant.i[3] Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33.i[4] Petitioners were included in the Third Amended Complaint on the strength of the following allegations: 14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed. conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm,
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ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984.i[5] In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that: 4.4. Defendants-ACCRA lawyers participation in the acts with which their co -defendants are charged, was in furtherance of legitimate lawyering. 4.4.1. In the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex A of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. 4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the shares appearing in his name in Annex A of the expanded Amended Complaint are his assets.i[6] Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth.i[7] Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.i[8] The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyerclient relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings.i[9] Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. i[10]
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It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder.i[11] On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held: x x x. ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. 5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72). The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Neither can this Court. WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit.i[12] ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds: I The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict application of the law of agency. II
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The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment. 1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder. 2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. 3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause. III The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. 1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s). 2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters. IV The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of partydefendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938. Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship. Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status. i[13] In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as partydefendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No.
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0033 as to Roco `without an order of court by filing a notice of dismissal,'"i[14] and he has undertaken to identify his principal.i[15] Petitioners' contentions are impressed with merit. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the bigger fish as they say in street parlance. This ploy is quite clear from the PCGGs willingness to cut a deal with petitioners -- the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e., their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Underscoring ours) In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their so called client is Mr. Eduardo Cojuangco; that it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex A of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons, some in blank. We quote Atty. Ongkiko: ATTY. ONGKIKO: With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Cojuangco and some are for Mr. Marcos. Fifth, that most of these corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves.i[16]
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It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. II The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire,i[17] and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. i[18] But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee. In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client.i[19] A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent.i[20] Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Courti[21] and exercises his judgment in the choice of courses of action to be taken favorable to his client. 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 a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, i[22] that is required by reason of necessity and public interesti[23] based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.i[24] It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition.i[25] In Stockton v. Ford,i[26] the U.S. Supreme Court held: There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. i[27] In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment.i[28] Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. - The following persons cannot testify as to matters learned in confidence in the following cases:
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xxx An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorneys secretary, stenographer, or clerk be examin ed, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. i[29] Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: 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 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: 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," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the 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. 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 of 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. Considerations favoring confidentiality in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility.
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The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a clients identity should not be shr ouded in mystery.i[30] Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.i[31] The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. A party suing or sued is entitled to know who his opponent is.i[32] He cannot be obliged to grope in the dark against unknown forces.i[33] Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice. In Ex-Parte Enzor,i[34] a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the clients identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his clients identity before a grand jury. Reversing the lower courts contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged. U.S. v. Hodge and Zweig,i[35] involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyers legal advice was obtained. The Hodge case involved federal grand jury proceedings inquiring into the activities of the Sandino Gang, a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino. In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any
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other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held: A clients identity and the nature of that clients fee arrangements may be privileged wh ere the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v. Koerner, 279 F.2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case. The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the clients consent. 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the clients identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications. i[36] 2) Where disclosure would open the client to civil liability, his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,i[37] prompted the New York Supreme Court to allow a lawyers claim to the effect that he could not reveal the name of his c lient because this would expose the latter to civil litigation. In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said: That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney in such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him.i[38] xxx xxx xxx.
All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; x x x And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. xxx. It appears... that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained.i[39]
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In the case of Matter of Shawmut Mining Company,i[40] the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the courts request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyers refusal to divulge the names of his clients the court held: If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.i[41] 3) Where the governments lawyers have no case against an attorneys client unless, by revealing the clients name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the clients name is privileged. In Baird vs Korner,i[42] a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS). It appeared that the taxpayers returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12,706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Bairds repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that clients income tax liability pending. The court emphasized the exception that a clients name is privileged when s o much has been revealed concerning the legal services rendered that the disclosure of the clients identity exposes him to possible investigation and sanction by government agencies. The Court held: The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose - to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and
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the feeling of guilt are the reasons the attorney here involved was employed - to advise his clients what, under the circumstances, should be done.i[43] Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance.i[44] Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction.i[45] Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the clients name itself has an independent signi ficance, such that disclosure would then reveal client confidences.i[46] The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners ticket to non-prosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, that would inevitably form the chain of testimony necessary to convict the (client) of a... crime."i[47]
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An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime.i[48] The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.i[49] "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications."i[50] Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecutions suspicions, then the clients identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedingsi[51] and Tillotson v. Boughner.i[52] What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. There are, after all, alternative sources of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the privilege. i[53] It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and
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distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon,i[54] the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client. To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Schelleri[55] requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmoni[56] famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship.i[57] Such are the unrelenting duties required of lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes,i[58] "xxx is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise: Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life - so share its passions its battles, its despair, its triumphs, both as witness and actor? x x x But that is not all. What a subject is this in which we are united - this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion - only to be won by straining all the faculties by which man is likened to God. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the clients name is not privilege d information. If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties.
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The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings , the PCGG would exact from petitioners a link that would inevitably form the chain of testimony necessary to convict the (client) of a crime. III In response to petitioners' last assignment of error, respondents allege that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require, which includes... the identity of the principal."i[59] First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of- court but also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering. i[60] Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show - and absolutely nothing exists in the records of the case at bar - that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking . Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for reinvestigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions.i[61] To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as a species apart from
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the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. The equal protection clause is a guarantee which provides a wall of protection against uneven application of statutes and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment.i[62] Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed. x x x. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: Favoritism and undue preference ca nnot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest.i[63] We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution.i[64] It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGGs demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer. While we are aware of respondent PCGGs legal mandate to recover ill -gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyerclient confidentiality privilege. WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE.
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Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.". SO ORDERED. Bellosillo, Melo, and Francisco, JJ., concur. Vitug, J., see separate opinion. Padilla, Panganiban, and Torres, Jr., JJ., concur in the result. Davide, Jr. and Puno, JJ., see dissenting opinion. Narvasa, C.J., and Regalado, J., joins Justice Davide in his dissent. Romero, J., no part. Related to PCGG Commissioner when Civil Case No. 0033 was filed. Hermosisima, Jr., J., no part. Participated in Sandiganbayan deliberations thereon. Mendoza, J., on leave.
Canon 16
UNITY FISHING V. ATTY. MACALINO, A.C. NO. 4566, DECEMBER 10, 2004 THIRD DIVISION [A.C. No. 4566. December 10, 2004] UNITY FISHING DEVELOPMENT CORPORATION, complainant, vs. ATTY. DANILO G. MACALINO, respondent. RESOLUTION GARCIA, J.: Under consideration is this petition by way of a complaint for disbarment filed by Unity Fishing Development Corporation against Atty. Danilo Macalino for having violated Canon 16 of the Code of Professional Responsibility.
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In its resolution of June 26, 1996, the Court required respondent to comment on the complaint within ten (10) days from notice.[1] On July 26, 1996, respondent filed a motion for extension of thirty (30) days within which to file comment, [2] which motion was granted by the Court in its resolution of August 21, 1996. [3] On August 26, 1996, respondent filed another motion for extension, this time for an additional period of fifteen (15) days.[4] The motion was similarly granted by the Court in its resolution of October 7, 1996.[5] Still, on September 19, 1996, respondent filed a third and last extension of time to file comment. [6] Again, this was granted by the Court via its resolution of November 27, 1996.[7] Unfortunately, no comment was ever filed by respondent. Hence, and taking note of complainants Motion to Conduct Further Proceedings, filed on March 23, 1998, [8] the Court, in its resolution of April 27, 1998,[9] referred the case to the Integrated Bar of the Philippines (IBP), for investigation, report and recommendation. Acting on the referral, the IBP Commission on Bar Discipline designated Atty. Cesar R. Dulay as investigating commissioner. It appears, however, that even while the case was already under formal investigation, respondent displayed the same attitude of lack of concern. As reported by Atty. Dulay: The Commission issued a notice setting the case for hearing on October 8, 1998, at which hearing complainant represented by its legal counsel and respondent appeared. Again, respondent asked for fifteen days from October 8, 1998 to file his Answer. Complainant also asked the same period within which to file his reply. On November 5, 1998, respondent filed an urgent motion for extension of time to file answer. On November 9, 1998, respondent again filed an urgent motion for last extension of time or a period of fifteen (15) days from November 15, 1998 to file answer, which was granted by the Commission. Since the respondent has not filed his answer as required by the Honorable Supreme Court and the Commission, the case was again set for hearing on November 9, 1999. On said date, only the counsel for complainant appeared. Respondent was absent. However, records show the notice sent to him was returned unserved with the annotation Moved. Records also show that respondent has not filed his answer and again he was given a last chance to file his answer within ten (10) days from receipt of the Order dated November 9, 1999 and the hearing of the case was reset to December 9, 1999. On December 9, 1999, only counsel for complainant appeared and moved that respondents right to file answer be deemed waived and that complainant be allowed to file Memorandum after which, the case shall be deemed submitted for resolution. On December 14, 1999, respondent again filed an Urgent Motion for Extension of fifteen (15) days from December 4, 1999 within which to file his answer.
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On January 7, 2000, the complainant filed a Memorandum, a copy of which was furnished to respondent and which was not controverted by respondent. All told, respondent filed six (6) motions for extension of time to file Answer and up to this time, which is almost seven (7) years from the time the Honorable Supreme Court required respondent to file his answer to the complaint, respondent has not filed any answer,[10] on account of which the investigating commissioner considered the case as now ready for resolution. [11] Thereafter, the investigating commissioner submitted his Report. Dated January 20, 2003, [12] the Report recites the factual background of the case and the commissioners discussion and findings thereon, thus: Frabal Fishing and Ice Plant Corporation (hereinafter, Frabal) was the owner of a parcel of land located along Ramon Magsaysay Boulevard, Sta. Mesa, Manila which was leased to Wheels Distributors, Inc. (hereinafter, Wheels), an authorized dealer of cars and motor vehicles of various make; A dispute arose between Frabal and Wheels regarding the terms and conditions of the lease contract. The dispute eventually led to a lawsuit. Frabal hired the services of respondent Atty. Danilo G. Macalino as counsel for the purpose of representing its interest in the said lawsuit; Frabal merged and was absorbed by Petitioner corporation on February 12, 1991, with the former conveying, assigning and transferring all its business assets and liabilities to the latter, including all judicial and extrajudicial claims. Hence, Petitioner was substituted in lieu of Frabal in the formers lawsuit with Wheels; As Petitioners legal counsel, Respondent advised Petitioner to severe all contractual relationship with Wheels as a step towards eventually evicting the latter from the property they were occupying; Hence, upon advice of Respondent, the contract of lease between Frabal and Wheels was terminated. Respondent likewise advised Petitioner to return the guarantee deposit equivalent to two (2) months rental or the amount of P50,000.00 to Wheels; On March 2, 1988, Petitioner prepared Metrobank Check No. MB350288 dated March 8, 1988 for the amount of P50,000.00. The check was crossed and made payable to the Wheels Distributors, Inc. (Annex A). Respondent volunteered to bring the check to the office of Wheels himself and to make them accept it. Hence, on March 3, 1988, Respondent sent his representative to Petitioners office to get the said check; Respondents representative duly received the said check from Petitioner, as proof of which he signed Check Voucher No. 3-012 (Annex B); Thereafter, Respondent represented to Petitioner that he was able to deliver the check to Wheels Distributors, Inc.; The suit between Petitioner and Wheels continued for several years. In the meantime, Petitioner changed counsels, replacing Respondent with someone else;
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Finally, sometime in May 1994, the suit ended in amicable settlement. In the process of negotiating the terms and conditions of the settlement, Wheels informed Petitioner that it never received therefund (sic) guarantee deposit in the amount of P50,000.00; Petitioner was shocked to learn this piece of information from Wheels Distributors as all along Respondent had represented to Petitioner that Wheels has already received the guarantee deposit of P50,000.00; Petitioner searched its files for the subject check. After locating the check, Petitioner noted that at the back of the check was a rubber stamp marking indicating that it was deposited with the United Savings Bank Head Office on May 13, 1988 to Account No. CA-483-3. United Savings Bank has since been acquired by the United Coconut Planters Bank (UCPB) and is now known as UCPB Savings Bank; Petitioner checked with Wheels Distributors from whom it later learned that the latter never maintained an account with the United Savings Bank, now the UCPB Savings Bank; Petitioner wrote to Respondent on May 19, 1994 to explain why the check in issue never reached Wheels Distributors and how it was endorsed and encashed despite the fact that it was a crossed check (Copy of said letter is Annex C); Despite receipt of said letter, however, Respondent never responded nor attempted to explain his side to what strongly appears to be a gross misappropriation of the money for his own personal use; Hence, Petitioner was constrained to institute an action for damages against Respondent Danilo G. Macalino as well as UCPB Savings Bank with the Regional Trial Court of Malabon, Branch 72 where the same is now docketed as Civil Case No. 2382-MN; That Respondent misappropriated the amount of P50,000.00 for his own personal use cannot be denied. An employee of UCPB in the person of Eduardo Estremadura testified in the aforestated case for damages that Respondent Atty. Danilo G. Macalino was the one maintaining Account No. CA-483-37 at UCPB, to which the crossed check payable to Wheels was deposited (TSN, p. 8, Aug. 24, 1995, copy of the TSN is Annex D); The Metrobank Check No. MB350288 dated March 8, 1988 for the amount of P50,000.00 was deposited to Respondents account is further shown in United Savings Bank Current Account Deposit Slip accomplished by Respondent when he deposited said check with United Savings Bank on May 13, 1988 (Copy of said deposit slip is Annex E). DISCUSSION AND FINDINGS: Respondent Atty. Danilo G. Macalino was given all the opportunity to answer and present his defenses to the complaint. Regrettably, the records show that despite the orders of the Supreme Court and this Commission respondent has not taken any step to verify and inquire as to the status of the complaint against him. Almost three years since the submission of the complainants memorandum, respondent has not reacted nor made any move to protect himself and answer the complaint. Due process consists in being given the opportunity to be heard and we believe that in this case respondent has been given all the opportunity to be heard. On the basis of the above, the investigating commissioner concluded his Report with the following RECOMMENDATION
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WHEREFORE, it is respectfully recommended that respondent be suspended from the practice of law for two (2) years and be ordered to account to complainant the amount of P50,000.00. Respondent should be warned that a similar offense will merit a more severe penalty. [13] On June 21, 2003, the IBP Board of Governors passed Resolution No. XV-2003-341,[14] adopting and approving the report and recommendation of the investigating commissioner with a modification as to the penalty, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification as to the penalty to conform to the evidence, and considering respondents failure to account for the funds received by him in trust from complainant in gross violation of Canon 16 of the Code of Professional Responsibility, as well as for respondents lax, remiss and untroubled attitude in this case, Atty. Danilo G. Macalino is hereby SUSPENDED from the practice of law for one (1) year and Ordered to account to complainant the amount of P50,000.00 with a Warning that a similar offense will merit a more severe penalty. This resolution is now before us for confirmation. The relationship between a lawyer and a client is highly fiduciary; it requires a high degree of fidelity and good faith. It is designed to remove all such temptation and to prevent everything of that kind from being done for the protection of the client.[15] So it is that the Code of Professional Responsibility provides: 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 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. The Canon of Professional Ethics is even more explicit when it states: The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantages of the confidence reposed in him by his client. Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him. (par. 11)
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Here, we are in full accord with the findings, conclusion and recommendation of the IBP Board of Governors that respondent misappropriated the money entrusted to him and which he failed to account for to his client despite demand therefor. Respondents failure to rebut complainants evidence clearly reveals his failure to live up to his duties as a lawyer in consonance with the lawyers oath and the Code of Professional Responsibility. His repeated failure without any valid reason to comply with the orders of the Court requiring him to comment on the complaint lends credence to the allegations thereof and manifests his tacit admission of the same. As aptly found by Commissioner Dulay, the following uncontroverted facts as supported by the annexes of the complaint had been established: 1. that Metrobank Check No. MB350288 in the amount of P50,000.00 payable to Wheels Distributors (Annex A of Petition) was prepared by Frabal Fishing & Ice Plant Corporation (Annex B Petition) and released to respondents representative; 2. that the said Metrobank Check No. [MB350288] was deposited to Account No. 0110004833 under Account Name Danilo G. Macalino at the United Savings Bank (Annex E of Petition); 3. that on 19 May 1994 complainant wrote a letter to respondent (Annex C of Petition) advising the latter that the Metrobank Check intended for Wheel Distributors, Inc. was not received by them (Wheels Distributors) yet it was endorsed and encashed. Respondent was therefore requested to explain how the particular check was encashed. Respondent received the letter on May 23, 1994 (Annex C -3 of Petition) and the records do not show that respondent replied to the latter requiring him to explain; and 4. that complainant filed a civil case against UCPB Savings Bank, and Danilo Macalino before the Regional Trial Court of Malabon, Metro Manila docketed as Civil Case No. 2382-MN (Annex D of Petition) and at the hearing of said case on August 24, 1995, witness Eduardo Estremadura, a bookeeper of UCPB Bank positively testified that Danilo G. Macalino was the maintainer of Account No. CA-483-3 of the UCPB Savings Bank, Legaspi Branch (page 8 & 9 Annex D, TSN of hearing of Civil Case No. 2382-MN) and that Check No. 350288 was deposited to the Account of Danilo G. Macalino under CA-483-3 on May 13, 1988 (page 9 of Annex D, TSN of hearing); and was credited to the account of Danilo G. Macalino (page 12 of Annex D , TSN of hearing of Civil Case No. 2382-MN)[16], from which established facts, the investigating commissioner made the following conclusions: 1. that Metrobank Check No. 350288 in the amount of P50,000.00 which was intended for Wheels Distributors, Inc. was deposited and the amount credited to Account No. 483-3 of respondent Danilo G. Macalino with the UCPB Savings Bank. 2. that respondent when required by the complainant to explain and account for the amount of P50,000.00 caused by Metrobank Check No. 350288 which was not intended for him failed to reply and give any accounting of such funds to complainant.[17] Respondents wanton failure to make an accounting and to return to his client the amount entrusted to him upon demand give rise to the presumption that he misappropriated it, in violation of the trust and confidence reposed on him. His act of holding on to complainants money without its acquiescence is conduct indicative of lack of integrity and propriety.[18] A lawyer, under his oath, pledges himself not to delay any man for money and is bound to conduct himself with all good fidelity to his client. [19]
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It is clear, therefore, that respondent, by depositing the check in his own account and subsequently deceiving his client into believing that he delivered the same to Wheels is undoubtedly guilty of deceit, malpractice, gross misconduct and unethical behavior. He caused dishonor, not merely to himself but to the noble profession to which he belongs. For, it cannot be denied that the respect of litigants to the profession is inexorably diminished whenever a member of the Bar betrays their trust and confidence.[20] Like judges, lawyers must not only be clean; they must also appear clean. This way, the peoples faith in the justice system remains undisturbed. [21] What is more, respondents repeated failures to comply with the orders of the Court requiring him to comment on the complaint indicate a high degree of irresponsibility on his part. We have no hesitance, then, in confirming the resolution passed by the IBP Board of Governors suspending respondent from the practice of law for one (1) year. We could have taken a more drastic action against respondent, but considering that he has no prior administrative record, it is our sentiment that the recommended penalty serves the purpose of protecting the interest of the public and the legal profession. After all, in Espiritu vs. Cabredo,[22] we imposed the same penalty on an attorney who similarly failed to account the money received from his client and to restitute it without any reason. WHEREFORE, Atty. Danilo G. Macalino is hereby declared guilty of violation of Canon 16 of the Code of Professional Responsibility, for his failure to immediately return and deliver the funds of his former client upon demand, and is hereby SUSPENDED from the practice of law for a period of one (1) year effective immediately, with a STERN WARNING that a repetition of the same or similar acts shall be dealt with more severely. He is likewise ordered to return the sum of P50,000 to complainant within ten (10) hereof. Let copies of the Resolution be entered into respondents record as an attorney and be furnished the Integrated Bar of the Philippines (IBP) and all the courts in the country for their information and guidance. SO ORDERED. Panganiban, (Chairman), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur. Corona, J., on leave.
JUNIO V. ATTY. GRUP, A.C. NO. 5020, DECEMBER 18, 2001 SECOND DIVISION [A.C. No. 5020. December 18, 2001] ROSARIO JUNIO, complainant, vs. ATTY. SALVADOR M. GRUPO, respondent. DECISION MENDOZA, J.: This is a complaint for disbarment filed against Atty. Salvador M. Grupo for malpractice and gross misconduct.
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Complainant Rosario N. Junio alleged that 3. Sometime in 1995, [she] engaged the services of [respondent], then a private practitioner, for the redemption of a parcel of land covered by Transfer Certificate of Title No. 20394 registered in the name of her parents, spouses Rogelio and Rufina Nietes, and located at Concepcion, Loay, Bohol. 4. On 21 August 1995, [complainant] entrusted to [respondent] the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property. Respondent received the said amount as evidenced by an acknowledgment receipt, a copy of which is being hereto attached as Annex A. 5. Notwithstanding the foregoing and for no valid reason, respondent did not redeem the property; as a result of which the right of redemption was lost and the property was eventually forfeited. 6. Because of respondents failure to redeem the property, complainant had demanded [the] return of the money which she entrusted to the former for the above-stated purpose. 7. Despite repeated demands made by the complainant and without justifiable cause, respondent has continuously refused to refund the money entrusted to him.i[1] In his Answer, petitioner admitted receiving the amount in question for the purpose for which it was given. However, he alleged that 6. The subject land for which the money of complainant was initially intended to be applied could really not be redeemed anymore . . ; 7. Complainant knew the mortgage agreement between her parents and the mortgage-owner had already expired, and what respondent was trying to do was a sort of [a] desperate, last-ditch attempt to persuade the said mortgagee to relent and give back the land to the mortgagors with the tender of redemption; but at this point, the mortgagee simply would not budge anymore. For one reason or another, he would no longer accept the sum offered; 8. By the time that complainant was to return to Manila, it was already a foregone matter that respondents efforts did not succeed. And so, when transaction failed, respondent requested the complainant that he be allowed, in the meantime, to avail of the money because he had an urgent need for some money himself to help defray his childrens educational expenses. It was really a personal request, a private matter between respondent and complainant, thus, respondent executed a promissory note for the amount, a copy of which is probably still in the possession of the complainant. 9. . . . [T]he family of the complainant and that of the respondent were very close and intimate with each other. Complainant, as well as two of her sisters, had served respondents family as household helpers for many years when they were still in Manila, and during all those times they were treated with respect, affection, and equality. They were considered practically part of respondents own family. That is why, when complainant requested . . . assistance regarding the problem of the mortgaged property which complainant wanted to redeem, respondent had no second-thoughts in extending a lending hand . . . .
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Respondent did not ask for any fee. His services were purely gratuitous; his acts [were] on his own and by his own. It was more than pro bono; it was not even for charity; it was simply an act of a friend for a friend. It was just lamentably unfortunate that his efforts failed. .... Of course, respondent accepts his fault, because, indeed, there were occasions when complainants sisters came to respondent to ask for the payment in behalf of complainant, and he could not produce the money because the circumstances somehow, did not allow it. [I]t does not mean that respondent will not pay, or that he is that morally depraved as to wilfully and deliberately re[nege] in his obligation towards the complainant. i[2] Complainant filed a reply denying that respondent informed her of his failure to redeem the property and that respondent requested her to instead lend the money to him. i[3] The case was thereafter referred to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation. However, while two hearings were set for this purpose, both were postponed at the instance of respondent. For this reason, on August 28, 2000, complainant asked the Investigating Commissioner i[4] to consider the case submitted for decision on the basis of the pleadings theretofore filed. Respondent was required to comment on complainants motion, but he failed to do so. Consequently, the case was considered submitted for resolution. In his report, dated January 5, 2001, the Investigating Commissioner found respondent liable for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latters interests are protected by the nature of the case or by independent advice. T he Investigating Commissioner found that respondent failed to pay his clients money. However, in view of respondents admission of liability and plea for magnanimity, the Investigating Commissioner recommended that respondent be simply reprimanded and ordered to pay the amount of P25,000.00 loan plus interest at the legal rate. In its Resolution No. XIV-2001-183, dated April 29, 2001, the IBP Board of Governors adopted and approved the Investigating Commissioners findings. However, it ordered [R]espondent . . . suspended indefinitely from the practice of law for the commission of an act which falls short of the standard of the norm of conduct required of every attorney and . . . ordered [him] to return to the complainant the amount of P25,000.00 plus interest at the legal rate from the time the said amount was misappropriated, until full payment; provided that the total suspension shall be at least one (1) year from the date of said full payment. On July 4, 2001, respondent filed a motion for reconsideration alleging that (a) there was no actual hearing of the case wherein respondent could have fully ventilated and defended his position; (b) the subject Resolution gravely modified the Report and Recommendation of the Trial Commissioner, Hon. Pedro Magpayo, Jr., . . . such that the resultant sanctions that are ordered imposed are too leonine, unjust and cruel;
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(c) that the factual circumstances attending the matter which gave rise to the complaint were not rightly or fairly appreciated.i[5] He argues that the Court should adopt the report and recommendation of the IBP Investigating Commissioner. In its resolution of August 15, 2001, the Court resolved to treat respondents motion for reconsideration as a petition for review of IBP Resolution No. XIV 2001-183 and required complainant to comment on the petition. In her comment, complainant states that her primary interest is to recover the amount of P25,000.00 with interest and that she is leaving it to the Court to decide whether respondent deserves the penalty recommended by the IBP.i[6] The Court resolves to partially grant the petition. In his report and recommendation, Investigating Commissioner Magpayo, Jr. made the following findings: In his Answer, the respondent ADMITS all the allegations in paragraph 4 of the complaint which avers: 4. On 21 August 1995, complainant entrusted to respondent the amount of P25,000.00 in cash to be used in the redemption of the aforesaid property (parcel of land covered by TCT No. 20394 registered in the name of complainants parents located at Concepcion, Loay, Bohol). Respondent received the said amount as evidenced by an acknowledgment receipt (Annex A). By way of confession and avoidance, the respondent, . . . however, contended that when the mortgagee refused to accept the sum tendered as the period of redemption had already expired, he requested the complainant to allow him in the meantime to use the money for his childrens educational expenses[,] to which request the complainant allegedly acceded and respondent even executed a promissory note (please see 4th par. of Annex B of complaint). Respondent takes further refuge in the intimate and close relationship existing between himself and the complainants family on the basis of which his legal services were purely gratuitous or simply an act of a friend for a friend with no consideration involved. Unfortunately, his efforts to redeem the foreclosed property, as already stated, did not produce the desired result because the mortgagee would not budge anymore and would not accept the sum offered. Thus, the respondent concluded that there was, strictly speaking, no attorney-client [relationship] existing between them. Rather, right from the start[,] everything was sort of personal, he added. Granting to the respondent the benefit of the doubt, we shall assume that there was in reality a loan in the amount of P25,000.00. This is likewise confirmed by the execution of a promissory note on 12 December 1996 by the respondent who undertook to pay Mrs. Junio on or before January 1997 (Annex B of complaint). Moreover, the demand letter of 12 March 1998 (Annex B) mentions of reimbursement of the sum received and interest of 24% per annum until fully paid giving the impression that the funds previously intended to be used for the repurchase of a certain property (Annex A of complaint) was converted into a loan with the consent of the complainant who gave way to the request of the respondent to help defray his childrens educational expenses (par. 8 of Answer).
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Be that as it may, the duty and obligation to repay the loan remains unshaken. Having utilized the sum to fulfill his urgent need for some money, it is but just and proper that he return the amount borrowed together with interest. Five (5) years had already passed since respondent retained the cash for his own personal use. But notwithstanding the same and his firm promise to pay Mrs. Junio on or before January 1997 he has not demonstrated any volition to settle his obligation to his creditor [,] although admittedly there w[ere] occasions when complainants sister came to respondent to ask for the payment in behalf of complainant, worse, the passage of time made respondent somehow forgot about the obligation. A lawyer shall not borrow money from his client unless the clients interests are fully protected by the nature of the case or by independent advice (Rule 16.04, Code of Professional Responsibility). This rule is intended to prevent the lawyer from taking advantage of his influence over the client. This rule is especially significant in the instant case where the respondent enjoys an immense ascendancy over the complainant who, as well as two of his sisters, had served respondents family as household helpers for many years. Having gained dominance over the complainant by virtue of such long relation of master and servant, the respondent took advantage of his influence by not returning the money entrusted to him. Instead, he imposed his will on the complainant and borrowed her funds without giving adequate security therefor and mindless of the interest of the complainant. In the light of the foregoing, . . . respondent has committed an act which falls short of the standard of the norm of conduct required of every attorney. If an ordinary borrower of money is required by the law to repay the loan failing which he may be subjected to court action, it is more so in the case of a lawyer whose conduct serves as an example.i[7] It would indeed appear from the records of the case that respondent was allowed to borrow the money previously entrusted to him by complainant for the purpose of securing the redemption of the property belonging to complainants parents. Respondent, however, did not give adequate security for the loan and subsequently failed to settle his obligation. Although complainant denied having loaned the money to respondent, the fact is that complainant accepted the promissory note given her by respondent on December 12, 1996. In effect, complainant consented to and ratified respondents use of the money. It is noteworthy that complainant did not attach this promissory note to her complaint nor explain the circumstances surrounding its execution. She only mentioned it in her demand letter of March 12, 1998 (Annex B), in which she referred to respondents undertaking to pay her the P25,000.00 on or before January 1997. Under the circumstances and in view of complainants failure to deny the promissory note, the Court is constrained to give credence to respondents claims that the money previously entrusted to him by complainant was later converted into a loan. Respondents liability is thus not for misappropriation or embezzlement but for violation of Rule 16.04 of the Code of Professional Responsibility which forbids lawyers from borrowing money from their clients unless the latters interests are protected by the nature of the case or by independent advice. In this case, respondents liability is compounded by the fact that not only did he not give any security for the payment of the amount loaned to him but that he has also refused to pay the said amount. His claim that he could not pay the loan because circumstances . . . did not allow it and that, because of the passage of time, he somehow forgot about his obligation only underscores his blatant disregard of his obligation which reflects on his honesty and
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candor. A lawyer is bound to observe candor, fairness, and loyalty in all his dealings and transactions with his client.i[8] Respondent claims that complainant is a close personal friend and that in helping redeem the property of complainants parents, he did not act as a lawyer but as a friend, hence there is no client -attorney relationship between them. This contention has no merit. As explained in Hilado v. David,i[9] To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion . . . It is not necessary that any retainer should have been paid, promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established . . . . Considering the foregoing, the Investigating Commissioners recommendation to impose on respondent the penalty of reprimand and restitution of the amount loaned by him is clearly inadequate. On the other hand, the penalty of indefinite suspension with restitution imposed by the IBP Board of Governors is too harsh in view of respondents apparent lack of intent to defraud complainant and of the fact that this appears to be his first administrative transgression. It is the penalty imposed in Igual v. Javieri[10] which applies to this case. In that case, this Court ordered the respondent suspended for one month from the practice of law and directed him to pay the amount given him by his clients within 30 days from notice for his failure to return the money in question notwithstanding his admission that he did not use the money for the filing of the appellees brief, as agreed by them, because of an alleged quarrel with his clients. Anent petitioners allegation regarding the lack of hearing during the IBP investigation, suffice it to say that he waived such right when he failed to comment on petitioners motion to submit the case for resolution on the basis of the pleadings theretofore filed despite due notice to him, not to mention the fact that it was he who had requested the postponement of the two hearings scheduled by the Investigating Commissioner. WHEREFORE, the Court finds petitioner guilty of violation of Rule 16.04 of the Code of Professional Responsibility and orders him suspended from the practice of law for a period of one (1) month and to pay to respondent, within 30 days from notice, the amount of P25,000.00 with interest at the legal rate, computed from December 12, 1996. SO ORDERED. Bellosillo, (Chairman), Quisumbing, and De Leon, Jr., JJ., concur. Buena, J., abroad on official business.
PELMOKA V. JUDGE DIAZ, JR., A.C. NO. 2662-CFI, NOVEMBER 26, 1982 SECOND DIVISION
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A.M. No. 2662-CFI November 25, 1982 FLAVIANO A. PELMOKA, complainant, vs. FELIX T. DIAZ, JR., Court of First Instance of Nueva Ecija, Branch IV , respondent.
ABAD SANTOS, J.: In a verified complaint dated December 4, 1981, Flaviano A. Pelmoka charged Judge Felix T. Diaz, Jr. of the Court of First Instance of Nueva Ecija and Attorneys Facundo T. Bautista and Inocencio B. Garampil, Sr. with serious misconduct in connection with Civil Case No. 279-G, entitled Eustacio Nepomuceno, et al. vs. Ester Garampil, et al. The charge against Judge Diaz is for gross ignorance of the law and judicial proceedings; failure to protect the complainant's charging lien as one of the lawyers who intervened in the aforementioned civil case; and partiality, bias prejudice or malicious motive. This decision concerns Judge Diaz only who was required to file an answer to the complaint. The answer denies the allegations of the complaint with a prayer that it be dismissed. The complainant filed a reply to the answer and issues having been joined, it was ascertained that the case could be decided on the basis of the documentary evidence submitted without resorting to a formal hearing. The Rollo of the case reveals, according to Deputy Court Administrator Romeo D. Mendoza, the following:
Civil Case No. 279-G was a case for partition and reconveyance filed with the CFI of Nueva Ecija, Branch IV, on March 4, 1972, long before respondent judge was appointed to the Bench. When the respondent judge inherited the case in 1976, there were many side issues and/or incidents pending to be resolved, among which were: (a) Motion to exclude defendant Ester Garampil as an heir of the late Leon Arguelles; and (b) Motion for appointment of commissioners to partition the properties, both filed by herein complainant. Respondent judge issued an order denying the motion of the plaintiffs for exclusion of defendant Ester Garampil as heir so as to avoid the piecemeal adjudication of the issues raised in the case. (p. 74.) The motion of the plaintiffs for the appointment of commissioners was likewise denied by respondent judge for the reason that there was then pending before the Court of Appeals, an appeal involving the same parties and the same properties whereby the legality of a Deed of Donation concerning the same properties being litigated, is the very issue to be resolved. (p. 75.) It was for this reason that respondent judge held in abeyance the trial of Civil Case No. 279-G pending termination of the appeal before the Court of Appeals. (p. 80.) On May 4, 1981, a Motion to set the case for conference among the parties, was filed by defendants Serranos, Rigors and Garcias who were represented by Atty. Facundo T. Bautista. After a hearing on the aforesaid motion was held, the defendants moved for the approval of the "Compromise Agreement" dated July 1, 1981, which was signed by all the parties to the case (except defendant Ester Garampil), as well as by all the lawyers of the said parties, namely, complainant himself, representing the plaintiffs, Atty. Facundo Bautista, representing the defendants, and Atty. Inocencio Garampil, representing defendant Ester Garampil. (pp. 89-94.) The parties agreed that they would partition the properties being litigated in the manner specified in the "Compromise Agreement" and that they would be separately responsible for the payment of the fees of their respective lawyers. On September 21, 1981, the respondent judge issued a decision approving the said compromise agreement on July 1, 1981. (pp. 97-100.)
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Defendant Ester Garampil thereafter filed a motion to deposit in court, the purchase price of a commercial property in the amount of P250,000.00 in order that the proceeds thereof may be disposed of in accordance with the approved compromise agreement. Complainant then filed a motion for the payment of his professional fee in the amount of P57,519.00, (pp. 104-105.) which was later raised to P79,186.00 in two subsequent motions of the complainant. (pp. 113-119.)
On October 22, 1981, defendant Ester Garampil filed a motion for the withdrawal of the sum of P20,060.00 (p.109.) from the amount deposited with the court, representing partial payment of her share in the estate pursuant to the expressed agreement of the heirs of the deceased contained in the compromise agreement, which motion was granted by the respondent judge. (p.110.) The other parties thereafter moved to withdraw their respective shares in the cash deposit with the court, and on the basis of the said motions, respondent judge issued the Order dated October 30, 1981, allowing the defendants to withdraw their shares; (p.120.) and the Order dated November 20, 1981, granting the request of the other parties for the withdrawal of their respective shares. (pp. 135-137.)
In his complaint, complainant charged respondent judge with gross ignorance of the law and judicial proceedings committed in the following manner: (a) unduly delaying the disposition of Civil Case No. 279G when respondent judge denied plaintiffs' motion for the appointment of commissioners to partition the properties; (b) not resolving plaintiffs' motion to exclude defendant Ester Garampil as heir of deceased Leon Arguelles despite early pronouncement of Judge Placido Ramos, respondent judge's predecessor, that Ester Garampil is not an heir of the deceased; (c) approving the compromise agreement of partition entered into by all the parties; (d) allowing Ester Garampil to withdraw the amount of P20,000.00 from the cash deposit, with the court, considering that she is not an heir of the deceased; and (e) ignoring complainant's motion for payment of his fees out of the money deposited with the court.
The complainant further alleged that the respondent judge failed to protect his charging lien for his attorney's fees when he allowed plaintiffs to withdraw their share from the said deposit. He likewise charged respondent judge with bias and partiality when he allowed all the parties to withdraw their respective shares while the complainant was not allowed to do the same in so far as his charging lien is concerned.
Respondent judge, in his Answer dated January 13, 1982, (pp. 62-71.) denied all the charges in the complaint. The respondent judge alleged that Civil Case No. 279-G was a case for reconveyance and partition of the estate of deceased Leon Arguelles which had been heard and tried by no less than four (4) judges before him. When he inherited the case in 1976, there were several side issues and/or incidents pending to be resolved and while all these side issues were pending before the court a quo, an appeal involving the same parties and the same properties being litigated, was then pending before the Court of Appeals. It was for this reason that the respondent judge denied complainant's motion for appointment of a commissioner as well as his motion to exclude defendant Ester Garampil as an heir. Respondent judge also stated that he allowed the parties, including defendant Ester Garampil who is not a compulsory heir, to withdraw their respective shares from the cash portion of the estate in order to implement the compromise agreement entered into by all the parties and their respective lawyers. With respect to the charge of the complainant that the respondent judge failed to protect his charging lien or f& attorney's fees, the respondent judge explained that he did not grant complainant's motion for payment of his professional fees because he could not ascertain the exact amount of complainant's just, reasonable and fair fee, considering that his claim of P79,186.00 was contested by the plaintiffs as being exorbitant.
Deputy Court Administrator Mendoza has assessed the charges against Judge Diaz in the light of the record as follows:
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The respondent judge cannot be faulted for dismissing complainant's motion for appointment of commissioners as well as his motion to exclude defendant Ester Garampil as an heir. The respondent judge had to dismiss the said motions to avoid piecemeal adjudication of the issues raised before him. In fact, respondent judge even suspended the trial of the case until after the Court of Appeals shall have resolved the issue pending before it which involved the same parties and the same properties being litigated. The respondent judge was likewise justified in granting the motion of the parties to withdraw their respective shares from the cash portion of the estate. The respondent judge only implemented the compromise agreement entered into by all the parties and signed by all their respective lawyers including complainant herein. With respect to complainant's professional fees, it was specified in the compromise agreement that the parties would be separately responsible for the payment of the fees of their respective lawyers. Since the plaintiffs (complainant's clients), refused to pay complainant's claim for attorney's fee in the amount of P79,186.00 on the ground that the same is exorbitant, the remedy of the complainant is to file a separate action for recovery of his fees where the parties win be afforded the chance to prove their respective claims and defenses. In the case of Bongco vs. Judge Serapio, (Adm. Matter No. 1804-CAR, Feb. 28, 1980.) this Court held that where it does not appear from the facts in an administrative complaint that the assailed judicial acts of respondent judge were corrupt or inspired by an intention to violate the law, or were done in persistent disregard of well known legal rules, the complaint should be dismissed for lack of merit.
The assessment is well taken except in respect of the failure of the respondent to protect the complainant's right to collect his professional fees. The respondent should not have allowed the clients of the complainant to withdraw their shares from the cash deposit without extending ample protection to the latter's claim. This error was compounded by his order allowing even Ester Garampil to withdraw her share when she did not sign the compromise agreement of July 1, 1981. It was grossly unfair for the respondent to leave the complainant holding an empty bag, so to speak, after he had rendered his professional services as counsel to the plaintiffs. True it is that the compromise agreement stipulates that the parties shall be separately responsible for the payment of the fees for their respective lawyers; nevertheless, the respondent should not have improvidently allowed the clients of the complainant to withdraw their shares without first determining his reasonable fees. A lawyer has the right to claim the fruits of his labor. He has the equitable right to be paid his fees out of the judgment which he has obtained from a court of justice. Any allegation of exorbitant or excessive fees should have been resolved by the respondent Judge on the basis of quantum meruit. Or the respondent could have inquired from the plaintiffs what they considered as reasonable attorney's fees for the services of complainant, direct the payment of such "reasonable amount" as partial payment of his attorney's fees, and set for hearing the disputed difference between the claim of the complainant and the amount considered reasonable by the plaintiffs. WHEREFORE, for his failure to protect the complainant's charging lien, the respondent is hereby reprimanded. SO ORDERED. Makasiar (Chairman), Aquino, Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.
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LEMOINE V. BALON, JR., A.C. NO. 5829, OCTOBER 28, 2003 EN BANC [A.C. No. 5829. October 28, 2003] DANIEL LEMOINE, complainant, vs. ATTY. AMADEO E. BALON, JR., respondent. DECISION PER CURIAM: On December 17, 1999, complainant Daniel Lemoine, a French national, filed a verified complaint i[1] against respondent Atty. Amadeo E. Balon, Jr., for estafa and misconduct before the Integrated Bar of the Philippines. The case, docketed as CBD Case No. 99-679, was referred by the Commission on Bar Discipline to an Investigator for investigation, report and recommendation. The facts that spawned the filing of the complaint are as follows: In early 1998, complainant filed a car insurance claim with the Metropolitan Insurance Company (Metropolitan Insurance), the insurer of his vehicle which was lost. As complainant encountered problems in pursuing his claim which was initially rejected,i[2] his friend, a certain Jesus Jess Garcia (Garcia), arranged for the engagement of respondents services. By letteri[3] of October 21, 1998 addressed to Elde Management, Inc., ATTN: Mr. Daniel Lemoine, under whose care complainant could be reached, respondent advised complainant, whom he had not before met, that for his legal services he was charging 25% of the actual amount being recovered. . . payable upon successful recovery; an advance payment of P50,000.00 to be charged [to complainant] to be deducted from whatever amount [would] be successfully collected; P1,000.00 as appearance and conference fee for each and every court hearings, conferences outside our law office and meetings before the Office of the Insurance Commission which will be also charged to our 25% recovery fee; and legal expenses such as but not limited to filing fee, messengerial and postage expenses . . . and other miscellaneous but related expenses, to be charged to complainants account which would be reimbursed upon presentation of statement of account. The letter-proposal of respondent regarding attorneys fees does not bear complainants conformity, he not having agreed therewith. It appears that Metropolitan Insurance finally offered to settle complainants claim, for by letter i[4] of December 9, 1998 addressed to it, respondent confirmed his acceptance of its o ffer to settle the claim of complainant in an ex-gratia basis of 75% of his policy coverage which is therefore FIVE HUNDRED TWENTY FIVE THOUSAND (P525,000.00) PESOS. A day or a few days before December 23, 1998 when complainant left for France,i[5] he, on the advice of respondent, signed an already prepared undated Special Power of Attorneyi[6] authorizing respondent and/or Garcia to bring any action against Metropolitan Insurance for the satisfaction of complainants claim as well as to negotiate, sign, compromise[,] encash and receive payment from it. The Special Power of Attorney was
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later dated December 23, 1998 on which same date Metropolitan Insurance issued a Chinabank Check No. 841172 payable to complainant in the amount of P525,000.00 as full settlement of the claim.i[7] The check was received by respondent. In the meantime, complainant returned to the Philippines in early January 1999 but left again on the 24th of the same month.i[8] On inquiry about the status of his claim, Garcia echoed to complainant what respondent had written him (Garcia) in respondents letteri[9] of March 26, 1999 that the claim was still pending with Metropolitan Insurance and that it was still subject of negotiations in which Metropolitan Insurance offered to settle it for P350,000.00 representing fifty percent thereof. In the same letter to Garcia, respondent suggested the acceptance of the offer of settlement to avoid a protracted litigation. On December 6, 1999, on complainants personal visit to the office of Metropolitan Insurance, he was informed that his claim had long been settled via a December 23, 1998 check given to respondent the year before. i[10] Complainant lost no time in going to the law office of respondent who was not around, however, but whom he was able to talk by telephone during which he demanded that he turn over the proceeds of his claim.i[11] Respondent thereupon faxed to complainant a December 7, 1999 letteri[12] wherein he acknowledged having in his possession the proceeds of the encashed check which he retained, however, as attorneys lien pending complainants payment of his attorneys fee, equivalent to fifty percent ( 50%) of entire amount collected. In the same letter, respondent protested what he branded as the uncivilized and unprofessional behavior complainant reportedly demonstrated at respondents office. Respondent winded up his letter as follows, quoted verbatim: We would like to make it clear that we cannot give you the aforesaid amount until and unless our attorneys fees will be forthwith agreed and settled. In the same manner, should you be barbaric and uncivilized with your approached, we will not hesitate to make a proper representation with the Bureau of Immigration and Deportation for the authenticity of your visa, Department of Labor and Employment for your working status, Bureau of Internal Revenue for your taxation compliance and the National Bureau of Investigation [with] which we have a good network... While it [is your] prerogative to file a legal action against us, it is also our prerogative to file a case against you. We will rather suggest if you could request your lawyer to just confer with us for the peaceful settlement of this matter. (Underscoring and emphasis supplied) As despite written demands,i[13] respondent refused to turn over the proceeds of the insurance claim and to acknowledge the unreasonableness of the attorneys fees he was demanding, complainant instituted the administrative action at bar on December 17, 1999. In his Complaint-Affidavit, complainant alleged that [i]t appears that there was irregularity with the check, it having been issued payable to him, but and/or AMADEO BALON was therein intercalated after his (complainants) name.i[14] Maintaining that respondent was entitled to only P50,000 .00 in attorneys fees,i[15] complainant decried respondents continued possession of the proceeds of his claimi[16]and his misrepresentations that the recovery thereof was fraught with difficulties.i[17] In his Counter-Affidaviti[18] of February 18, 2000, respondent asserted that his continued retention of the proceeds of complainants claim is in lawful exercise of his lien for unpaid attorneys fees. He expressed readiness, however, to account for and turn them over once he got paid fifty percent (50%) thereof, he citing the
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so called contingent fee billing method of no cure, no pay adopted by practicing lawyers in the insurance industry as the basis of the amount of his attorneys fees, i[19] which to him was justified in the absence of an attorney-client contract between him and complainant, the latter having rejected respondents letter -proposal of October 21, 1998.i[20] Respondent also highlighted the value of the time and efforts he extended in pursuing complainants claim and the expenses he incurred in connection therewith. He went on to assert that his inability to contact complainant whose whereabouts he did not know prompted him to encash the check and keep the proceeds thereof in conformity with the Special Power of Attorney executed in his favor.i[21] During the hearings conducted by the IBP Investigator, complainant echoed his allegations in his ComplaintAffidavit and stressed that he turned down as unreasonable respondents proposal in his October 21, 1998 letter that he be paid 25% of the actual amount collected for his legal services.i[22] And he presented documentary evidence, including the March 26, 1999 letter of respondent informing his co-attorney-in-fact Garcia of the supposedly still unrecovered claim and suggesting acceptance of the purported offer of Metropolitan Insurance to settle complainants claim at P350,000.00. Explaining how his above-mentioned March 26, 1999 letter to Garcia came about, respondent declared that it was made upon Garcias request, intended for a certain Joel Ramiscal (Ramiscal) who was said to be Garcias business partner.i[23] Respondent later submitted a June 13, 2001 Supplementi[24] to his Counter-Affidavit reiterating his explanation that it was on Garcias express request that he wrote the March 26, 1 999 letter, which was directed to the fax number of Ramiscal. Additionally, respondent declared that in the first week of May 1999, on the representation of Garcia that he had talked to complainant about respondents retention of fifty percent (50%) of the insurance proceeds for professional fees less expenses,i[25] he gave Garcia, on a staggered basis, the total amount of P233,000.00 which, so respondent averred, is the amount of insurance claim complainant is entitled to receive less attorneys fees and expenses.i[26] Thus, respondent claimed that he gave Garcia the amount of P30,000.00 on May 31, 1999 at Dulcinea Restaurant in Greenbelt, Makati; the amounts of P50,000.00, P20,000.00 and P30,000.00 on different occasions at his (respondents) former address through his executive secretary Sally I. Leonardo; the amount of P20,000.00 at the office of his (respondents) former employer Commonwealth Insurance Company through his subordinate Glen V. Roxas; and several other payments at Dulcinea, and at Manila Intercontinental Hotels coffee shop sometime in October 1999.i[27] Respondent submitted the separate sworn statements of Leonardo and Roxas.i[28] Explaining why no written memorandum of the turn over of various payments to Garcia was made, respondent alleged that there was no need therefor since he very well knew Garcia who is a co-Rotarian and co-attorney-infact and whom he really dealt with regarding complainants claim.i[29] Respondent furthermore declared that he rejected complainants offer to pay hi m P50,000.00 for his services, insisting that since there had been no clear-cut agreement on his professional fees and it was through him that Metropolitan Insurance favorably reconsidered its initial rejection of complainants claim, he is entitled to a contingent fee of 50% of the net proceeds thereof.i[30] Finally, respondent declared that he, in connection with his follow-up of the insurance claim, incurred representation expenses of P35,000.00, entertainment and other representation expenses on various occasions of
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P10,000.00, and transportation and gasoline expenses and parking fees of P5,000.00; i[31] and that his retention of complainants money was justified in light of his apprehension that complainant, being an alien without a valid working permit in the Philippines, might leave the country anytime without settling his professional fees.i[32] The Investigating Commissioner, by Report and Recommendationi[33] of October 26, 2001, found respondent guilty of misconduct and recommended that he be disbarred and directed to immediately turn over to complainant the sum of P475,000.00 representing the amount of the P525,000.00 insurance claim less respondents professional fees of P50,000.00, as proposed by complainant. The Board of Govenors of the Integrated Bar of the Philippines, acting on the Investigators Report, issued Resolution No. XV-2002-401i[34] on August 3,2002, reading: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering respondents dishonesty which amounted to grave misconduct and grossly unethical behavior which caused dishonor, not merely to respondent but the noble profession to which he belongs, Respondent is hereby SUSPENDED from the practice of law for six (6) months with the directive to turn over the amount of Five Hundred Twenty Five Thousand (P525,000.00) Pesos to the complainant without prejudice to respondents right to claim attorneys fees which he may collect in the proper forum. (Underscoring supplied) The records of the case are before this Court for final action. Respondent, by a Motion for Reconsiderationi[35] filed with this Court, assails the Investigating Commissioners Report and Recommendation as not supported by clear, convincing and satisfactory proof. He prays for the reopening of the case and its remand to the Investigator so that Garcia can personally appear for his (respondents) confrontation. There is no need for a reopening of the case. The facts material to its resolution are either admitted or documented. This Court is in full accord with the findings of the IBP Investigator that respondent violated the following provisions of the Code of Professional Responsibility, to wit: RULE 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. xxx CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. RULE 15.06 - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. xxx
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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 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. xxx CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence in him. xxx RULE 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information. xxx 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 advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Specifically with respect to above-quoted provision of Canon 16 of the Code of Professional Responsibility, the Filipino lawyers principal source of ethical rules, which Canon 16 bear s on the principal complaint of complainant, a lawyer must hold in trust all moneys and properties of his client that he may come to possess. This commandment entails certain specific acts to be done by a lawyer such as rendering an accounting of all money or property received for or from the clienti[36] as well as delivery of the funds or property to the client when due or upon demand.i[37] Respondent breached this Canon when after he received the proceeds of complainants insurance claim, he did not repor t it to complainant, who had a given address in Makati, or to his co-attorney-in-fact Garcia who was his contact with respect to complainant. In fact, long after respondent received the December 23, 1998 check for P525,000.00 he, by his letter of March 26, 1999 to Garcia, had even the temerity to state that the claim was still pending and recommend acceptance of the 50% offer . . . which is P350,000.00 pesos. His explanation that he prepared and sent this letter on Garcias express request is nauseating. A lawyer, like respondent, would not and should not commit prevarication, documented at that, on the mere request of a friend. By respondents failure to promptly account for the funds he received and held for the benefit of his client, he committed professional misconduct.i[38] Such misconduct is reprehensible at a greater degree, for it was obviously done on purpose through the employment of deceit to the prejudice of complainant who was kept in
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the dark about the release of the check, until he himself discovered the same, and has to date been deprived of the use of the proceeds thereof. A lawyer who practices or utilizes deceit in his dealings with his client not only violates his duty of fidelity, loyalty and devotion to the clients cause but also degr ades himself and besmirches the fair name of an honorable profession.i[39] That respondent had a lien on complainants funds for his attorneys fees did not relieve him of his duty to account for it.i[40] The lawyers continuing exercise of his retaining lien presupposes that the client agrees with the amount of attorneys fees to be charged. In case of disagreement or when the client contests that amount for being unconscionable, however, the lawyer must not arbitrarily apply the funds in his possession to the payment of his fees.i[41] He can file, if he still deems it desirable, the necessary action or proper motion with the proper court to fix the amount of such fees.i[42] In respondents case, he never had the slightest attempt to bring the matter of h is compensation for judicial determination so that his and complainants sharp disagreement thereon could have been put to an end. Instead, respondent stubbornly and in bad faith held on to complainants funds with the obvious aim of forcing complainant to agree to the amount of attorneys fees sought. This is an appalling abuse by respondent of the exercise of an attorneys retaining lien which by no means is an absolute right and cannot at all justify inordinate delay in the delivery of money and property to his client when due or upon demand. Respondent was, before receiving the check, proposing a 25% attorneys fees. After he received the check and after complainant had discovered its release to him, he was already asking for 50%, objection to which complainant communicated to him. Why respondent had to doubly increase his fees after the lapse of about one year when all the while he has been in custody of the proceeds of the check defies comprehension. At any rate, it smacks of opportunism, to say the least. As for respondents claim in his June 2001 Supplement to his Counter-Affidavit that he had on several occasions from May 1999 to October 1999 already delivered a total of P233,000.00 out of the insurance proceeds to Garcia in trust for complainant, this does not persuade, for it is bereft of any written memorandum thereof. It is difficult to believe that a lawyer like respondent could have entrusted such total amount of money to Garcia without documenting it, especially at a time when, as respondent alleged, he and Garcia were not in good terms.i[43] Not only that. As stated earlier, respondents Counter -Affidavit of February 18, 2000 and his December 7, 1999 letter to complainant unequivocally contained his express admission that the total amount of P525,000.00 was in his custody. Such illogical, futile attempt to exculpate himself only aggravates his misconduct. Respondents claim discredited, the affidavits of Leonardo and Roxas who, acting allegedly for him, purportedly gave Garcia some amounts forming part of the P233,000.00 are thus highly suspect and merit no consideration. The proven ancillary charges against respondent reinforce the gravity of his professional misconduct. The intercalation of respondents name to the Chinabank check that was iss ued payable solely in favor of complainant as twice certified by Metropolitan Insurancei[44] is clearly a brazen act of falsification of a commercial document which respondent resorted to in order to encash the check. Respondents threat in his December 7, 1999 letter to expose complainant to possible sanctions from certain government agencies with which he bragged to have a good network reflects lack of character, self -respect, and justness.
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It bears noting that for close to five long years respondent ha s been in possession of complainants funds in the amount of over half a million pesos. The deceptions and lies that he peddled to conceal, until its discovery by complainant after about a year, his receipt of the funds and his tenacious custody thereof in a grossly oppressive manner point to his lack of good moral character. Worse, by respondents turnaround in his Supplement to his Counter-Affidavit that he already delivered to complainants friend Garcia the amount of P233,000.00 which, so respondent claims, is all that complainant is entitled to, he in effect has declared that he has nothing more to turn over to complainant. Such incredible position is tantamount to a refusal to remit complainants funds, and gives rise to the conclusion that he has misappropriated them.i[45] In fine, by respondents questioned acts, he has shown that he is no longer fit to remain a member of the noble profession that is the law. WHEREFORE, respondent Atty. Amadeo E. Balon, Jr., is found GUILTY of malpractice, deceit and gross misconduct in the practice of his profession as a lawyer and he is hereby DISBARRED. The Office of the Clerk of Court is directed to strike out his name from the Roll of Attorneys and to inform all courts and the Integrated Bar of the Philippines of this Decision. Respondent is ordered to turn over to complainant, Daniel Lemoine, the amount of P525,000.00 within thirty (30) days from notice, without prejudice to whatever judicial action he may take to recover his attorneys fees and purported expenses incurred in securing the release thereof from Metropolitan Insurance. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Ynares-Santiago, J., on leave.
Canon 17
ROSACIA V. ATT. BULALACAO, A.C. NO. 3745, OCTOBER 2, 1995 SECOND DIVISION
A.C. No. 3745 October 2, 1995 CYNTHIA B. ROSACIA, complainant, vs. ATTY. BENJAMIN B. BULALACAO, respondent. RESOLUTION
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FRANCISCO, J.: Complainant Cynthia B. Rosacia, president of Tacma, Phils., Inc., a duly registered corporation, filed a complaint for disbarment dated October 25, 1991, against herein respondent Atty. Benjamin B. Bulalacao. Acting on the complaint, the Court in a resolution dated February 24, 1992, resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Commissioner Victor C. Fernandez, the IBP investigating commissioner, found that respondent breached his oath of office and accordingly recommended respondent's suspension from the practice of law for three (3) months. 1 In a resolution dated July 30, 1994, the IBP Board of Governors resolved to adopt and approve the commissioner's report and recommendation. 2 As found by the IBP, the undisputed facts are as follows:
On June 1, 1990, by virtue of a written Agreement (Exh. "3-a"), respondent Atty. Benjamin B. Bulalacao was hired as retained counsel of a corporation by the name of Tacma Phils., Inc. On October 31, 1990, the lawyer-client relationship between the respondent and Tacma Phils., Inc. was severed as shown by another agreement of even date (Exh. "3-b"). On July, 1991, or after almost nine (9) months from the date respondent's retainer agreement with Tacma, Phils., Inc. was terminated, several employees of the corporation consulted the respondent for the purpose of filing an action for illegal dismissal. Thereafter, he agreed to handle the case for the said employees as against Tacma, Phils., Inc. by filing a complaint before the National Labor Relations Commission, and appearing in their behalf. 3
The sole issue to be addressed is whether or not respondent breached his oath of office for representing the employees of his former client, Tacma, Phils., Inc., after the termination of their attorney-client relationship. We agree with the findings of the IBP that respondent breached his oath of office. Respondent does not now dispute this. In fact, in his motion for reconsideration, respondent admitted that he "did commit an act bordering on grave misconduct, if not outright violation of his attorney's oath". 4 However, respondent is pleading for the Court's compassion and leniency to reduce the IBP recommended three months suspension to either fine or admonition with the following proffered grounds: that he is relatively new in the profession having been admitted to the Philippine Bar on April 10, 1990 at the age of 46 when the complained conduct was committed on August 1991; that he is of humble beginnings and his suspension will deprive his family of its only source of livelihood he being the sole bread winner in the family; that he has fully realized his mistake and the gravity of his offense for which he is fully repentant; that he has severed his attorney-client relationship with the employees of Tacma, Phils., Inc. by inhibiting himself and withdrawing his appearance as counsel in the labor case against Tacma, Phils., Inc.; and that he pledges not to commit the same mistake and to henceforth strictly adhere to the professional standards set forth by the Code of Professional Responsibility. The Court reiterates that an attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated as it is not good practice to permit him afterwards to defend in another case other person against his former client under the pretext that the case is distinct from, and independent of the former case. 5 It behooves respondent not only to keep inviolate the client's confidence, but also to avoid the appearance of
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treachery and double dealing for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice. 6 The relation of attorney and client is one of confidence and trust in the highest degree. 7 A lawyer owes fidelity to the cause of his client and he ought to be mindful of the trust and confidence reposed in him. 8 An attorney not only becomes familiar with all the facts connected with his client's cause, but also learns from his client the weak and strong points of the case. No opportunity must be given attorneys to take advantage of the secrets of clients obtained while the confidential relation of attorney and client exists. Otherwise, the legal profession will suffer by the loss of the confidence of the people. 9 Respondent's plea for leniency cannot be granted. We note that respondent is new in the profession as he was just admitted to the Philippine Bar on April 10, 1990, when the breach of his oath of office occurred more than a year after. Having just hurdled the bar examinations which included an examination in legal ethics, surely the precepts of the Code of Professional Responsibility to keep inviolate the client's trust and confidence even after the attorney-client relation is terminated 10 must have been still fresh in his mind. A lawyer starting to establish his stature in the legal profession must start right and dutifully abide by the norms of conduct of the profession. This will ineluctably redound to his benefit and to the upliftment of the legal profession as well. ACCORDINGLY, respondent is hereby SUSPENDED from the practice of law for three months. Let this resolution be attached to respondent's record in the Office of the Bar Confidant and copies thereof furnished to all courts and to the Integrated Bar of the Philippines. Regalado, Puno and Mendoza, JJ., concur. Narvasa, C.J., is on leave.
LORENZANA FOOD CORP. V. DARIA, A.C. NO. 2736, May 27, 1991 SECOND DIVISION
A.C. No. 2736 May 27, 1991 LORENZANA FOOD CORPORATION represented by Mr. SOLOMON U. LORENZANA, JR., as its President and General Manager, and/or Mrs. ELIZABETH L. DIAZ, as its Vice-President, petitioners, vs. ATTY. FRANCISCO L. DARIA, respondent. Jose Feliciano Loy, Jr. for petitioners. RESOLUTION
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PER CURIAM:p The respondent lawyer, Atty. Francisco L. Daria, is administratively charged 1 on two counts, to wit: 1. Negligence and 2. Betrayal of his former client's confidences. A verified complaint dated February 22, 1985 was filed by Lorenzana Food Corporation LFC, hereinafter), and received by the Court on February 25, 1985. 2 The Court, on June 10, 1985, resolved to refer this case to the Office of the Solicitor General for investigation, report, and recommendation. After proper proceedings, the Office of the Solicitor General submitted its "Report and Recommendation," dated February 21, 1990 and received by the Court on February 26, 1990. From the findings made by the Solicitor General, the pertinent facts may be summarized as follows:
Respondent Francisco L. Daria is charged with negligence and betrayal of his former client's confidences. The following facts are in connection with the charge of negligence: Respondent was hired by complainant Lorenzana Food Corporation (LFC) on January 8, 1981 as its legal counsel and was designated as its personnel manager six months later (tsn. pp. 6-7, Dec. 9, 1985). On May 23, 1983, LFC employee, Violeta Hanopol, filed a complaint for illegal dismissal and other monetary claims against complainant before the Ministry (now Department) of Labor and Employment (MOLE). On May 30, 1983, summons was served on the parties with the requirement that position papers be submitted (Exh. G). During the initial hearing on June 13, 1973 * (sic) Hanopol and respondent tried to explore the possibility of an amicable settlement. Since no agreement was reached the hearing was reset to June 17, 1983. On the pretext that Hanopol was supposed to go to his office on that date respondent failed to appear for the second setting (tsn. pp. 14-15, Dec. 9, 1985). So, the Labor Arbiter was constrained to further reset the hearing to June 28, 1983. Respondent received on June 23, 1983 the Order for the resetting to June 1983 (Exh. J). In the meantime, on June 20, 1983, respondent received an Order in another labor case, setting the hearing therein also on June 28, 1983 (Exh. H-6). Faced with a conflicting schedule, respondent decided to move to postpone the hearing in the Hanopol case. However, instead of filing a written motion for postponement, he opted to call, through his secretary, the Office of the Labor Arbiter to move for postponement (Exh. H-5; tsn. p. 16, Dec. 9, 1985). Respondent's telephone message apparently failed to reach the Labor Arbiter, because at the hearing on June 28, 1983, he considered the case submitted for decision on the basis of Hanopol's complaint and affidavit (Exh. G-1). Respondent had not submitted a position paper. After a month, on July 29, 1983, the Labor Arbiter issued a Decision directing LFC to pay Hanopol the total sum of P6,469.60 in labor benefits, on the basis of Hanopol's evidence alone. Respondent Daria appealed the Decision to the National Labor Relations Commission (NLRC) on August 23, 1983 (Exh. 4). The case was remanded to the Labor Arbiter for further proceedings. The case was set
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for hearing on June 25, 1984 and July 12, 1984 wherein attempts for an amicable settlement still proved futile. The Labor Arbiter set two more dates for hearing: July 27, 1984 and August 8, 1984 (tsn. pp. 21-22, Dec. 9, 1985). In the meantime, the middle of June 1984, respondent signified to management his intention to resign. In the light of this development, management hired Atty. Rogelio Udarbe to take his place on July 16, 1984, the effective date of his resignation (Exh. 2). Respondent endorsed the cases of complainant to Atty. Udarbe (tsn. pp. 23-25, Dec. 9, 1985). During the hearings in the Hanopol case on July 27, 1984 and August 8, 1984, no one appeared for complainant. So, on August 15, 1984, Hanopol filed a "Manifestation and Motion" praying that the earlier Decision of the Labor Arbiter dated July 29, 1983 be revived. (Exh. 5). On September 1, 1984, Atty. Jose Loy, Jr. was hired by complainant LFC vice Atty. Udarbe and he immediately came across the abovementioned "Manifestation and Motion". On September 5, 1984, he filed an Opposition (Exh. 6) thereto, and on September 19, 1984, he followed this up with a position paper for LFC (Exh. 7). However, the Labor Arbiter had already revived his earlier Decision dated July 29, 1983 in another Decision dated September 4, 1984, thereby prompting Atty. Loy to appeal the latter Decision (Exh. 3). In a resolution dated May 9, 1985, the NLRC ordered anew the remand of the case for further proceedings (Exh. 8). In connection with the other charge of betrayal by respondent of his former client's confidences, the following facts appear on record: While respondent was still connected with complainant, its general manager, Sebastian Cortes, issued a memorandum dated February 28, 1984 (Exh. C) to its employee, Roberto San Juan, requiring him to submit a written explanation for his alleged double liquidation and unliquidated cash advances. Another memorandum dated March 15, 1984 (Exh. D) was issued this time by complainant's internal auditor, Rosario L. Bernardo, addressed to complainant's president, summing up San Juan's unliquidated advances amounting to P9,351.15. Respondent was furnished a copy of this memorandum (Exh. D-3). The executive committee, to which respondent belongs, investigated San Juan on his unliquidated advances. On account of the gravity of the charge, respondent placed San Juan under preventive suspension, per his letter to him dated April 25, 1984 (Exh. E). On September 20, 1984, when respondent had already resigned, complainant sent a demand letter to San Juan requiring him to restitute the amount of P9,351.15 (Exh. N-2). Since he failed to pay the amount demanded, a complaint for estafa was lodged against him before the Office of the Provincial Fiscal. San Juan thereafter resigned and sought the assistance of respondent in the preparation of his counteraffidavit in January 1985 (tsn. p. 35, Nov. 5, 1985). Respondent prepared San Juan's counteraffidavit and signed it (Exh. F). San Juan then submitted his counteraffidavit to the Office of the Provincial Fiscal (tsn. p. 42, Nov. 5, 1985). 3 xxx xxx xxx
For failure to appear in two consecutive hearings and to submit a position paper in the Hanopol case which resulted in complainant LFC's default and judgment against it by the Labor Arbiter, the respondent is faulted for negligence. The respondent avers that Hanopol should have seen him in his office to work out a compromise agreement, on the scheduled day of the second hearing, June 17, 1983, but did not. 4 It is the finding of the Solicitor General that this excuse by the respondent is not borne by the Constancia 5 setting the case for hearing. The Constancia clearly states: "By agreement of the parties, case reset to June 17, 1983 at 2:00 p.m. as previously scheduled." 6 Since it was signed by
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both Hanopol and the respondent, the Solicitor General argues that the respondent's explanation is manifestly unsatisfactory. With regard to his second non-appearance for the hearing on June 2, 1983, the respondent justified his absence by claiming that he had another hearing on the same date and that he told his secretary to call up the Office of the Labor Arbiter to have the hearing of the Hanopol case postponed. 7 The Solicitor General avers:
. . . It is submitted that respondent's actuation was not warranted by the circumstances. As it turned out, the telephone request apparently did not reach the Labor Arbiter, thereby constraining him to declare complainant in default and render judgment against it. 8
In an effort to extricate himself from this charge, the respondent submits that since he was able to persuade the National Labor Relations Commission (NLRC) on appeal to set aside the Decision of the Labor Arbiter and to remand the case for further proceedings, then the charge of negligence should be considered moot and academic already. 9 We find this submission not meritorious. Instead, we agree ,with the position of the Solicitor General:
Respondent's plea is untenable. The setting aside of the adverse Decision of the Labor Arbiter cannot obliterate the effects of respondent's negligence. Indeed, had respondent attended the two scheduled hearings and filed the required position paper, then at least, there would have been no delay in the resolution of the case, which, perhaps, would have been in favor of complainant. The delay, by itself, was prejudicial to complainant because it deprived successor-counsel Atty. Loy of time which he should be devoting to other cases of complainant. In fact he had to prepare complainant's position paper which respondent should have done earlier (Exh. 7). 10
From the foregoing, it is manifest that the respondent is indeed guilty of negligence, a clear violation of the Code of Professional Responsibility: 11
CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
The other accusation against the respondent by the Solicitor General was that he had betrayed complainant LFC's confidences in violation of the then Canon 37 of the old Canons of Professional Ethics, to wit:
It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employee's and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantages of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client. xxx xxx xxx
Superseded by the Code of Professional Responsibility, the appropriate Canon now is:
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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.
The Solicitor General further found that the respondent assisted Roberto San Juan in the preparation of the counter-affidavit, 12 submitted in defense of the latter in the accusation of estafa filed against San Juan by LFC As a matter of fact, the respondent signed the jurat of the San Juan counteraffidavit he (respondent) helped prepare. It is also a fact that the respondent investigated this same charge of estafa while he was still the lawyer of the complainant and San Juan still likewise an employee of LFC Again, we concur with the findings and evaluation of the Office of the Solicitor General:
. . . Respondent, however, tried to extricate himself from his predicament by testifying that the counteraffidavit was prepared by a lawyer-friend, Atty. Joselito R. Enriquez, who had his (respondent's) name typed on it; that after reading it, he called up Atty. Enriquez so that he will delete his name and signature thereon; that he instructed San Juan to bring the counteraffidavit to Atty. Enriquez so that he will delete his name and signature, but San Juan did not obey him; and that San Juan filed the counteraffidavit with the office of the Provincial Fiscal with his name and signature still on it (tsn. pp. 4751, Dec. 9, 1985). It is submitted that, apart from being a mere afterthought, respondent's explanation is incredible. His foregoing testimony is not reflected in his comment on the complaint . . . 13
We are convinced that the respondent had betrayed the confidences of the complainant, his former client.
. . . An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated, and it is not a good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from and independent of the former case. 14
WHEREFORE, premises considered, the respondent is found guilty of both the charge of negligence, a transgression of Rule 18.03, Canon 18, and the charge of betrayal of his former client's confidences, in violation of Canon 17 of the Code of Professional Responsibility. The respondent is hereby SUSPENDED from the practice of law for a period of six (6) months. Let this Decision be entered in the personal records of the respondent and copies thereof furnished to all courts and IBP chapters. SO ORDERED. Melencio-Herrera, Paras, Padilla, Sarmiento and Regalado, JJ., concur.
Canon 18
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ADARNE V. ALDABA, A.C. NO. 801, JUNE 27, 1978
SECOND DIVISION A.M. No. 801 June 27, 1978 CESARIO ADARNE, complainant, vs. ATTY. DAMIAN V. ALDABA, respondent.
CONCEPCION JR., J.: Administrative action against the respondent attorney for gross negligence and misconduct, for failure to give his entire devotion to the interest of his client, warm zeal in the . maintenance and defense of his rights, and exertion of his utmost learning and ability in the prosecution and defense of his client, and for not taking steps to protect the interests of his client in the face of an adverse decision. The record shows that sometime in 1958, Raymunda Cumpio and her husband, Rufo Cumpio, filed an action for forcible entry against herein complaint Cesario Adarne, Aning Arante, and Miguel Inokando with the Justice of the Peace of Alang-alang Leyte. The case was docketed in the said court as Civil Case No. 96. Atty. Isauro Marmita represented the defendants who raised the issue of ownership of the land in question. After hearing the parties, the Justice of the Peace dismissed the complaint for lack of jurisdiction. Consequently, the plaintiffs therein appealed to the Court of First Instance of Leyte and the case was assigned to Branch VI of Carigara, where it was docketed as Civil Case No. 556. Resolving the issue interposed by the appellants, the Judge of the Court of First Instance found that the Justice of the Peace Court has jurisdiction over the case and returned the same to the lower court for trial on the merits. After trial on the merits, the Justice of the Peace again dismissed the case and the plaintiffs again appealed to the Court of First Instance of Leyte where the case was docketed anew as Civil Case No, 632. Attys. Arturo Mirales and Generoso Casimpan filed the answer for the defendants. 1 At the hearing of the case on August 7, 1961, the herein complainant Cesario Adarne, one of the defendants in the aforementioned Civil Case No. 632, noting that his attorneys had not yet arrived, prevailed upon the respondent Atty. Damian Aldaba, who was then present in court to attend the trial of an electoral case, to appear as counsel for them and ask for the Postponement of the trial. The respondent, who is a third degree cousin of the complainant, agreed, and entered a special appearance. Upon noticing that the plaintiffs and their counsel were not also present in court, the respondent, instead of asking for a postponement, moved for the dismissal of the case. "is motion was granted and the case was again dismissed. Thereafter, the plaintiff filed a motion for the reconsideration of the order, 2 to which the respondent filed an opposition in behalf of the defendants, 3 and the motion was denied. 4 Whereupon, the plaintiffs appealed to the Court of Appeals. After appropriate. proceedings, the appellee court set aside the order of dismissal and remanded the case to the lower court for further proceedings.
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At the hearing of the case on October 23, 1964 before the Court of First Instance of Leyte, the respondent was again prevailed upon by the complainant to appear in his behalf. The respondent entered a "special appearance" for the complainant and thereafter argued that the interest of justice would best be served of the defendants were allowed to file an action for quieting of title and the case heard jointly with the pending action for forcible entry. Finding merit in the argument, the court ordered the defendant Cesario Adarne to file an action for quieting of title within one (1) week and the plaintiffs to answer the same within the reglementary period, after which both cases would be tried jointly. The hearing was deferred until after the filing of the action for quieting of title. 5 On June 17, 1965, the court declared the defendants in default for their failure to appeal at the hearing set for that day and directed the plaintiffs to present evidence to support their claim. 6 On September 17, 1965, the court rendered a decision and a writ of execution was issued thereafter.
Because of this, Cesario Adarne filed the present complaint against the respondent Atty. Damian V. Aldaba on August 3, 1967, praying: Dahil dito, isinusumbong ko po ang aking Abogado ng "Mal practice" pabaya at pahamak sa kliente at sinisingil ko po siya ng pinsala katumbas sa sinisingil sa kin ng akin kalaban. O kaya lakarin niya na mapigil and decision ng Hukom sa C.F.I. at ulitin and hearing sa Forcible Entry. Kung hindi niya magagawa ito, ipinauubaya ko na po sa kataas taasan Hukoman and paglapat ng parusa. Sapagkat kung hindi p susugpo-in and masamang gawa naito ng mga ibang abogado na nabibili, lalala and sakit naito sa profession ng mga abogado, at lilikha ng maraming api, at habang naghahari and pangaapi, lalaganap and kriminalidad ng walang tigil, at walang katahimikan ang ating Demukrasya, at kung magkakagayon ang mga mamamayan at sapilitan sa kumunista sasamba. The respondent denied that he ever had any agreement with the complainant with respect to the handling of the latter's case in the Court of First Instance of Leyte, Carigara Branch, except for the "special appearance" that he entered for the complainant on August 7, 1961 and October 23, 1964, in view of the non-availability of the complainant's lawyers on said dates. The case referred to the Solicitor General for investigation, report and recommendation, 8 after which a complaint for the disbarment of the respondent attorney was filed. 9 The judgment by default rendered against the complainant cannot be attributed to the respondent attorney. The blame lies with the complainant for having engaged the services of several lawyers to handle his case without formally withdrawing the authority he had given to them to appear in his behalf as to place the responsibility upon the respondent. To add to the confusion, the complainant had also requested the clerk of court of the Court of First Instance of Leyte that he (complainant) be furnished with summons and subpoena accorded to him. 10 He also filed a motion by himself, 11 thus implying that he was handling his case personally. It appears that there have been three changes made of the attorneys for the complainant in the forcible entry case. The complainant was originally represented by Atty. Isauro Marmita who, upon his appointment to the Department of Labor, engaged Atty. de Veyra to take his place. 12 Then came Atty. Arturo Mirales and later, Atty. Generoso Casimpan. However, no formalities whatever were observed in those changes such that the respondent entered a "special appearance" for the complainant in order that he could ask for the dismissal of the case for the failure of the adverse party to prosecute. The rule followed on matters of substitution of attorneys as laid down by this Court is that no
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substitution of attorneys will be allowed unless there be filed: (1) a written application for such substitution; (2) the written consent of the client; (3) the written consent of the attorney substituted; and (4) in case such written consent can not be secured, there must be filed with the application proof of service of notice of such motion upon the attorney to be substituted, in the manner prescribed by the rules. Unless the foregoing formalities are complied with, substitution will not be permitted, and the attorney who properly appeared last in the cause, before such application for substitution, will be regarded as the attorney of record and will be held responsible for the proper conduct of the cause. 13 Besides, the respondent honestly believed that he had appeared for the complainant only for a special purpose and that the complainant had agreed to contact his attorney of record to handle his case after the hearing of October 23, 1964, so that he did nothing more about it. 14 It was neither gross negligence nor omission to have entertained such belief. An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge. It is well settled that in disbarment proceedings, the burden of proof rests upon the complainant and for the Court to exercise its disciplinary powers, the case against the respondent attorney must be established by convincing proof. In the instant case, there is no sufficient proof to warrant the disbarment of the respondent attorney. Neither is there culpable malpractice to justify his suspension. WHEREFORE, the present administrative complaint is hereby DISMISSED. SO ORDERED. Santos and Guerrero, JJ., concur. Antonio, J., concurs in the result. Fernando (Chairman) and Aquino, JJ., took no part.
Separate Opinions
BARREDO, J., concurring: I concur in the result since respondent made only a special appearance on Oct. 23, 1964, when he made a creditable showing for complainant. The counsel of record of complainant should have been the one to take the corresponding subsequent steps.
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Separate Opinions BARREDO, J., concurring: I concur in the result since respondent made only a special appearance on Oct. 23, 1964, when he made a creditable showing for complainant. The counsel of record of complainant should have been the one to take the corresponding subsequent steps.
REYES V. VITAN, A.C. NO. 5835, APRIL 15, 2005 THIRD DIVISION [A.C. No. 5835. April 15, 2005] CARLOS B. REYES, complainant, vs. ATTY. JEREMIAS R. VITAN, respondent. DECISION SANDOVAL-GUTIERREZ, J.: A lawyer shall serve his client with competence and diligence [1] and never neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. Indeed, it is his sworn duty not to delay no man for money or malice; and to conduct himself in a proper manner not only to his client, but also to the court, the legal profession and society at large.[2] This is an administrative complaint for disbarment filed by Carlos Reyes against Atty. Jeremias Vitan for gross negligence. The complaint alleges that sometime in June 2001, complainant Carlos Reyes hired the services of respondent Atty. Jeremias Vitan for the purpose of filing the appropriate complaint or charge against his sister-in-law, Estelita Reyes, and the latters niece, Julieta P. Alegonza; that both women refused to abide with the Decision of Judge Juan C. Nabong, Jr., of the Regional Trial Court, Branch 32, Manila, in Civil Case No. 99-92657 ordering the partition of the properties left by complainants brother Damaso B. Reyes; and that respondent, after receiving the amount of P17,000.00, did not take any action on complainants case. We referred the complaint to the Integrated Bar of the Philippines for investigation, report and recommendation. IBP Commissioner Lydia A. Navarro issued several orders to respondent directing him to file his answer to the complaint, but he failed to do so. He only sent his secretary to represent him during the proceedings. On April 18, 2001,[3] IBP Commissioner Navarro submitted to the IBP Board of Governors her Report and Recommendation quoted as follows:
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x x x. After going over the evidence on record, the undersigned noted that respondent ignored all the Orders issued by this Commission and neither did he comply with any of those Orders. Respondent even failed to submit the responsive pleadings he himself requested in his motion and only sent his assistant secretary to represent him in the scheduled hearings of this case. Up to and until the present, no pleadings was submitted despite respondents allegations that he was collating evidence to prove his side of the case. It was complainant who submitted the supposed letters of the respondent Estelita Reyes and Juliet Alegonza but there were no proofs when they sent and when the same were received by the addressee. Likewise, the complaint submitted by the complainant was only a format in the sense that it was not signed by the respondent; the RTC Branch No. was left blank; there was no Civil Case No. and there was no proof that said pleading was filed which amounts only to a mere scrap of paper and not a pleading or authenticated document in the legal parlance. As it is, nothing had been done by the respondent for the complainant as his client for the legal fees he collected which was paid by the complainant as reflected in the receipts issued by the respondent in handwritten forms and signed by him. Respondent not only violated Rule 18.03 and 18.04 of Cannon 18 of the Code of Professional Responsibility for having neglected a legal matter entrusted to him and did not inform complainant the status of his case but also disregarded the orders of the Commission without reasons which amounted to utter disrespect of authority and unethical conduct in the practice of his profession, thus, should be sanctioned. Wherefore, in view of the foregoing, the undersigned respectfully recommends that the respondent be suspended from the practice of his profession for a period of two (2) years from receipt hereof; and refund to the complainant the amount of P17,000.00 paid to him for not having extended his legal services to the complainant on a lawyer-client relationship within six (6) months from receipt hereof. On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-406 adopting and approving the above Report and Recommendation of IBP Commissioner Navarro. When respondent accepted the amount of P17,000.00 from complainant, it was understood that he agreed to take up the latters case and that an attorney-client relationship between them was established. From then on, it was expected of him to serve his client, herein complainant, with competence and attend to his cause with fidelity, care and devotion.
The act of receiving money as acceptance fee for legal services in handling complainants case and subsequently failing to render such services is a clear violation of Canon 18 of the Code of Professional Responsibility which provides that a lawyer shall serve his client with competence and diligence. More specifically, Rule 18.03 states: Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. A member of the legal profession owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights.[4] An attorney is expected to exert his best efforts and ability to preserve his clients cause, for the unwavering loyalty displayed to his client likewise serves the ends of justice. Verily, the entrusted privilege to practice law carries with it the corresponding duties, not only to the client, but also to the court, to the bar and to the public.
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In Santos vs. Lazaro,[5] we held that Rule 18.03 of the Code of Professional Responsibility, above-quoted, is a basic postulate in legal ethics. Indeed, when a lawyer takes a clients cause, he covenants that he will exercise due diligence in protecting his rights. The failure to exercise that degree of vigilance and attention expected of a good father of a family makes such lawyer unworthy of the trust reposed in him by his client and makes him answerable not just to his client but also to the legal profession, the courts and society. [6] Significantly, respondent also violated his oath as a lawyer, which declares in part, that he will not delay any man for money or malice and will 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 client. However, the recommended penalty by the IBP is too harsh. Jurisprudence shows that lighter sanctions have been imposed for violations of this nature, taking into consideration the gravity of the offense and the necessity of preserving the integrity of the legal profession. The facts of Sencio vs. Calvadores[7] bear a striking similarity to the present case. Respondent lawyer in Sencio did not return the money to complainant despite demand following his failure to file the case. During the proceedings before the IBP, respondent did not file his answer to the complaint nor appeared during the hearing notwithstanding his receipt of notices. We found him guilty of violation of the lawyers oath, malp ractice and gross misconduct and suspended him for six (6) months, and ordered to return to his client the amount of P12,000.00 with interest at 12% per annum from the date of the promulgation of our Resolution until the return of the amount. In Garcia vs. Manuel,[8] we suspended respondent lawyer from the practice of law for six (6) months and ordered him to render an accounting of all monies he received from the complainant. We found him guilty of gross misconduct. WHEREFORE, respondent Atty. Jeremias R. Vitan is hereby declared guilty of violation of Canon 18 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for a period of six (6) months effective upon notice of this Decision. He is ordered to return to complainant within five (5) days from notice the sum of P17,000.00 with interest of 12% per annum from the date of the promulgation of this Decision until the full amount shall have been returned. Let a copy of this Decision be furnished the Court Administrator for distribution to all courts of the land, the IBP, the Office of the Bar Confidant, and entered into respondents personal records as an attorney and as a member of the Philippine Bar. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.
Canon 19
GONZALES V. SABACAJAN, ADM. CASE NO. 4380, OCTOBER 13, 1995
SECOND DIVISION
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A.C. No. 4380 October 13, 1995 NICANOR GONZALES and SALUD B. PANTANOSAS, complainants, vs. ATTY. MIGUEL SABACAJAN, respondent.
REGALADO, J.: This resolves the administrative case filed by Nicanor Gonzales and Salud B. Pantanosas against Atty. Miguel Sabacajan on February 14, 1995, 1 the verified complaint wherefor alleges:
xxx xxx xxx 4. That sometime in October, 1994, complainants were informed by the Register of Deeds of Cagayan de Oro City that the complainants' owner's duplicate of title covering their lands, Transfer Certificate of Title Nos. T-91736 and T-91735 were entrusted to the office secretary of the respondent who in torn entrusted the same to respondent; 5. That respondent admitted and confirmed to the complainants that their titles are in his custody and has even shown the same (to) the complainant Salud B. Pantanosas but when demanded ( sic) to deliver the said titles to the complainant in a formal demand letter, marked as ANNEX "A," respondent refused and continues to refuse without any justification to give their titles (and) when confronted, respondent challenged the complainants to file any case in any court even in the Honorable Supreme Court; 6. That respondent's dare or challeng(e) is a manifestation of his arrogance taking undue advantage of his legal profession over the simplicity, innocence and ignorance of the complainants, one of whom is his blood relative, his aunt, for which complainants shudder with mental anguish; 7. That due to his challeng(e), the complainants sent a letter to the Honorable Supreme Court for enlightenment, copy of which is attached as ANNEX "B", for which the Honorable Supreme Court required 19 legible copies of a verified complaint; 8. That in spite of repeated demands, request(s) and pleas towards ( sic) respondent, respondent still fail(ed) and stubbornly refused without justification to surrender the said titles to the rightful owners, the complainants here(in), which act is tantamount to willful and malicious defiance of legal and moral obligations emanating from his professional capacity as a lawyer who had sworn to uphold law and justice, to the prejudice and damage of the complainants; 2 xxx xxx xxx
On March 22, 1995, the Court required respondent to comment on the foregoing complaint. In his unverified "Answer" thereto, respondent admitted having met Salud Pantanosas but claims that, to his recollection, "Nicanor Gonzales/Serdan" has never been to his office. Respondent likewise denied that he challenged anyone to file a case in any court, much less the Supreme Court. He also claims that he referred complainant Pantanosas to his client, Mr. Samto M. Uy of Iponan, Cagayan de Oro City, for whom he worked out the segregation of the titles, two of which are the subject of the instant case. 3
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Respondent likewise denies complainants' allegation that he is arrogant, in contrast to the innocence, simplicity and ignorance of said complainants. He contends that the truth of the matter is that complainants have been charged with a number of criminal and civil complaints before different courts. He also asserts that he was holding the certificates of title in behalf of his client, Samto M. Uy.
4
Atty. Sabacajan stresses, by way of defense, that "the instant action was chosen precisely to browbeat him into delivering the Certificates of Title to them without said certificates passing the hands of Mr. Samto Uy with whom the complainants have some monetary obligations." 5 In its resolution dated June 26, 1995, 6 for internal administrative purposes the Court referred this case to the Office of the Bar Confidant for the corresponding evaluation, report and recommendation. From the foregoing proceedings taken on this matter, the Court finds that respondent admitted having taken possession of the certificates of title of complainants but refused to surrender the same despite demands made by the latter. It follows, therefore, that it was incumbent upon him to show that he was legally justified in doing so. Instead, all he did was to inform this Court that "his obligation to deliver the certificates to Mr. Samto Uy excludes the delivery of said certificates to anyone else." 7 Respondent attached some certifications to his "Answer" to support his contention that complainants are notorious characters. However, the certifications indicate that most of the cases stated therein, especially those involving fraud, have been dismissed. With respect to those still pending, there is no indication as to the identity of the party who instituted the same, aside from the consideration that the remedy thereon is judicial in nature. At any rate, these aspersions on the character of complainants have no bearing on the misconduct of respondent charged in the present case. Respondent likewise submitted xerox copies of certain certificates of title in an effort to explain why he kept the certificates of title of complainants, that is, supposedly for the purpose of subdividing the property. However, an examination of the same does not show any connection thereof to respondent's claim. In fact, the two sets of certificates of title appear to be entirely different from each other. As a lawyer, respondent should know that there are lawful remedies provided by law to protect the interests of his client. The records do not show that he or his client have availed of said remedies, instead of merely resorting to unexplained, if not curt, refusals to accommodate the requests of complainants. Also, he cannot be unaware of the imposable sanctions on a counsel who resorts to unlawful means that would cause injustice to the adversaries of his client. The Court accordingly finds that respondent has not exercised the good faith and diligence required of lawyers in handling the legal affairs of their clients. If complainants did have the alleged monetary obligations to his client, that does not warrant his summarily confiscating their certificates of title since there is no showing in the records that the same were given as collaterals to secure the payment of a debt. Neither is there any intimation that there is a court order authorizing him to take and retain custody of said certificates of title. Apparently, respondent has disregarded Canon 15, Rule 15.07 of the Code of Professional Responsibility which provides that a lawyer shall impress upon his client the need for compliance with the laws and principles of fairness. Instead, he unjustly refused to give to complainants their
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certificates of titles supposedly to enforce payment of their alleged financial obligations to his client and presumably to impress the latter of his power to do so. Canon 19, Rule 19.01 ordains 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 charges to obtain an improper advantage in any case or proceeding. Respondent has closely skirted this proscription, if he has not in fact transgressed the same. On the foregoing considerations, the Court desires and directs that respondent should forthwith return the certificates of title of complainants. To ensure the same, he should be placed under suspension until he presents to the Court proof of receipt by complainants of their respective copies of Certificates of Title Nos. T-91735 and T-91736 or a judicial order or document authorizing or justifying the retention of possession thereof by respondent or his aforenamed client. WHEREFORE, Atty. Miguel Sabacajan is hereby SUSPENDED from the practice of law until he can duly show to this Court that the disputed certificates of title have been returned to and the receipt thereof duly acknowledged by complainants, or can present a judicial order or appropriate legal authority justifying the possession by him or his client of said certificates. He is further WARNED that a repetition of the same or similar or any other administrative misconduct will be punished more severely. Let a copy of this resolution be spread on the personal records of respondent and have copies thereof furnished to the Integrated Bar of the Philippines and duly circularized to all courts in the country. SO ORDERED. Narvasa, C.J., Puno, Mendoza and Francisco, JJ., concur.
Canon 20
LEVISTE V. CA, G.R. NO. L-29184, JANUARY 30, 1989
FIRST DIVISION G.R. No. L-29184 January 30, 1989 BENEDICTO LEVISTE, petitioner, vs. THE COURT OF APPEALS, HON. JUDGE LUIS B. REYES, COURT OF FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE GUZMAN, respondents.
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Benedicto Leviste for and in his own behalf. Gatchalian, Ignacio & Associates for respondents de Guzman.
GRIO-AQUINO, J.: The issue in this case is whether or not an attorney who was engaged on a contingent fee basis may, in order to collect his fees, prosecute an appeal despite his client's refusal to appeal the decision of the trial court. On September 7, 1963, the petitioner, a practicing attorney, entered into a written agreement with the private respondent Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under the will, a piece of real property at Sales Street, Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that petitioner's contigent fee would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will (Annex "A", p. 59, Rollo). In accordance with their agreement, Leviste performed the following services as Del Rosario's counsel: (1) Thoroughly researched and studied the law on probate and succession; (2) Looked for and interviewed witnesses, and took their affidavits; (3) Filed the petition for. probate is Special Proceeding No. 58325; (4) Made the proper publications; (5) Presented at the trial the following witnesses: a) Eleuterio de Jesus b) Lucita de Jesus c) Purita L. Llanes d) Rita Banu e) Jesus Lulod. On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to "conflicting interest." This consisted, according to the letter, in petitioner's moral obligation to protect the interest of his brother-in-law, Gaudencio M. Llanes, whom Del Rosario and the other parties in the probate proceeding intended to eject as lessee of the property which was bequeathed to Del Rosario under the will (Annex "B", p. 60, Rollo).
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On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.) In an order dated November 12, 1965 the trial court denied his motion on the ground that he had "not filed a claim for attorney's fees nor recorded his attorney's lien." (p. 3, Rollo.) On November 23, 1965, petitioner filed a "Formal Statement of Claim for Attorney's Fees and Recording of Attorney's Lien,' which was noted in the court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo). Although the order denying his motion to intervene had become final, petitioner continued to receive copies of the court's orders, as well the pleadings of the other parties in the case. He also continued to file pleadings. The case was submitted for decision without the respondents' evidence. On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a "Motion To Withdraw Petition for Probate" alleging that Del Rosario waived her rights to the devise in her favor and agreed that the De Guzman brothers and sisters who opposed her petition for probate, shall inherit all the properties left by the decedent. (Annex "F", p. 65, Rollo.) In an order of April 13, 1967 the trial court denied the motion to withdraw the petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo). Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses testified that the will and the testatrix's signature were in the handwriting of Maxima Reselva. The petitioner filed an appeal bond, notice of appeal, and record on appeal. The private respondents filed a motion to dismiss the appeal on the ground that petitioner was not a party in interest. The petitioner opposed the motion to dismiss his appeal, claiming that he has a direct and material interest in the decision sought to be reviewed. He also asked that he be substituted as partypetitioner, in lieu of his former client, Ms. Del Rosario. On March 28, 1968, the trial judge dismissed the appeal and denied petitioner's motion for substitution. The petitioner filed in the Court of Appeals a petition for mandamus (CA-G.R. No. 41248) praying that the trial court be ordered to give due course to his appeal and to grant his motion for substitution. On May 22, 1968, the Court of Appeals dismissed the petition for being insufficient in form and substance as the petitioner did not appear to be the proper party to appeal the decision in Special Proceeding No. 58325 (Annex 1, p. 77, Rollo). Upon the denial of his motion for reconsideration, petitioner appealed by certiorari to this Court, assigning the following errors against the Court of Appeals' resolution:
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1. The Court of Appeals erred in finding that the petitioner appears not to be the proper party to appeal the decision in Sp. Proc. No. 58325 of the Court of First Instance of Manila. 2. Assuming the petitioner's right of appeal is doubtful, the Court of Appeals erred in dismissing his petition for mandamus; and 3. The Court of Appeals erred in not reversing the decision in Sp. Proc. No. 58325 denying the probate of the holographic will of the late Maxima C. Reselva, said decision being patently erroneous. Under his first assignment of error, petitioner argues that by virtue of his contract of services with Del Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contigent attorney's fees. The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent's will, she lost her right to inherit any part of the latter's estate. There is nothing for the petitioner to accept in her name. This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for contingent attorney's fees) neither gives, nor purports to give, to the appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount thereof is simply a basis for the computation of said fees." The Court of Appeals did not err in dismissing the petition for mandamus, for while it is true that, as contended by the petitioner, public policy favors the probate of a will, it does not necessarily follow that every will that is presented for probate, should be allowed. The law lays down procedures which should be observed and requisites that should be satisfied before a will may be probated. Those procedures and requirements were not followed in this case resulting in the disallowance of the will. There being no valid will, the motion to withdraw the probate petition was inconsequential.
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Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the probate of the will. His only interest in the estate is an indirect interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is only indirectly interested in a will may not interfere in its probate. Thus:
... the reason for the rule excluding strangers from contesting the will, is not that thereby the court maybe prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

We are of the opinion that the lower court did not err in holding that notice of an attorney's lien did not entitle the attorney-appellant to subrogate himself in lieu of his client. It only gives him the right to collect a certain amount for his services in case his client is awarded a certain sum by the court.
WHEREFORE, the petition for certiorari is denied for lack of merit. Costs against the petitioner. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ, concur.
LICUDAN V. CA, G.R. NO. 91958, JANUARY 24, 1991 THIRD DIVISION
G.R. No. 91958 January 24, 1991 WILFREDO D. LICUDAN and CRISTINA LICUDAN-CAMPOS, petitioners, vs. THE HONORABLE COURT OF APPEALS and ATTY. TEODORO O. DOMALANTA, respondents. Arnold V. Guerrero & Associates for petitioners. Teodoro O. Domalanta for and on his behalf as private respondent.
GUTIERREZ, JR., J.:p The practice of law is a profession rather than trade. Courts must guard against the charging of unconscionable and excessive fees by lawyers for their services when engaged as counsel. Whether or not the award of attorney's fees in this case is reasonable, being in the nature of contingent fees, is the principal issue.
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This petition for review on certiorari assails: 1) The Decision of the public respondent dated September 12, 1989 which dismissed the petitioners' appeal thereby upholding the reasonableness of the respondent lawyer's lien as attorney's fees over the properties of his clients; and 2) The Resolution of the public respondent dated January 30, 1990 which denied the petitioners' motion for reconsideration. The grounds relied upon by the petitioners are as follows:
The respondent Court, in upholding the entitlement of private respondent-attorney on the attorney's fees he claimed, decided the question in a manner not in accord with law or with the applicable decisions of this Honorable Tribunal. The respondent Court, in refusing to review and determine the propriety, reasonableness and validity of the attorney's fees claimed by the private respondent-attorney, departed from the usual course of judicial proceedings. The respondent Court, in failing to declare the attorney's fees claimed by the private respondent-attorney as unconscionable, excessive, unreasonable, immoral and unethical, decided the question in a way not in accord with law and with applicable decisions of this Honorable Tribunal. (Petition, pp. 12-13; Rollo, pp. 16-17)
The following are the antecedent facts pertinent to the case at bar: The respondent lawyer was retained as counsel by his brother-in-law and sister, the now deceased petitioners' parents, spouses Aurelio and Felicidad Licudan. His services as counsel pertained to two related civil cases docketed as Civil Case No. Q-12254 for partition and Civil Case No. Q-28655 for a sum of money in connection with the redemption of the property subject matter of the two cases covered by Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City. In both cases, the respondent lawyer obtained a judgment in favor of his clients. On August 13,1979, the respondent lawyer filed a Petition for Attorney's Lien with Notification to his Clients which substantially alleged that his clients executed two written contracts for professional services in his favor which provided that:
a) The undersigned counsel is entitled to own 97.5 square meters of the plaintiff's share of the lot in question. b) The undersigned counsel shall have a usufructuary right for a period of ten (10) years of plaintiffs' share of the lot in question. c) And that all damages accruing to plaintiffs to be paid by the defendant is for the undersigned counsel.(Annex "H" of the Petition, Rollo, p. 54)
On September 19, 1979, the trial court handling Civil Case No. Q-12254 ordered the annotation at the back of TCT No. 818 of the Register of Deeds of Quezon City of the respondent lawyer's Contract for Professional Services dated August 30, 1979 signed by petitioner Wilfredo Licudan and Aurelio Licudan on his own behalf and on behalf of his daughter, petitioner Cristina Licudan-Campos. The
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said trial court's Order, being one of two Orders being essentially challenged in this petition, is reproduced below:
Before the court for consideration is a Petition for Attorney's Lien filed by Atty. Teodoro D. Domalanta, counsel for the plaintiff, praying that his attorney's fees be annotated as a lien at the back of Transfer Certificate of Title No. 818 of the Register of Deeds of Quezon City, subject matter of this case. For the protection of the plaintiffs, the court required the plaintiff Aurelio Licudan as well as his son to appear this morning. Plaintiff Aurelio Licudan together with his son Wilfredo Licudan, who appears to be intelligent and in fact he speaks (the) English language well, appeared. Both Aurelio and Wilfredo Licudan manifested that they have freely and voluntarily signed the Contract for Professional Services, dated August 30, 1979 and notarized before Notary Public Amado Garrovillas as Doc. No. 32, Page 8, Book No. XIX, Series of 1979. Considering the manifestation of plaintiff, Aurelio Licudan and Alfredo ( sic) Licudan that they have entered freely and voluntarily in the said contract of professional services, let the same be annotated at the back of TCT 818 of the Register of Deeds of Quezon City, upon payment of the required legal fees. (CA Decision, pp. 7-8; Rollo, pp. 36-37)
The Contract for Professional Services dated August 30, 1979 differs from the earlier contractual provisions in that it entitled the respondent lawyer to one-third (1/3) of the subject property or 90.5 square meters and provided for usufructuary rights over the entire lot in question in favor of the respondent lawyer's son, Teodoro M. Domalanta, Jr. for an agreed consideration. (Annex "J" of the Petition; Rollo, p. 59) On July 25, 1985, the respondent lawyer filed a motion ex parte to amend the Order dated September 19, 1979 so as to conform with an additional professional fee covering 31 square meters more of the lot for services rendered in Civil Case No. Q-28655 as evidenced by a Deed of Absolute Sale dated May 1, 1983 executed by Aurelio Licudan in favor of the respondent lawyer. On September 6, 1985, the trial court ordered the respondent lawyer to submit a subdivision plan in conformity with his attorney's fees contract under which one-third (1/3) of the property or 90.5 square meters was alloted to him. On September 23, 1985, the respondent lawyer filed a motion for reconsideration praying for the amendment of the Order dated September 19, 1979 to conform with the Deed of Absolute Sale dated May 1, 1983 which was executed after the annotation of the original attorney's lien of 90.5 square meters. On September 30, 1985, the trial court denied the motion on the ground that the respondent lawyer cannot collect attorney's fees for other cases in the action for partition. On October 4, 1985, the respondent lawyer filed a second motion for reconsideration of the Order dated September 6, 1985 explaining that what he sought to be included in the Order dated September 19, 1979 is the additional attorney's fees for handling the redemption case which was but a mere offshoot of the partition case and further manifesting that the additional 31 square meters as compensation for the redemption case must be merged with the 90.5 square meters for the partition case to enable the said respondent lawyer to comply with the Order dated September 6,1985 which directed him to submit a subdivision plan as required.
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On October 21, 1985, the trial court issued the second Order being assailed in this petition. The said Order reads:
Acting on the "Second Motion for Reconsideration" filed by Atty. Teodoro Domalanta and finding the same to be justified, let an attorney's lien be annotated in the title of the property for 31 square meters as attorney's fees of said Atty. Teodoro Domalanta in addition to the original 90.5 square meters. (CA Decision, p. 8; Rollo, p. 37)
On August 22, 1986, more than ten (10) months after the Orders of September 6, 1985 and October 21, 1985 had become final and executory, the petitioners as substituted heirs of the respondent lawyers' deceased clients filed a motion to set aside orders on the ground that the award of professional fees covering 121.5 square meters of the 271.5 square meter lot is unconscionable and excessive. After the respondent lawyer filed his Opposition to the above petitioners' motion, the lower court, on August 29, 1986, finding that the petitioners as substituted plaintiffs are not in full agreement with the respondent lawyer's claim for attorney's fees, set aside its Orders dated September 6, 1985 and October 21, 1985. On September 16, 1986, the respondent lawyer filed a motion for reconsideration stressing the fact that the payment of the professional services was pursuant to a contract which could no longer be disturbed or set aside because it has already been implemented and had since then become final. This motion was denied on October 3, 1986. On November 15, 1986, the respondent lawyer filed a motion to set aside the orders dated August 29, 1986 and October 3, 1986 reiterating his position that the Orders of September 6, 1985 and October 21, 1985 have become final and are already implemented. The respondent lawyer further asked for the modification of the October 21, 1985 Order to reflect 60.32 square meters instead of 31 square meters only since the stipulation in the Additional Contract for Professional Services entitled him to 60.32 square meters. After the petitioners' Opposition to the said motion was filed, the trial court, on February 26, 1987, rendered an Order with the following dispositive portion:
WHEREFORE, this Court has no alternative but to set aside its orders of 29 August 1986 and 3 October 1986 and declare its Orders of 19 September 1979 and 21 October 1985 irrevocably final and executory. (CA Decision, p. 5; Rollo, p. 34)
On Appeal, the Court of Appeals ruled in favor of the respondent lawyer by dismissing the appeal and the prayed for writ of preliminary injunction. Their subsequent motion for reconsideration having been denied', the petitioners filed the instant petition. The petitioners fault the respondent Court for its failure to exercise its inherent power to review and determine the propriety of the stipulated attorney's fees in favor of the respondent lawyer and accuse the respondent lawyer of having committed an unfair advantage or legal fraud by virtue of the Contract for Professional Services devised by him after the trial court awarded him attorney's fees for P1,000.00 only instead of respecting the trust and confidence of the highest level reposed on him considering the close blood and affinal relationship between him and his clients.
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The petitioners contend that under the award for professional services, they may have won the case but would lose the entire property won in litigation to their uncle-lawyer. They would be totally deprived of their house and lot and the recovered damages considering that of the 271.5 square meters of the subject lot, the respondent lawyer is claiming 121.5 square meters and the remaining portion of 150 square meters would also go to attorney's fees since the said portion pertains to the lawyer's son by way of usufruct for ten (10) years. The aforesaid submissions by the petitioners merit our consideration. It is a well-entrenched rule that attorney's fees may be claimed in the very action in which the services in question have been rendered or as an incident of the main action. The fees may be properly adjudged after such litigation is terminated and the subject of recovery is at the disposition of the court. (see Camacho v. Court of Appeals, 179 SCRA 604 [1989]; Quirante v. Intermediate Appellate Court, 169 SCRA 769 [1989]). It is an equally deeply-rooted rule that contingent fees are not per se prohibited by law. They are sanctioned by Canon 13 of the Canons of Professional Ethics and Canon 20, Rule 20.01 of the recently promulgated Code of Professional Responsibility. However, as we have held in the case of Tanhueco v. De Dumo (172 SCRA 760 [1989]):
. . . When it is shown that a contract for a contingent fee was obtained by undue influence exercised by the attorney upon his client or by any fraud or imposition, or that the compensation is clearly excessive, the Court must and will protect the aggrieved party. (Ulanday v. Manila Railroad Co., 45 Phil. 540 [1923]; Grey v. Insular Lumber Co., 97 Phil. 833 [1955]).
In the case at bar, the respondent lawyer caused the annotation of his attorney's fees lien in the main action for partition docketed as Civil Case No. Q-12254 on the basis of a Contract for Professional Services dated August 30, 1979. We find reversible error in the Court of Appeals' holding that:
When the reasonableness of the appellee's lien as attorney's fees over the properties of his clients awarded to him by the trial court had not been questioned by the client, and the said orders had already become final and executory, the same could no longer be disturbed, not even by the court which rendered them (Taada v. Court of Appeals, 139 SCRA 419). (CA Decision p. 7; Rollo, p. 36)
On the contrary, we rule that the questioned Orders dated September 19, 1979 and October 21, 1985 cannot become final as they pertain to a contract for a contingent fee which is always subject to the supervision of the Court with regard to its reasonableness as unequivocally provided in Section 13 of the Canons of Professional Ethics which reads:
13. Contingent Fees. A contract for a contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness. (Emphasis supplied).
There is no dispute in the instant case that the attorney's fees claimed by the respondent lawyer are in the nature of a contingent fee. There is nothing irregular about the execution of a written contract for professional services even after the termination of a case as long as it is based on a previous agreement on contingent fees by the parties concerned and as long as the said contract does not
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contain stipulations which are contrary to law, good morals, good customs, public policy or public order. Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio Licudan for himself and on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both manifested in open court that they gave their free and willing consent to the said contract we cannot allow the said contract to stand as the law between the parties involved considering that the rule that in the presence of a contract for professional services duly executed by the parties thereto, the same becomes the law between the said parties is not absolute but admits an exceptionthat the stipulations therein are not contrary to law, good morals, good customs, public policy or public order (see Philippine American Life Insurance Company v. Pineda, 175 SCRA 416 [1989]; Syjuco v. Court of Appeals, 172 SCRA 111 [1989]). Under Canon 20 of the Code of Professional Responsibility, a lawyer shall charge only fair and reasonable fees. In determining whether or not the lawyer fees are fair and reasonable, Rule 20-01 of the same Code enumerates the factors to be considered in resolving the said issue. They are as follows:
a) The time spent and the extent of the services rendered or required; b) The novelty and difficulty of the questions involved; c) The importance of the subject matter; d) The skill demanded; e) The probability of losing other employment as a result of acceptance of the proferred case; f) The customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client from the service; h) The contingency or certainty of compensation; i) The character of the employment, whether occasional or established; and j) The professional standing of the lawyer.
A similar provision is contained under Section 24, Rule 138 of the Revised Rules of Court which partly states that:
Sec. 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. . . . A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.
All that the respondent lawyer handled for his deceased sister and brother-in-law was a simple case of partition which necessitated no special skill nor any unusual effort in its preparation. The
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subsequent case for redemption was admittedly but an offshot of the partition case. Considering the close blood and affinal relationship between the respondent lawyer and his clients, there is no doubt that Atty. Domalanta took advantage of the situation to promote his own personal interests instead of protecting the legal interests of his clients. A careful perusal of the provisions of the contract for professional services in question readily shows that what the petitioners won was a pyrrhic victory on account of the fact that despite the successful turnout of the partition case, they are now practically left with nothing of the whole subject lot won in the litigation. This is because aside from the 121.5 square meters awarded to Atty. Domalanta as attorney's fees, the said contract for professional services provides that the remaining portion shall pertain to the respondent lawyer's son by way of usufruct for ten (10) years. There should never be an instance where a lawyer gets as attorney's fees the entire property involved in the litigation. It is unconscionable for the victor in litigation to lose everything he won to the fees of his own lawyer. The respondent lawyer's argument that it is not he but his son Teodoro M. Domalanta, Jr. who is claiming the usufructuary right over the remaining portion of the subject lot is inaccurate. The records show that the matter of usufruct is tied up with this case since the basis for the said usufructuary right is the contract for professional services the reasonableness of which is being questioned in this petition. We find the ten-year usufruct over the subject lot part and parcel of the attorney's fees being claimed by the respondent lawyer. In resolving the issue of reasonableness of the attorney's fees, we uphold the time-honoured legal maxim that a lawyer shall at all times uphold the integrity and dignity of the legal profession so that his basic ideal becomes one of rendering service and securing justice, not money-making. For the worst scenario that can ever happen to a client is to lose the litigated property to his lawyer in whom an trust and confidence were bestowed at the very inception of the legal controversy. We find the Contract for Professional Services dated August 30, 1979, unconscionable and unreasonable. The amount of P20,000.00 as attorney's fees, in lieu of the 121.5 square meters awarded to the respondent lawyer and the ten-year usufructuary right over the remaining portion of 150 square meters by the respondent lawyer's son, is, in the opinion of this Court, commensurate to the services rendered by Atty. Domalanta. WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The Court of Appeals' decision of September 12, 1989 is hereby REVERSED and SET ASIDE. Atty. Domalanta is awarded reasonable attorney's fees in the amount of P20,000.00. SO ORDERED. Fernan, C.J., Feliciano and Bidin, JJ., concur.
RETUYA V. GORDUIZ, A.C. NO. 1388, MARCH 28, 1980 SECOND DIVISION A.M. No. 1388 March 28, 1980
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ANA F. RETUYA, complainant, vs. ATTY. IEGO A. GORDUIZ, respondent.
AQUINO, J: This disbarment case is linked to Administrative Case No. 1431-MJ which was filed by Ana F. Retuya against Municipal Judge Paulo A. Equipilag of Maasin, Leyte and which was decided on July 16, 1979 (Retuya vs. Equipilag). The facts of that case, which also gave rise to this disbarment case, are as follows: Ana F. Retuya, a widow with four minor children, filed a claim for workmen's compensation against Eastern Shipping Lines, Inc., the employer of her husband who died in 1968. In a decision dated December 4, 1970 the Workmen's Compensation Unit at Tacloban City awarded to Ana the sum of P8,792.10 consisting of (a) P6,000 as compensation benefits, (b) P2,292.10 for medical and hospitalization expenses, (c) P200 as burial expenses and (d) P300 as attorney's fees of Atty. Iego Gorduiz (Case No. 9728). The employer appealed. During the pendency of the appeal, the employer proposed to compromise the claim by paying P4,396.05 or only one-half of the total award. Ana accepted the proposal and directed that the amount be remitted to Fiscal Mamerto Daclan through the Philippine National Bank's branch at Maasin, Southern Leyte. The employer paid the reduced award on November 16, 1972. Ana sent to the employer the receipt and release signed by her with a covering letter dated December 19, 1972 wherein she explained that her lawyer, Gorduiz, did not sign the joint motion to dismiss the claim because he wanted twenty percent of the award as his attorney's fees. She was willing to give him ten percent. After she had cashed the check for P4,396.05, she was not able to contact Gorduiz and pay his fee. Then, unexpectedly, in February, 1973, she was served with a warrant of arrest issued in Criminal Case No. R-2362 of the municipal court of Maasin. To avoid detention, she had to post bail in the sum of one thousand pesos. It turned out that on January 12, 1973 Atty. Gorduiz executed an affidavit stating that Ana had misappropriated his attorney's fees amounting to three hundred pesos and that he had demanded payment of the amount from her but, she refused to make payment and. instead, she went to Cebu and starved there for a long time. On the basis of that affidavit, the acting chief of police filed against Ana a complaint for estafa in the municipal court of Maasin. After posting bail, she filed a motion to quash wherein she explained that she did not pay the fees of Atty.
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Gorduiz because he was demanding one-third of the award: that when she did not accede to his demand, he lowered his claim to eight hundred pesos, and that she bargained for six hundred fifty pesos but he refused to accept that amount. Ana averred that the estafa case was filed just to harass her. Judge Paulo A. Equipilag denied the motion to quash. He granted the motion of Atty. Gorduiz requiring Ana to produce a copy of the decision awarding her workmen's compensation for her husband's death. The estafa case was not tried. Atty. Erasmo M. Diola, as lawyer of Ana, offered to Atty. Gorduiz the sum of five hundred pesos as settlement of the case. The offer was accepted. On November 22, 1973, the acting child of police filed a motion to dismiss the case on the basis of the affidavit of Atty. Gorduiz ex. executed on that date stating that the prosecution witnesses had allegedly become hostile and that he was no longer interested in further prosecuting the case. Also, on that day, Judge Equipilag dismissed the case. In spite of the dismissal of the estafa case Ana F. Retuya felt aggrieved by the proceedings therein. In a complaint dated July 24, 1974 but filed in this Court on October 30, 1974, she asked for the disbarment or suspension of Atty. Gorduiz and Judge Equipilag. The disbarment case against Gorduiz was referred to the Solicitor General. The case against Judge Equipilag was investigated by the Judge of the Court of First Instance of Southern Leyte. This Court found that there was no justification for suspending respondent Judge. However, he was admonished to be more prudent and circumspect in the discharge of his duties so as to obviate the suspicion that, for an ulterior motive, he wall in cahoots with the offended party in a criminal case for the purpose of using the strong arm of the law that the accused in an oppressive and vindictive manner. The Solicitor General asked the provincial fiscal of Southern Leyte to investigate the case against Gorduiz. The fiscal in her report of July 8, 1975 recommended the of the case. The Solicitor General disagreeing with that recommendation, filed in this Court against Gorduiz a complaint wherein he prayed that Gorduiz be suspended for six months because the latter, in filing the estafa case, had promoted a groundless suit against his client. Ana F. Retuya testified before the investigation Fiscal that in December, 1972 she was willing to pay Gorduiz six hundred fifty pesos as his attorney's few but he demanded a bigger amount.He lodged a complaint for estafa against her and was arrests She had to post bail in the sum of one thousand pesos. As already stated above, the estafa case was later dismissed when Ana paid Gorduiz sum of five hundred pesos.
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In his testimony before the investigating fiscal and this Court's legal officer, respondent Gorduiz denied that he demanded as attorney's fees an amount higher than three hundred pesos. He explained that he filed the estafa cam because after Ana had received payment of the award, she did not turn over to him the attorney's fees of three hundred pesos in spite of her promises to pay the same and his demands for payment (Exh. 7 and 8). Gorduiz declared that Ana filed the disbarment case against him in order that she could evade the payment of his attorney's fees in the other cases which he had handled for her. It was also possible that someone who had a score to settle with Gorduiz had instigated the filing of this case against him. He further declared that he filed the estafa case because he thought that Ana had absconded when she stayed in Cebu City for a long time (23-24 tsn, June 26, 1979). He claimed that he spent one hundred pesos of his own money in gathering evidence which was presented in the workmen's compensation case. He had also advanced around two hundred pesos to cover the expenses in the other cases which he had handled for Ana. After reflecting on the conflicting contentions of the parties, the Court finds that there is justification for suspending the respondent. Respondent acted precipitately in filing a criminal action against his client for the supposed misappropriation of his attomey's fees. It is not altogether clear that his client had swindled him and, therefore, there is some basis for concluding that, contrary to his lawyer's oath, he had filed a suit against her and had harassed and embarrassed her. Paragraph 14 of the Canons of Legal Ethics prescribes that "controversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his selfrespect and with his right to receive reasonable recompense for his services; and lawsuits with clients should be resorted to only to prevent injustice, imposition or fraud." WHEREFORE, the respondent is from the practice of law for a period of six months counted from notice of this decision. A copy of this decision should be attached to his record in the Bar Confidant's office. SO ORDERED. Barredo (Chairman), Antonio and Concepcion Jr., JJ., concur.
Separate Opinions
ABAD SANTOS, J, concurring:

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There was no case of estafa against Ana F. Retuya, respondent's client. When he filed one against her he was guilty of harassment and firing an unfounded suit. I am for suspension for six months as recommended by the Solicitor General. Separate Opinions ABAD SANTOS, J, concurring: There was no case of estafa against Ana F. Retuya, respondent's client. When he filed one against her he was guilty of harassment and firing an unfounded suit. I am for suspension for six months as recommended by the Solicitor General.
RAMOS V. NGASEO, A.C. NO. 6210, DECEMBER 9, 2004 FIRST DIVISION [A.C. No. 6210. December 9, 2004] FEDERICO N. RAMOS, complainant, vs. ATTY. PATRICIO A. NGASEO, respondent. DECISION YNARES-SANTIAGO, J.: This is a complaint for suspension of respondent Atty. Patricio A. Ngaseo for violation of the Code of Professional Responsibility and Article 1491 of the Civil Code by demanding from his client, complainant Federico N. Ramos, the delivery of 1,000 square meters of land, a litigated property, as payment for his appearance fees. The facts as narrated by the complainant are as follows: Sometime in 1998, complainant Federico Ramos went to respondent Atty. Patricio Ngaseos Makati office to engage his services as counsel in a case [1] involving a piece of land in San Carlos, Pangasinan. Respondent agreed to handle the case for an acceptance fee of P20,000.00, appearance fee of P1,000.00 per hearing and the cost of meals, transportation and other incidental expenses. Complainant alleges that he did not promise to pay the respondent 1,000 sq. m. of land as appearance fees.[2] On September 16, 1999, complainant went to the respondents office to inquire about the status of the case. Respondent informed him that the decision was adverse to them because a congressman exerted pressure upon the trial judge. Respondent however assured him that they could still appeal the adverse judgment and asked for the additional amount of P3,850.00 and another P2,000.00 on September 26, 2000 as allowance for research made.[3]
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Although an appeal was filed, complainant however charges the respondent of purposely failing to submit a copy of the summons and copy of the assailed decision. Subsequently, complainant learned that the respondent filed the notice of appeal 3 days after the lapse of the reglementary period. On January 29, 2003, complainant received a demand-letter from the respondent asking for the delivery of the 1,000 sq. m. piece of land which he allegedly promised as payment for respondents appearance fee. In the same letter, respondent also threatened to file a case in court if the complainant would not confer with him and settle the matter within 30 days. Respondent alleged that sometime in the late 1997, a former client, Federico Ramos and his brother, Dionisio, went to his Makati office to engage his professional services in connection with a 2-hectare parcel of land situated in San Carlos, Pangasinan which the complainants family lost 7 years earlier through an executi on sale in favor of one Alfredo T. Castro. Complainant, who was deaf and could only speak conversational Tagalog haltingly, was assisted by his brother Dionisio. They came all the way from Pangasinan because no lawyer in San Carlos City was willing to handle the case. Complainant, through Dionisio, avers that he has consulted 2 local lawyers but did not engage their services because they were demanding exorbitant fees. One local lawyer was willing to handle the case for at least one-half of the land involved as his attorneys fee, plus cash expenses, while the other asked for of the land in addition to a large sum of money. Respondent agreed to handle the case for an acceptance fee of P60,000.00 plus an appearance fee of P3,000.00 per hearing. Complainant told him that he would consult his siblings on the matter. Six months later, i.e., in April 1998, complainant, assisted by one Jose Castillo, went to respondents office to discuss the legal fees. Complainant, through Castillo, told respondent that he was willing to pay an acceptance fee of P40,000.00, P20,000.00 of which shall be paid upon engagement and the remaining P20,000.00 to be paid after their treasure hunt operations in Nueva Viscaya were terminated. Further, complainant offered, in lieu of P3,000.00 per appearance, 1,000 sq. m. of land from the land subject matter of the case, if they win, or from another piece of property, if they lose. In addition, complainant also offered to defray the expenses for transportation, meals and other incidental expenses. Respondent accepted the complainants offer. Respondent claims that after the trial court dismissed Civil Case No. SCC 2128, he filed a timely notice of appeal and thereafter moved to be discharged as counsel because he had colon cancer. Complainant, now assisted by one Johnny Ramos, implored respondent to continue handling the case, with an offer to double the 1,000 sq. m. piece of land earlier promised and the remaining balance of P20,000.00 acceptance fee. Johnny Ramos made a written commitment and gave respondents secretary P2,000.00 of the P3,850.00 expenses for the preparation of the appellants brief. On July 18, 2001, the Court of Appeals rendered a favorable decision ordering the return of the disputed 2hectare land to the complainant and his siblings. The said decision became final and executory on January 18, 2002. Since then complainant allegedly failed to contact respondent, which compelled him to send a demand letter on January 29, 2003. On February 14, 2003, complainant filed a complaint before the IBP charging his former counsel, respondent Atty. Ngaseo, of violation of the Code of Professional Responsibility for demanding the delivery of 1,000 sq. m. parcel of land which was the subject of litigation. In a report dated July 18, 2003, IBP Commissioner Rebecca Villanueva-Maala found the respondent guilty of grave misconduct and conduct unbecoming of a lawyer in violation of the Code of Professional Responsibility and recommended that he be suspended from the practice of law for 1 year.[4]
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On August 30, 2003, the IBP Board of Governors passed Resolution No. XVI-2003-47 the full text of which reads:[5] RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering that respondent have violated the Code of Professional Responsibility for grave misconduct and conduct unbecoming of a lawyer Atty. Patricio A. Ngaseo is hereby SUSPENDED from the practice of law for six (6) months. On December 11, 2003, respondent filed a petition for review assailing IBP Resolution No. XVI-2003-47 for having been issued without or in excess of jurisdiction.[6] Respondent argues that he did not violate Article 1491 of the Civil Code because when he demanded the delivery of the 1,000 sq. m. of land which was offered and promised to him in lieu of the appearance fees, the case has been terminated, when the appellate court ordered the return of the 2-hectare parcel of land to the family of the complainant. Respondent further contends that he can collect the unpaid appearance fee even without a written contract on the basis of the principle of quantum meruit. He claims that his acceptance and appearance fees are reasonable because a Makati based legal practitioner, would not handle a case for an acceptance fee of only P20,000.00 and P1,000.00 per court appearance. Under Article 1491(5) of the Civil Code, lawyers are prohibited from acquiring either by purchase or assignment the property or rights involved which are the object of the litigation in which they intervene by virtue of their profession.[7] The prohibition on purchase is all embracing to include not only sales to private individuals but also public or judicial sales. The rationale advanced for the prohibition is that public policy disallows the transactions in view of the fiduciary relationship involved, i.e., the relation of trust and confidence and the peculiar control exercised by these persons.[8] It is founded on public policy because, by virtue of his office, an attorney may easily take advantage of the credulity and ignorance of his client and unduly enrich himself at the expense of his client.[9] However, the said prohibition applies only if the sale or assignment of the property takes place during the pendency of the litigation involving the clients property. Consequently, where the property is acquired after the termination of the case, no violation of paragraph 5, Article 1491 of the Civil Code attaches. Invariably, in all cases where Article 1491 was violated, the illegal transaction was consummated with the actual transfer of the litigated property either by purchase or assignment in favor of the prohibited individual. In Biascan v. Lopez, respondent was found guilty of serious misconduct and suspended for 6 months from the practice of law when he registered a deed of assignment in his favor and caused the transfer of title over the part of the estate despite pendency of Special Proceedings No. 98037 involving the subject property.[10] In the consolidated administrative cases of Valencia v. Cabanting,[11] the Court suspended respondent Atty. Arsenio Fer Cabanting for six (6) months from the practice of law when he purchased his client's property which was still the subject of a pending certiorari proceeding. In the instant case, there was no actual acquisition of the property in litigation since the respondent only made a written demand for its delivery which the complainant refused to comply. Mere demand for delivery of the litigated property does not cause the transfer of ownership, hence, not a prohibited transaction within the contemplation of Article 1491. Even assuming arguendo that such demand for delivery is unethical,
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respondents act does not fall within the purview of Article 1491. The letter of demand dated January 29, 2003 was made long after the judgment in Civil Case No. SCC-2128 became final and executory on January 18, 2002. We note that the report of the IBP Commissioner, as adopted by the IBP Board of Governors in its Resolution No. XVI-2003-47, does not clearly specify which acts of the respondent constitute gross misconduct or what provisions of the Code of Professional Responsibility have been violated. We find the recommended penalty of suspension for 6 months too harsh and not proportionate to the offense committed by the respondent. 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 the lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty.[12] All considered, a reprimand is deemed sufficient and reasonable. WHEREFORE, in view of the foregoing, respondent Atty. Patricio A. Ngaseo is found guilty of conduct unbecoming a member of the legal profession in violation of Rule 20.04 of Canon 20 of the Code of Professional Responsibility. He is REPRIMANDED with a warning that repetition of the same act will be dealt with more severely. SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.
DIRECTOR OF LANDS V. ABABA, G.R. NO. L-26096, FEBRUARY 27, 1979 FIRST DIVISION G.R. No. L-26096 February 27, 1979 THE DIRECTOR OF LANDS, petitioner, vs. SILVERETRA ABABA, ET AL., claimants, JUAN LARRAZABAL, MARTA C. DE LARRAZABAL, MAXIMO ABAROQUEZ and ANASTACIA CABIGAS, petitioners-appellants, ALBERTO FERNANDEZ, adverse claimant-appellee. Juanito Ll. Abao for petitioners-appellants. Alberto R Fernandez in his own behalf.
MAKASIAR, J.: This is an appeal from the order of the Court of First Instance of Cebu dated March 19, 1966 denying the petition for the cancellation of an adverse claim registered by the adverse claimant on the transfer certificate of title of the petitioners.
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The adverse claimant, Atty. Alberto B. Fernandez was retained as counsel by petitioner, Maximo Abarquez, in Civil Case No. R-6573 of the Court of First Instance of Cebu, entitled "Maximo Abarquez vs. Agripina Abarquez", for the annulment of a contract of sale with right of repurchase and for the recovery of the land which was the subject matter thereof. The Court of First Instance of Cebu rendered a decision on May 29, 1961 adverse to the petitioner and so he appealed to the Court of Appeals. Litigating as a pauper in the lower court and engaging the services of his lawyer on a contingent basis, petitioner, liable to compensate his lawyer whom he also retained for his appeal executed a document on June 10, 1961 in the Cebuano-Visayan dialect whereby he obliged himself to give to his lawyer one-half (1/2) of whatever he might recover from Lots 5600 and 5602 should the appeal prosper. The contents of the document as translated are as follows:
AGREEMENT KNOW ALL MEN BY THESE PRESENTS: That I, MAXIMO ABARQUEZ, Plaintiff in Case No. R-6573 of the Court of First Instance of Cebu, make known through this agreement that for the services rendered by Atty. Alberto B. Fernandez who is my lawyer in this case, if the appeal is won up to the Supreme Court, I Promise and will guarantee that I win give to said lawyer one-half (1/2) of what I may recover from the estate of my father in Lots No. 5600 and 5602 which are located at Bulacao Pardo, City of Cebu. That with respect to any money which may be adjudged to me from Agripina Abarquez, except 'Attorney's Fees', the same shall pertain to me and not to said lawyer. IN WITNESS WHEREOF, I have caused my right thumb. mark to be affixed hereto this 10th of June, 1961, at the City of Cebu. THUMBMARK MAXIMO ABARQUEZ (p. 5, Petitioner-Appellant's Brief, p. 26, rec.)
The real Property sought to be recovered in Civil Case No. R6573 was actually the share of the petitioner in Lots 5600 and 5602, which were part of the estate of his deceased parents and which were partitioned the heirs which included petitioner Maximo Abarquez and his elder sister Agripina Abarquez, the defendant in said civil case. This partition was made pursuant to a project of partition approved by the Court which provided am other that Lots Nos. 5600 and 5602 were to be divided into three equal Parts, one third of which shall be given to Maximo Abarquez. However, Agripina Abarquez the share of her brother stating that the latter executed an instrument of pacto de retro prior to the partition conveying to her any or all rights in the estate of their parents. Petitioner discovered later that the claim of his sister over his share was based on an instrument he was believe all along to be a mere acknowledgment of the receipt of P700.00 which his sister gave to him as a consideration for g care of their father during the latter's illness and never an instrument of pacto de retro. Hence, he instituted an action to annul the alleged instrument of pacto de retro. The Court of Appeals in a decision promulgated on August 27, 1963 reversed the decision of the lower court and annulled the dead of pacto de retro. Appellee Agripina Abarquez filed a motion for
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reconsideration but the same was denied in a resolution dated January 7, 1964 (p. 66, Record on Appeal; p. 13, Rec.) and the judgment became final and executory on January 22,1964. Subsequently, Transfer Certificate of Title No. 31841 was issued on May 19,1965 in the name of Maximo Abarquez, married to Anastacia Cabigas, over his adjudged share in Lots Nos. 5600 and 5602 containing an area of 4,085 square meters (p. 110, ROA; p. 13, rec.). These parcels of land later by the subject matter of the adverse claim filed by the claimant. The case having been resolved and title having been issued to petitioner, adverse claimant waited for petitioner to comply with ha obligation under the document executed by him on June 10, 1961 by delivering the one-half () portion of the said parcels of land. Petitioner refused to comply with his obligation and instead offered to sell the whole parcels of land covered by TCT No. 31841 to petitioner-spouses Juan Larrazabal and Marta C. de Larrazabal. Upon being informed of the intention of the petitioner, adverse t claimant immediately took stops to protect his interest by filing with the trial court a motion to annotate Ins attorney's lien on TCT No. 31841 on June 10, 1965 and by notifying the prospective buyers of his claim over the one-half portion of the parcels of land. Realizing later that the motion to annotate attorney's lien was a wrong remedy, as it was not within the purview of Section 37, rule 138 of the Revised Rule of Court, but before the same was by the trial court, adverse t by an affidavit of adverse claim on July 19, 1965 with the Register of Deeds of Cebu (p. 14, ROA; p. 13, rec.). By virtue of the petition of mid affidavit the adverse claim for one-half () of the lots covered by the June 10, 1961 document was annotated on TCT No. 31841. Notwithstanding the annotation of the adverse claim, petitioner-spouse Maximo Abarquez and Anastacia Cabigas conveyed by deed of absolute sale on July 29, 1965 two-thirds (2/3) of the lands covered by TCT No. 31841 to petitioner-spouses Juan Larrazabal and Marta C. de Larrazabal. When the new transfer certificate of title No. 32996 was issued, the annotation of adverse claim on TCT No. 31841 necessarily had to appear on the new transfer certificate of title. This adverse claim on TCT No. 32996 became the subject of cancellation proceedings filed by herein petitioner-spouses on March 7, 1966 with the Court of First Instance of Cebu (p. 2 ROA; p. 13, rec.). The adverse claimant, Atty. Alberto B. Fernandez, filed his opposition to the petition for cancellation on March 18, 1966 (p. 20, ROA; p. 13 rec.). The trial court resolved the issue on March 19, 1966, when it declared that:
...the petition to cancel the adverse claim should be denied. The admission by the petitioners that the lawyers (Attys. Fernandez and Batiguin) are entitled to only one-third of the lot described in Transfer Certificate of Title No. 32966 is the best proof of the authority to maintain said adverse claim (p. 57, ROA; p. 13, rec.).
Petitioner-spouses decided to appeal the order of dismissal to this Court and correspondingly filed the notice of appeal on April 1, 1966 with the trial court. On April 2, 1966, petitioner-spouses filed the appeal bond and subsequently filed the record on appeal on April 6, 1966. The records of the case were forwarded to this Court through the Land Registration Commission of Manila and were received by this Court on May 5, 1966.
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Counsel for the petitioner-spouses filed the printed record on appeal on July 12, 1966. Required to file the appellants' brief, counsel filed one on August 29, 1966 while that of the appellee was filed on October 1, 1966 after having been granted an extension to file his brief. The case was submitted for decision on December 1, 1966. Counsel for the petitioners filed a motion to expunge appellees' brief on December 8, 1966 for having been filed beyond the reglementary period, but the same was denied by this Court in a resolution dated February 13, 1967. The pivotal issue to be resolved in the instant case is the validity or nullity of the registration of the adverse claim of Atty. Fernandez, resolution of which in turn hinges on the question of whether or not the contract for a contingent fee, basis of the interest of Atty. Fernandez, is prohibited by the Article 1491 of the New Civil Code and Canon 13 of the Canons of Professional Ethics. Petitioners contend that a contract for a contingent fee violates Article 1491 because it involves an assignment of a property subject of litigation. That article provides:
Article 1491. The following persons cannot acquire by purchase even at a public or judicial auction, either in person or through the petition of another. xxx xxx xxx (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior and other o and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession (Emphasis supplied).
This contention is without merit. Article 1491 prohibits only the sale or assignment between the lawyer and his client, of property which is the subject of litigation. As WE have already stated. "The prohibition in said article a only to applies stated: " The prohibition in said article applies only to a sale or assignment to the lawyer by his client of the property which is the subject of litigation. In other words, for the prohibition to operate, the sale or t of the property must take place during the pendency of the litigation involving the property" (Rosario Vda. de Laig vs. Court of Appeals, et al., L-26882, November 21, 1978). Likewise, under American Law, the prohibition does not apply to "cases where after completion of litigation the lawyer accepts on account of his fee, an interest the assets realized by the litigation" (Drinker, Henry S., Legal Ethics, p. 100 [1953], citing App. A, 280; N.Y. Ciu 714). "There is a clear distraction between such cases and one in which the lawyer speculates on the outcome of the matter in which he is employed" (Drinker, supra, p. 100 citing A.B.A. Op. 279). A contract for a contingent fee is not covered by Article 1491 because the tranfer or assignment of the property in litigation takes effect only after the finality of a favorable judgment. In the instant case, the attorney's fees of Atty. Fernandez, consisting of one-half (1/2) of whatever Maximo Abarquez might recover from his share in the lots in question, is contingent upon the success of the appeal. Hence, the payment of the attorney's fees, that is, the transfer or assignment of one-half (1/2) of the property in litigation will take place only if the appeal prospers. Therefore, the tranfer actually takes effect after the finality of a favorable judgment rendered on appeal and not during the pendency of the litigation
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involving the property in question. Consequently, the contract for a contingent fee is not covered by Article 1491. While Spanish civilists differ in their views on the above issue whether or not a contingent fee contract (quota litis agreement) is covered by Article 1491 with Manresa advancing that it is covered, thus:
Se ha discutido si en la incapacidad de Ion Procumdam y Abogados asta o el pecto de quota litis. Consiste este, como es sabido, en la estipulacion de que el Abogado o el Procurador ban de hacer suyos una parte alicuota de In cona que se li m la son es favorable. Con es te concepto a la vista, es para nosortros que el articulo que comentamos no menciona ese pacto; pero como la incapacidad de los Abogados y Procuradores se extinede al acto de adquirir por cesion; y la efectividad del pacto de quota litis implica necesariamente una cesion, estimamos que con solo el num. 5 del articulo 1459 podria con exito la nulidad de ese pacto tradicionalmente considerado como ilicito. xxx xxx xxx Debe tenerse tambien en cuenta, respecto del ultimo parrafo del articulo 1459, la sentencia del Tribunal Supreme de 25 Enero de 1902, que delcara que si bien el procurador no puede adquirir para si los bienes, en cuanto a los cuales tiene incapacidad, puede adquirirlos para otra persona en quien no concurra incapacidad alguna (Manresa, Comentarios al Codigo Civil Espaol, Tomo X, p. 110 [4a ed., 1931] emphasis supplied).
Castan, maintaining that it is not covered, opines thus;

C. Prohibiciones impuestas a las personas encargadas, mas o menos directamente, de la administracion de justicia.El mismo art. 1,459 del Codigo civil prohibe a los Magistrados, Jueces, individuos del Minesterio fiscal, Secretarios de Tribunales y Juzgados y Oficiales de Justicia adquirir por compra (aunque sea en subasta publica o judicial, por si ni por persona alguna intermedia). 'Los bienes y derechos que estuviesen en litigio ante el Tribunal en cuya jurisdicion on teritorio ejercieran sus respectivas funciones, extendiendo se esta prohibicion al acto de adquirir por cesion', y siendo tambien extensiva ' Alos Abogados y Procuradores respecto a los bienes y derecho que fueran objeto del un litigio en que intervengan pos su profession y oficio.' El fundamento de esta prohibicion es clarismo. No solo se tratadice Manresade quitar la ocasion al fraude; persiguese, ademas, el proposito de rodear a las personas que intervienen en la administracion de justicia de todos los prestigios que necesitan para ejercer su ministerio, librando los de toda sospecha, que, aunque fuere infundada, redundaria en descredito de la institucion. Por no dor lugar a recelos de ninguna clase, admite el Codigo (en el apartado penutimo del art. 1.459) algunos casos en que, por excepcion, no se aplica el pricipio prohibitivo de que venimos hablando. Tales son los de que se trate de acciones hereditarias entre coheredero, de cesion en pago de creditos, o de garantia de los bienes que posean los funcionarios de justicia. Algunos autores (Goyena, Manresa, Valverde) creen que en la prohibicion del art. 1.459 esta comprendido el pacto de quota litis (o sea el convenio por el cual se concede al Abogado o Procurador, para el caso de obtener sentencia favorable una parte alicuota de la cosa o cantidad que se litiga), porque dicho pacto supone la venta o cesion de una parte de la cosa o drecho que es objecto del litigio. Pero Mucius Scaevola oberva, conrazon, que en el repetido pacto no hay propiamente caso de compraventa ni de cesion de derechos, y bastan para estimario nulo otros preceptos del Codigo como los relativos a la ilicitud de la causa (Castan, Derecho Civil Espol, Tomo 4, pp. 68-69, [9a ed., 1956], emphasis supplied).
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The Supreme Court of Spain, in its sentencia of 12 November 1917, has ruled that Article 1459 of the Spanish Civil Code (Article 1491 of our Civil Code) does not apply to a contract for a contingent fee because it is not contrary to morals or to law, holding that:
... que no es susceptible de aplicarse el precepto contenido en el num. 5 del art. 1.459 a un contrato en el que se restrigen los honorarios de un Abogado a un tanto por ciento de lo que se obtuviera en el litigio, cosa no repudiada por la moral ni por la ley (Tolentino, Civil Code of the Philippines, p. 35, Vol. V [1959]; Castan, supra; Manresa, supra).
In the Philippines, among the Filipino commentators, only Justice Capistrano ventured to state his view on the said issue, thus:
The incapacity to purchase or acquire by assignment, which the law also extends to lawyers with t to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession, also covers contracts for professional services quota litis. Such contracts, however, have been declared valid by the Supreme Court" (Capistrano, Civil Code of the Philippines, p. 44, Vol. IV [1951]).
Dr. Tolentino merely restated the views of Castan and Manresa as well as the state of jurisprudence in Spain, as follows:
Attorneys-at-lawSome writers, like Goyena, Manresa and Valverde believe that this article covers quota litis agreements, under which a lawyer is to be given an aliquot part of the property or amount in litigation if he should win the case for his client. Scaevola and Castan, however, believe that such a contract does not involve a sale or assignment of right but it may be void under other articles of the Code, such as those referring to illicit cause- On the other hand the Spanish Supreme Court has held that this article is not applicable to a contract which limits the fees of a lawyer to a certain percentage of what may be recovered in litigation, as this is not contrary to moral or to law . (Tolentino, Civil Code of the Philippines, p. 35, Vol. V [1959]; Castan, supra, Emphasis supplied).
Petitioners her contend that a contract for a contingent fee violates the Canons of Professional Ethics. this is likewise without merit This posture of petitioners overlooked Canon 13 of the Canons which expressly contingent fees by way of exception to Canon 10 upon which petitioners relied. For while Canon 10 prohibits a lawyer from purchasing ...any interest in the subject matter of the litigation which he is conducting", Canon 13, on the other hand, allowed a reasonable contingent fee contract, thus: "A contract for a con. tangent fee where sanctioned by law, should be reasonable under all the circumstances of the ca including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness." As pointed out by an authority on Legal Ethics:
Every lawyer is intensely interested in the successful outcome of his case, not only as affecting his reputation, but also his compensation. Canon 13 specifically permits the lawyer to contract for a con tangent fee which of itself, negatives the thought that the Canons preclude the lawyer's having a stake in his litigation. As pointed out by Professor Cheatham on page 170 n. of his Case Book, there is an inescapable conflict of interest between lawyer and client in the matter of fees. Nor despite some statements to the con in Committee opinions, is it believed that, particularly in view of Canon 13, Canon 10 precludes in every case an arrangement to make the lawyer's fee payable only out of the results of the litigation. The distinction is between buying an interest in the litigation as a speculation which Canon 10 condemns and agreeing, in a case which the lawyer undertakes primarily in his professional capacity, to accept his compensation contingent on the outcome (Drinker, Henry S Legal Ethics, p. 99, [1953], Emphasis supplied).
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These Canons of Professional Ethics have already received "judicial recognition by being cited and applied by the Supreme Court of the Philippines in its opinion" Malcolm, Legal and Judicial Ethics, p. 9 [1949]). And they have likewise been considered sources of Legal Ethics. More importantly, the American Bar Association, through Chairman Howe of the Ethics Committee, opined that "The Canons of Professional Ethics are legislative expressions of professional opinion ABA Op. 37 [1912])" [See footnote 25, Drinker, Legal Ethics, p. 27]. Therefore, the Canons have some binding effect Likewise, it must be noted that this Court has already recognized this type of a contract as early as the case of Ulanday vs. Manila Railroad Co. (45 PhiL 540 [1923]), where WE held that "contingent fees are not prohibited in the Philippines, and since impliedly sanctioned by law 'Should be under the supervision of the court in order that clients may be protected from unjust charges' (Canons of Profession 1 Ethics)". The same doctrine was subsequently reiterated in Grey vs. Insular Lumber Co. (97 PhiL 833 [1955]) and Recto vs. Harden (100 PhiL 427 [1956]). In the 1967 case of Albano vs. Ramos (20 SCRA 171 [19671), the attorney was allowed to recover in a separate action her attomey's fee of one-third (1/3) of the lands and damages recovered as stipulated in the contingent fee contract. And this Court in the recent case of Rosario Vda de Laig vs. Court of Appeals, et al. (supra), which involved a contingent fee of one-half () of the property in question, held than ,contingent fees are recognized in this i jurisdiction (Canon 13 of the Canons of Professional Ethics adopted by the Philippine Bar association in 1917 [Appendix B, Revised Rules of Court)), which contingent fees may be a portion of the property in litigation." Contracts of this nature are permitted because they redound to the benefit of the poor client and the lawyer "especially in cases where the client has meritorious cause of action, but no means with which to pay for legal services unless he can, with the sanction of law, make a contract for a contingent fee to be paid out of the proceeds of the litigation" (Francisco, Legal Ethics, p. 294 [1949], citing Lipscomb vs. Adams 91 S.W. 1046, 1048 [1949]). Oftentimes, contingent fees are the only means by which the poor and helpless can redress for injuries sustained and have their rights vindicated. Thus:
The reason for allowing compensation for professional services based on contingent fees is that if a person could not secure counsel by a promise of large fees in case of success, to be derived from the subject matter of the suit, it would often place the poor in such a condition as to amount to a practical denial of justice. It not infrequently happens that person are injured through the negligence or willful misconduct of others, but by reason of poverty are unable to employ counsel to assert their rights. In such event their only means of redress lies in gratuitous service, which is rarely given, or in their ability to find some one who will conduct the case for a contingent fee. That relations of this king are often abused by speculative attorneys or that suits of this character are turned into a sort of commercial traffic by the lawyer, does not destroy the beneficial result to one who is so poor to employ counsel (id, at p. 293, citing Warvelle, Legal Ethics, p. 92, Emphasis supplied).
Justice George Malcolm, writing on contingent fees, also stated that:

... the system of contingent compensation has the merit of affording to certain classes of persons the opportunity to procure the prosecution of their claims which otherwise would be beyond their means. In many cases in the United States and the Philippines, the contingent fee is socially necessary (Malcolm, Legal and Judicial Ethics, p. 55 [1949], emphasis supplied).
Stressing further the importance of contingent fees, Professor Max Radin of the University of California, said that:
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The contingent fee certainly increases the possibility that vexatious and unfounded suits will be brought. On the other hand, it makes possible the enforcement of legitimate claims which otherwise would be abandoned because of the poverty of the claimants. Of these two possibilities, the social advantage seems clearly on the side of the contingent fee. It may in fact be added by way of reply to the first objection that vexations and unfounded suits have been brought by men who could and did pay substantial attorney's fees for that purpose (Radin, Contingent Fees in California, 28 Cal. L. Rev. 587, 589 [1940], emphasis supplied).
Finally, a contingent fee contract is always subject to the supervision of the courts with respect to the stipulated amount and may be reduced or nullified. So that in the event that there is any undue influence or fraud in the execution of the contract or that the fee is excessive, the client is not without remedy because the court will amply protect him. As held in the case of Grey vs. Insular Lumber Co., supra, citing the case of Ulanday vs. Manila Railroad Co., supra:
Where it is shown that the contract for a contingent fee was obtained by any undue influence of the attorney over the client, or by any fraud or imposition, or that the compensation is so clearly excessive as to amount to extortion, the court win in a proper case protect the aggrieved party.
In the present case, there is no iota of proof to show that Atty. Fernandez had exerted any undue influence or had Perpetrated fraud on, or had in any manner taken advantage of his client, Maximo Abarquez. And, the compensation of one-half of the lots in question is not excessive nor unconscionable considering the contingent nature of the attorney's fees. With these considerations, WE find that the contract for a contingent fee in question is not violative of the Canons of Professional Ethics. Consequently, both under the provisions of Article 1491 and Canons 10 and 13 of the Canons of Profession Ethics, a contract for a contingent fee is valid In resolving now the issue of the validity or nullity for the registration of the adverse claim, Section 110 of the Land Registration Act (Act 496) should be considered. Under d section, an adverse claim may be registered only by..
Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the o registration ... if no other provision is made in this Act for registering the same ...
The contract for a contingent fee, being valid, vested in Atty Fernandez an interest or right over the lots in question to the extent of one-half thereof. Said interest became vested in Atty. Fernandez after the case was won on appeal because only then did the assignment of the one-half () portion of the lots in question became effective and binding. So that when he filed his affidavit of adverse claim his interest was already an existing one. There was therefore a valid interest in the lots to be registered in favor of Atty. Fernandez adverse to Mo Abarquez. Moreover, the interest or claim of Atty. Fernandez in the lots in question arose long after the original petition which took place many years ago. And, there is no other provision of the Land Registration Act under which the interest or claim may be registered except as an adverse claim under Section 110 thereof. The interest or claim cannot be registered as an attorney's charging lien. The lower court was correct in denying the motion to annotate the attomey's lien. A charging lien under Section 37, Rule 138 of the Revised Rules of Court is limited only to money judgments and not to judgments for the annulment of a contract or for delivery of real property as in the instant case. Said Section provides that:
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Section 37. An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his oppossession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments, for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client ... (emphasis supplied).
Therefore, as an interest in registered land, the only adequate remedy open to Atty. Fernandez is to register such interest as an adverse claim. Consequently, there being a substantial compliance with Section 110 of Act 496, the registration of the adverse claim is held to be valid. Being valid, its registration should not be cancelled because as WE have already stated, "it is only when such claim is found unmeritorious that the registration thereof may be cancelled" ( Paz Ty Sin Tei vs. Jose Lee Dy Piao 103 Phil. 867 [1958]). The one-half () interest of Atty. Fernandez in the lots in question should therefore be respected. Indeed, he has a better right than petitioner-spouses, Juan Larrazabal and Marta C. de Larrazabal. They purchased their two-thirds (2/3) interest in the lots in question with the knowledge of the adverse claim of Atty. Fernandez. The adverse claim was annotated on the old transfer certificate of title and was later annotated on the new transfer certificate of title issued to them. As held by this Court:
The annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property where the registration of such interest or right is not otherwise provided for by the Land Registration Act, and serves as a notice and warning to third parties dealing with said property that someone is claiming an interest on the same or a better right than the registered owner thereof (Sanchez, Jr. vs. Court of Appeals, 69 SCRA 332 [1976]; Paz Ty Sin Tei vs. Jose Le Dy Piao supra).
Having purchased the property with the knowledge of the adverse claim, they are therefore in bad faith. Consequently, they are estopped from questioning the validity of the adverse claim. WHEREFORE, THE DECISION OF THE LOWER COURT DENYING THE PETITION FOR THE CANCELLATION OF THE ADVERSE CLAIM SHOULD BE, AS IT IS HEREBY AFFIRMED, WITH COSTS AGAINST PETITIONER-APPELLANTS JUAN LARRAZABAL AND MARTA C. DE LARRAZABAL. SO ORDERED. Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Canon 21
SUNTAY V. SUNTAY, ADM. CASE NO. 1890, AUGUST 7, 2002 EN BANC [A.C. No. 1890. August 7, 2002]
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FEDERICO C. SUNTAY, complainant, vs. ATTY. RAFAEL G. SUNTAY, respondent. DECISION BELLOSILLO, J.: This Complaint for disbarment was filed by Federico C. Suntay against his nephew, Atty. Rafael G. Suntay, alleging that respondent was his legal counsel, adviser and confidant who was privy to all his legal, financial and political affairs from 1956 to 1964. However, since they parted ways because of politics and respondent's overweening political ambitions in 1964, respondent had been filing complaints and cases against complainant, making use of confidential information gained while their attorney-client relationship existed, and otherwise harassing him at every turn. Complainant enumerated the following cases filed by respondent to harass him: (a) Civil Case No. 4306-Mi[1] for injunction and damages in 1975, "Carlos Panganiban v. Dr. Federico Suntay," where respondent appeared as counsel for the plaintiff involving fishponds which respondent had previously helped to administer; (b) Civil Case No. 4726-M,i[2] "Narciso Lopez v. Federico Suntay," in 1970 where respondent appeared as counsel for the plaintiff to determine the real contract between the parties likewise involving the two (2) fishponds which respondent had previously helped to administer; (c) Civil Case No. 112764,i[3] "Magno Dinglasan v. Federico Suntay," for damages where respondent appeared as counsel for the plaintiff; and, (d) I.S. No. 77-1523, "Magno Dinglasan v. Federico Suntay," for false testimony and grave oral defamation before the Office of the Provincial Fiscal of Bulacan involving complainant's same testimony subject of the complaint for damages in Civil Case No. 112764. In addition, complainant alleged that respondent relentlessly pursued a case against him for violation of PD No. 296i[4] for the alleged disappearance of two (2) creeks traversing complainant's fishpond in Bulacan covered by TCT No. T-15674. Complainant alleged that respondent's possession and examination of the TCT and the blueprint plan of the property while he was still counsel for complainant provided him with the information that there used to be two (2) creeks traversing the fishpond, and that since respondent helped in the administration of the fishpond, he also came to know that the two (2) creeks had disappeared. Required to answer the charges respondent filed a "Motion to Order Complainant to Specify His Charges" alleging that complainant failed to specify the alleged "confidential information or intelligence" gained by him while the attorney-client relationship existed but which he allegedly used against complainant when the relationship terminated. Complainant filed his Comments thereon as required in our Resolution of 26 July 1978. Thereafter this case was referred to the Office of the Solicitor General (OSG) for investigation, report, and recommendation in our Resolution dated 23 October 1978. After almost four (4) years the OSG submitted its Report and Recommendation dated 14 October 1982 enumerating the following findings against respondent, to wit: The evidence presented by complainant which was largely unrebutted by respondent establish two counts of malpractice against respondent, one count of violating the confidentiality of client-lawyer relationship and one count of engaging in unethical conduct. 1. Respondent committed malpractice when he represented Magno Dinglasan in the case for false testimony and grave oral defamation filed by Magno Dinglasan against complainant before the Office of the Provincial Fiscal of Bulacan (I.S. No. 77-1523).
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The case stemmed from the testimony given by complainant on December 21, 1976, before the Court of First Instance of Bulacan in Civil Case No. 3930-M. When asked why Magno Dinglasan had testified against him in that case, complainant stated that he once declined the demand of Magno Dinglasan, a former official of the Bureau of Internal Revenue, for P150,000.00 as consideration for the destruction of complainants record in the Bureau. On account of that testimony, Magno Dinglasan charged complainant on July 29, 1977 with the crime of false testimony and grave oral defamation (Exhibits G and G-1). During the preliminary investigation of the case by the Office of the Provincial Fiscal of Bulacan, respondent acted as counsel for Magno Dinglasan. When the case was dismissed by the Office of the Provincial Fiscal of Bulacan and it was elevated to the Ministry of Justice on appeal, respondent continued to be the lawyer of Magno Dinglasan. Complainant testified in this disbarment proceeding that he consulted respondent, who was then his counsel, about the demand made in 1957 or 1958 by Magno Dinglasan for P150,000.00 as consideration for the destruction of complainants record in the Bureau of Internal Revenue. Respondents advice was for complainant to disregard the demand as it was improper. Later, when Magno Dinglasan reduced the amount to P50,000.00, complainant again consulted respondent. Respondent likewise advised complainant not to heed the demand (pp. 61-62, tsn, May 21, 1981). Respondents representation of Magno Dinglasan in I.S. No. 77-1523 constitutes malpractice (Section 27, Rule 138, Rules of Court) for respondent was previously the lawyer of complainant and respondent was consulted by complainant regarding the very matter which was the subject of the case. By serving as the lawyer of Magno Dinglasan, in I.S. No. 77-1523, respondent thus represented an interest which conflicted with the interest of his former client. 2. Respondent again committed malpractice when he served as lawyer of Magno Dinglasan in Civil Case No. 112764 before the Court of First Instance of Manila. Civil Case No. 112764 was an action for damages filed by Magno Dinglasan against complainant based, among others, on the same testimony that complainant gave on December 21, 1976 before the Court of First Instance of Bulacan in Civil Case No. 3930-M. For the same reasons set forth above, respondents representation of Magno Dinglasan in Civil Case No. 112764 constitutes malpractice as thereby he represented conflicting interests. 3. In filing a charge against complainant for alleged illegal destruction of dikes, respondent violated the confidentiality of information obtained out of a client-lawyer relationship. In his capacity as lawyer of complainant from 1956 to 1964, respondent had the following functions: Witness A: He was my lawyer from 1956 from the time he passed the bar up to sometime in 1964 and my legal adviser on political matters and legal matters. ATTY. AQUINO:
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Q: As your lawyer from 1956 to 1964, will you kindly inform the Honor able Hearing Officer what was the nature of the work of Atty. Suntay? A: He handled my cases on the titling of our properties. He served as my legal counsel in the Hagonoy Rural Bank of which my family is the majority stockholders. He used to help me manage my fishpond. He is our legal adviser on legal matters. He is our confidant. We have no secrets between us. He has complete access in our papers (tsn, May 21, 1981) Complainant owned several fishponds in Bulacan, among them, the fishpond covered by Transfer Certificate of Title No. T-15674. This fishpond was previously traversed by two creeks, Sapang Malalim and Sapang Caluang. The existence of the creeks is shown by the certificate of title and the blue print plan of the fishpond. In the certificate of title, the fishpond is bounded on the north and northeast by Sapang Caluang and on the west by Sapang Malalim (please see Exhibit 6). In a letter dated March 17, 1973, respondent reported the disappearance of the two creeks to the authorities. The Chief State Prosecutor referred the letter to the Office of the Provincial Fiscal of Bulacan. The Office of the Provincial Fiscal of Bulacan required the Public Works to conduct a re-survey. (Exhibit 6). In 1974, the Ministry of Public Works conducted a relocation survey of the fishpond. The relocation survey disclosed that there were no more creeks traversing the fishpond. Sapang Malalim and Sapang Caluang had disappeared. Respondent was requested to file a formal complaint with supporting affidavits, for violation of Presidential Decree No. 296. Respondent did so and the complaint was docketed as I.S. No. 74-193. (Exhibit 6) From the foregoing facts, it is clear that respondent made use of the information he gained while he was the lawyer of complainant as basis for his complaint for the building of illegal dikes. His possession and examination of Transfer Certificate of Title No. T-15674 and the blueprint plan provided him the information that there used to be two creeks traversing the fishpond covered by the title. Since he helped in the administration of the fishpond, he also came to know that the two creeks had disappeared. Thus, he gained the data which became the basis of his complaint when he was a lawyer and part administrator of complainant. Under the circumstances, there is a violation of professional confidence. 4. The evidence also establishes the commission of unethical conduct by respondent for serving as lawyer of Panganiban and Lopez x x x and for himself filing criminal charges against complainant which were later dismissed. The cases wherein respondent served as lawyer for the adversary of complainant or filed by respondent himself against complainant are the following: 1. Carlos Panganiban v. Federico Suntay, Civil Case No. 4306-M, CFI, Branch VII, Malolos, Bulacan; 2. Narciso Lopez v. Federico Suntay, Civil Case No. 4726-M, CFI, Branch II, Malolos, Bulacan; 3. Magno Dinglasan v. Federico Suntay, I.S. No. 77-1523, Office of the Provincial Fiscal of Bulacan; 4. Magno Dinglasan v. Federico Suntay, Civil Case No. 112764, CFI, Branch XX, Manila; and 5. Rafael G. Suntay and Magno Dinglasan v. Federico C. Suntay, I.S. No. 74-193, Office of the Provincial Fiscal of Bulacan, for violation of P.D. 296.
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While there may be validity to respondents contention that it is not improper for a lawyer to file a case against a former client, especially when the professional relationship had ended several years before, yet under the over-all circumstances of the case at bar it can not be said that respondent acted ethically. Complainant was not a mere client of respondent. He is an uncle and a political benefactor. The parties for whom respondent filed cases against complainant were former friends or associates of complainant whom respondent met when he was serving as the lawyer and general adviser of complainant. The cases filed by respondent were about properties which respondent had something to do with as counsel and administrator of complainant. xxxx IN VIEW OF THE FOREGOING, undersigned respectfully submit that the evidence establishes commission by respondent of malpractice for violating the confidentiality of client-lawyer relationship and engaging in unethical conduct x x x xi[5] Resolution of this case was delayed despite receipt of the foregoing Report and Recommendation in view of the Omnibus Motion to Remand Case to the Office of the Solicitor General; Motion to Disqualify Solicitor Rogelio Dancel to Act on this Case and Motion to Suspend Period to File Answer dated 18 January 1983 filed by respondent principally accusing handling Solicitor Dancel of having given unwarranted advantage and preference to the complainant in the investigation of the case. After several pleadings on the issue were filed by both respondent and Solicitor Rogelio Dancel, the Court in its Resolution dated 22 August 1983 denied respondent's motion to disqualify Solicitor Dancel and required the OSG to proceed with the investigation of this case. However, no further proceedings were conducted by the OSG until the records of the case together with other cases were turned over to the Integrated Bar of the Philippines (IBP) on 19 May 1988. After almost three (3) years from the time the records of this case were turned over to it, the IBP Commission on Bar Discipline submitted to this Court on 11 May 2001 Resolution No. XIV-2001-169 adopting and approving the Report and Recommendation of the Investigating Commissioner finding respondent guilty as charged. The IBP recommended that respondent Atty. Suntay be suspended from the practice of law for two (2) years for immoral conduct. In so recommending the Investigating Commissioner adopted in toto the findings of the OSG in its Report and Recommendation dated 14 October 1982. In our Resolution of 5 September 2001 we noted the foregoing IBP Resolution. However, in view of the penalty involved, this case was referred to the Court En Banc for final action pursuant to our Resolution dated 18 January 2000, Sec. 2, par. (b), in A.M. No. 99-12-08-SC.i[6] After a review of the records of this case, the Court finds the IBP Recommendation to be well taken. As found by both the OSG and the IBP Investigating Commissioner, respondent Atty. Rafael G. Suntay acted as counsel for clients in cases involving subject matters regarding which he had either been previously consulted by complainant or which he had previously helped complainant to administer as the latter's counsel and confidant from 1956 to 1964. Thus in Civil Cases Nos. 4306-M and 4726-M respondent acted as counsel for estranged business associates of complainant, namely, Carlos Panganiban and Narciso Lopez, the subject matter of which were the two (2) fishponds which respondent had previously helped to administer. On the other hand, I.S. No. 77-1523 for false testimony and grave oral defamation before the Office of the Provincial Fiscal of Bulacan, and Civil Case No. 112764 for damages before the then Court of First Instance of Manila, were filed in behalf of Magno Dinglasan, a former Bureau of Internal Revenue (BIR) official, regarding whose alleged demand for P150,000.00 from complainant in exchange for the destruction of the latter's record
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in the BIR, respondent had previously advised complainant to disregard. Civil Case No. 117624 and I.S. No. 77-1523 were precisely filed against complainant because the latter had previously testified on the alleged demand made by Dinglasan. Although respondent denied that there was ever such a demand made by Dinglasan, the point is that his word on the matter, i.e., whether there was in fact such a demand, would carry much weight against complainant considering that he was the latter's counsel in 1957 or 1958 when the alleged demand was made. In addition, respondent initiated the prosecution of complainant in I.S. No. 74-193 for violation of P.D. No. 296i[7] for the disappearance of the two (2) creeks, namely, Sapang Malalim and Sapang Caluang, previously traversing complainant's fishpond in Bulacan covered by TCT No. T-15674 by using information obtained while he was in possession of the certificate of title and the blueprint plan of the property. As the Code of Professional Responsibility provides: Rule 21.01. - A lawyer shall not reveal the confidences or secrets of his client except: a) When authorized by the client after acquainting him of the consequences of the disclosure; b) When required by law; c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. Rule 21.01. - 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. A lawyer shall preserve the confidences and secrets of his clients even after termination of the attorney-client relation.i[8] As his defense to the charges, respondent averred that complainant failed to specify the alleged confidential information used against him. Such a defense is unavailing to help respondent's cause for as succinctly explained in Hilado v. David - i[9] 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 the dealings between an attorney and a 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 complainants cause. And the theory would be productive of other unsalutary results. To make the passing of confidential communication a condition precedent, i.e., to make the employment conditioned on the scope and character of the knowledge acquired by an attorney in determining his right to change sides, would not enhance the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what they believe are their rights in litigation. The condition would of necessity call for an investigation of what information the attorney has received and in what way it is or it is not in conflict with his new position. Litigants would in consequence be wary in going to an attorney, lest by an unfortunate turn of the proceeding, if an investigation be held, the court should accept the attorneys inaccurate version of the facts that came to him x x x x Hence, the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice x x x x It is founded on principles of public policy, on good taste x x x x [T]he question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, l ike Caesars wife, not only to keep inviolate the
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clients 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. WHEREFORE, in view of the foregoing, IBP Resolution No. XIV-2001-169 dated 29 April 2001 is adopted and approved. For violating the confidentiality of lawyer-client relationship and for unethical conduct, respondent Atty. Rafael G. Suntay is SUSPENDED from the practice of law for two (2) years effective upon the finality hereof. Let copies 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. Davide, Jr., C.J., Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
Canon 22
MONTANO V. IBP, A.M. NO. 4215, MAY 21, 2001 FIRST DIVISION [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 i[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 CAG.R. CV No. 37467 wherein the complainant was the plaintiff-appellant. 2. The parties agreed upon attorneys 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 attorneys fee . 3. Thereafter, even before the respondent counsel had prepared the a ppellants 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.
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4. Prior to the filing of the appellants 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 complainants counsel without his prior knowledge and/or conf ormity. Returning the case folder to the complainant, respondent counsel attached a Note dated February 28, 1993, i[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 Resolutioni[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. Geronas daughter, he could not prepare and submit complainants appellants brief on time; 3. Complainant went to the respondent to do just that, i.e., prepare and submit his appellants 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 appellants 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 complainants part. 5. When that tomorrow or on a later particular date came, respondent, thru a messenger, reques ted 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
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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 complainants 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; 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 appellants brief although Atty. Gerona was his counsel of record. Such withdrawal was accordingly granted by the appellate court; xxx xxx xxx.i[4]
Respondent counsel further averred that complainants refusal to pay the agreed lawyers 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. Dealcas motion for reconsideration, to wit: xxx RESOLVED TO DENY Atty. Dealcas Motion For Reconsideration of the Boards 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.i[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) complainants 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;
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(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.i[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 aboveentitled case to Commissioner Vibar for evaluation, report and recommendation in view of the Motion f or 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.i[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.i[8] Complainant asked the IBP to reconsider the foregoing resolution but the motion was denied.i[9] On April 10, 2000, complainant filed with this Court a petition for review on certiorari in connection with Administrative Case No. 4215 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 counsels 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 respondents 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
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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. Dealcas 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 Courts 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 appellants brief and the attorneys fees was payable upon the completion and submission of the appellants brief and not u pon the termination of the case. There is sufficient evidence which indicates complainants willingness to pay the attorneys 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 complainants failure to pay the remaining balance of P3,500.00, which does not appear to be deliberate. The situation was aggravated by respondent counsels note to complainant withdrawing as counsel which was couched in impolit e and insulting language.i[10] Given the above circumstances, was Atty. Dealcas conduct just and proper ? We find Atty. Dealcas 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,i[11] under the circumstances of the present case, Atty. Dealcas withdrawal was unjustified as complainant did not deliberately fail to pay him the attorneys fees. In fact, complainant exerted honest efforts to fulfill his obligation. Respondents 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 complainants 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.i[12] In the present case, reprimand is deemed sufficient.
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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. Davide, Jr., C.J. (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
CANOY V. ORTIZ, A.C. NO. 5485, MARCH 16, 2005 SECOND DIVISION [A. C. No. 5485. March 16, 2005] ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ, respondent. DECISION TINGA, J.: There are no good reasons that would justify a lawyer virtually abandoning the cause of the client in the midst of litigation without even informing the client of the fact or cause of desertion. That the lawyer forsook his legal practice on account of what might be perceived as a higher calling, election to public office, does not mitigate the dereliction of professional duty. Suspension from the practice is the usual penalty, and there is no reason to deviate from the norm in this case. A Complaint[1] dated 10 April 2001 was filed with the Office of the Bar Confidant by Elmer Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty. Ortiz) of misconduct and malpractice. It was alleged that Canoy filed a complaint for illegal dismissal against his former employer, Coca Cola Bottlers Philippines. The complaint was filed with the National Labor Relations Commission (NLRC) Regional Arbitration Board VI in Bacolod City.[2] Atty. Ortiz appeared as counsel for Canoy in this proceeding. In 1998, the labor arbiter hearing the complaint ordered the parties to submit their respective position papers. Canoy submitted all the necessary documents and records to Atty. Ortiz for the preparation of the position paper. Thereafter, he made several unfruitful visits to the office of Atty. Ortiz to follow-up the progress of the case. After a final visit at the office of Atty. Ortiz in April of 2000, during which Canoy was told to come back as his lawyer was not present, Canoy decided to follow-up the case himself with the NLRC. He was shocked to learn that his complaint was actually dismissed way back in 1998, for failure to prosecute, the parties not having submitted their position papers.[3] The dismissal was without prejudice. Canoy alleged that Atty. Ortiz had never communicated to him about the status of the case, much less the fact that he failed to submit the position paper. The Comment[4] filed by Atty. Ortiz is the epitome of self-hagiography. He informs the Court that since commencing his law practice in 1987, he has mostly catered to indigent and low-income clients, at considerable financial sacrifice to himself. Atty. Ortiz claims that for more than ten years, his law office was a virtual adjunct of the Public Attorneys Office with its steady stream of non -paying clients in the hundreds or thousands.[5] At the same time, he hosted a legal assistance show on the radio, catering to far-flung municipalities and reaching the people who need legal advice and assistance.[6] Atty. Ortiz pursued on with this lifestyle until
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his election as Councilor of Bacolod City, a victory which he ge nerously attributes to the help of the same people whom he had helped by way of legal assistance before. [7] Canoy was among those low-income clients whom Atty. Ortiz deigned to represent. The lawyer was apparently confident that the illegal dismissal case would eventually be resolved by way of compromise. He claims having prepared the position paper of Canoy, but before he could submit the same, the Labor Arbiter had already issued the order dismissing the case.[8] Atty. Ortiz admits though that the period within which to file the position paper had already lapsed. He attributes this failure to timely file the position paper to the fact that after his election as Councilor of Bacolod City, he was frankly preoccupied with both his functions as a local government official and as a practicing lawyer. Eventually, his desire to help was beyond physical limitations, and he withdrew from his other cases and his free legal services. [9] According to Atty. Ortiz, Mr. Canoy should have at least understood that during all that time, he was free to visit or call the office and be entertained by the secretary as [he] would normally report to the office in the afternoon as he had to attend to court trials and report to the Sanggunian office. [10] He states that it was his policy to inform clients that they should be the ones to follow-up their cases with his office, as it would be too difficult and a financial burden to attend making follow-ups with hundreds of clients, mostly indigents with only two office personnel.[11] Nonetheless, Atty. Ortiz notes that the dismissal of Canoys complaint was without prejudice, thus the prescriptive period had been tolled. He claims not being able to remember whether he immediately informed Canoy of the dismissal of the case, though as far as he could recall, Canoy had conveyed a message to him that he had a lawyer to handle the case, thus his office did not insist on refiling the same. [12] The matter was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[13] Canoy eventually submitted a motion withdrawing the complaint, but this was not favorably acted upon by the IBP in view of the rule that the investigation of a case shall not be interrupted or terminated by reason of withdrawal of the charges.[14] Eventually, the investigating commissioner concluded that clearly, the records show that [Atty. Ortiz] failed to exercise that degree of competence and dil igence required of him in prosecuting his clients (sic) claim, and recommended that Atty. Ortiz be reprimanded. [15] The IBP Commission on Discipline adopted the recommendation, with the slight modification that Atty. Ortiz be likewise warned that a repetition of the same negligence shall be dealt with more severely in the future. The Court is sensitive to the difficulties in obtaining legal representation for indigent or low-income litigants. Apart from the heroic efforts of government entities such as the Public Attorneys Office, groups such as the IBP National Committee on Legal Aid and the Office of Legal Aid of the UP College of Law have likewise been at the forefront in the quest to provide legal representation for those who could not otherwise afford the services of lawyers. The efforts of private practitioners who assist in this goal are especially commendable, owing to their sacrifice in time and resources beyond the call of duty and without expectation of pecuniary reward. Yet, the problem of under-representation of indigent or low-income clients is just as grievous as that of nonrepresentation. Admirable as the apparent focus of Atty. Ortizs legal practice may have been, his particular representation of Canoy in the latters illegal dismissal case leaves much to be desired. Several of the canons and rules in the Code of Professional Responsibility guard against the sort of conduct displayed by Atty. Ortiz with respect to the handling of Canoys case.
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CANON 17A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. CANON 18A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. ... Rule 18.03A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Rule 18.04A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information. ... CANON 22A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES. ... Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter. Atty. Ortiz should have filed the position paper on time, owing to his duty as counsel of Canoy to attend to this legal matter entrusted to him. His failure to do so constitutes a violation of Rule 18.03 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, a 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 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.[16] If indeed Atty. Ortizs schedule, workload, or physical condition was such that he would not be able to make a timely filing, he should have informed Canoy of such fact. The relationship of lawyer-client being one of confidence, there is ever present the need for the client to be adequately and fully informed of the developments of the case and should not be left in the dark as to the mode and manner in which his/her interests are being defended.[17]
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There could have been remedies undertaken to this inability of Atty. Ortiz to file on time the position paper had Canoy been told of such fact, such as a request for more time to file the position paper, or maybe even the hiring of collaborating counsel or substitution of Atty. Ortiz as counsel. Since Atty. Ortiz did not exercise the necessary degree of care by either filing the position paper on time or informing Canoy that the paper could not be submitted seasonably, the ignominy of having the complaint dismissed for failure to prosecute could not be avoided. That the case was dismissed without prejudice, thus allowing Canoy to refile the case, hardly serves to mitigate the liability of Atty. Ortiz, as the failure to file the position paper is per se a violation of Rule 18.03.[18] Neither is the Court mollified by the circumstan ce of Atty. Ortizs election as a City Councilor of Bacolod City, as his adoption of these additional duties does not exonerate him of his negligent behavior. The Code of Professional Responsibility does allow a lawyer to withdraw his legal services if the lawyer is elected or appointed to a public office.[19] Statutes expressly prohibit the occupant of particular public offices from engaging in the practice of law, such as governors and mayors,[20] and in such instance, the attorney-client relationship is terminated.[21] However, city councilors are allowed to practice their profession or engage in any occupation except during session hours, and in the case of lawyers such as Atty. Ortiz, subject to certain prohibitions which are not relevant to this case.[22] In such case, the lawyer nevertheless has the choice to withdraw his/her services.[23] Still, the severance of the relation of attorney-client is not effective until a notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court or tribunal, and a copy thereof served upon the adverse party, and until then, the lawyer continues to be counsel in the case.[24] Assuming that Atty. Ortiz was justified in terminating his services, he, however, cannot just do so and leave complainant in the cold unprotected.[25] Indeed, Rule 22.02 requires that a lawyer who withdraws or is discharged shall, subject to a lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter. Atty. Ortiz claims that the reason why he took no further action on the case was that he was informed that Canoy had acquired the services of another counsel. Assuming that were true, there was no apparent coordination between Atty. Ortiz and this new counsel. In fact, it took nearly two years before Canoy had learned that the position paper had not been filed and that the case had been dismissed. This was highly irresponsible of Atty. Ortiz, much more so considering that Canoy was one of the indigent clients whom Atty. Ortiz proudly claims as his favored clientele. It does not escape the Courts attention that Atty. Ortiz faults Canoy for not adequately following up the case with his office. [26] He cannot now shift the blame to complainant for failing to inquire about the status of the case, since, as stated above, it was his duty as lawyer to inform his clients of the status of cases entrusted to him. [27] The appropriate sanction is within the sound discretion of this Court. In cases of similar nature, the penalty imposed by the Court consisted of either a reprimand, a fine of five hundred pesos with warning, suspension of three months, six months, and even disbarment in aggravated cases. [28] Given the circumstances, the Court finds the penalty recommended by the IBP too lenient and instead suspends Atty. Ortiz from the practice of law for one (1) month. The graver penalty of suspension is warranted in lieu of an admonition or a reprimand considering that Atty. Ortizs undisputed negligence in failing to timely file the position paper was compounded by his failure to inform Canoy of such fact, and the successive dismissal of the complaint. Lawyers who devote their professional practice in representing litigants who could ill afford legal services deserve commendation. However, this mantle of public service will not deliver the lawyer, no matter how wellPage 316 of 327
meaning, from the consequences of negligent acts. It is not enough to say that all pauper litigants should be assured of legal representation. They deserve quality representation as well. WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered SUSPENDED from the practice of law for one (1) month from notice, with the warning that a repetition of the same negligence will be dealt with more severely. Let a copy of this decision be attached to respondent's personal record in the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all the courts in the land. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.
Administrative Liabilities of Lawyers

IN RE: MAQUERA, B.M. NO. 793, JULY 30, 2004 EN BANC [B.M. No. 793. July 30, 2004] IN RE: SUSPENSION FROM THE PRACTICE OF LAW IN THE TERRITORY OF GUAM OF ATTY. LEON G. MAQUERA RESOLUTION TINGA, J.: May a member of the Philippine Bar who was disbarred or suspended from the practice of law in a foreign jurisdiction where he has also been admitted as an attorney be meted the same sanction as a member of the Philippine Bar for the same infraction committed in the foreign jurisdiction? There is a Rule of Court provision covering this cases central issue. Up to this juncture, its reach and breadth have not undergone the test of an unsettled case. In a Letter dated August 20, 1996,i[1] the District Court of Guam informed this Court of the suspension of Atty. Leon G. Maquera (Maquera) from the practice of law in Guam for two (2) years pursuant to the Decision rendered by the Superior Court of Guam on May 7, 1996 in Special Proceedings Case No. SP0075-94,i[2] a disciplinary case filed by the Guam Bar Ethics Committee against Maquera. The Court referred the matter of Maqueras suspension in Guam to the Bar Confidant for comment in its Resolution dated November 19, 1996.i[3] Under Section 27, Rule 138 of the Revised Rules of Court, the disbarment or suspension of a member of the Philippine Bar in a foreign jurisdiction, where he has also been admitted as an attorney, is also a ground for his disbarment or suspension in this realm, provided the foreign courts action is by reason of an act or omission constituting deceit, malpractice or other gross misconduct, grossly immoral conduct, or a violation of the lawyers oath.
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In a Memorandum dated February 20, 1997, then Bar Confidant Atty. Erlinda C. Verzosa recommended that the Court obtain copies of the record of Maqueras case since the documents transmitted by the Guam District Court do not contain the factual and legal bases for Maqueras suspension and are thus insufficient to enable her to determine whether Maqueras acts or omissions which resulted in his suspension in Guam are likewise violative of his oath as a member of the Philippine Bar. i[4] Pursuant to this Courts directive in its Resolution dated March 18, 1997,i[5] the Bar Confidant sent a letter dated November 13, 1997 to the District Court of Guam requesting for certified copies of the record of the disciplinary case against Maquera and of the rules violated by him. i[6] The Court received certified copies of the record of Maqueras case from the District C ourt of Guam on December 8, 1997.i[7] Thereafter, Maqueras case was referred by the Court to the Integrated Bar of the Philippines (IBP) for investigation report and recommendation within sixty (60) days from the IBPs receipt of the case records. i[8] The IBP sent Maquera a Notice of Hearing requiring him to appear before the IBPs Commission on Bar Discipline on July 28, 1998. i[9] However, the notice was returned unserved because Maquera had already moved from his last known address in Agana, Guam and did not leave any forwarding address.i[10] On October 9, 2003, the IBP submitted to the Court its Report and Recommendation and its Resolution No. XVI-2003-110, indefinitely suspending Maquera from the practice of law within the Philippines until and unless he updates and pays his IBP membership dues in full.i[11] The IBP found that Maquera was admitted to the Philippine Bar on February 28, 1958. On October 18, 1974, he was admitted to the practice of law in the territory of Guam. He was suspended from the practice of law in Guam for misconduct, as he acquired his clients property as payment for his legal services, then sold it and as a consequence obtained an unreasonably high fee for handling his clients case.i[12] In its Decision, the Superior Court of Guam stated that on August 6, 1987, Edward Benavente, the creditor of a certain Castro, obtained a judgment against Castro in a civil case. Maquera served as Castros counsel in said case. Castros property subject of the case, a parcel of land, was to be sold at a public auction in satisfaction of his obligation to Benavente. Castro, however, retained the right of redemption over the property for one year. The right of redemption could be exercised by paying the amount of the judgment debt within the aforesaid period.i[13] At the auction sale, Benavente purchased Castros property for Five Hundred U.S. Dollars (US$500.00), the amount which Castro was adjudged to pay him.i[14] On December 21, 1987, Castro, in consideration of Maqueras legal services in t he civil case involving Benavente, entered into an oral agreement with Maquera and assigned his right of redemption in favor of the latter.i[15] On January 8, 1988, Maquera exercised Castros right of redemption by paying Benavente US$525.00 in satisfaction of the judgment debt. Thereafter, Maquera had the title to the property transferred in his name. i[16] On December 31, 1988, Maquera sold the property to C.S. Chang and C.C. Chang for Three Hundred Twenty Thousand U.S. Dollars (US$320,000.00).i[17]
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On January 15, 1994, the Guam Bar Ethics Committee (Committee) conducted hearings regarding Maqueras alleged misconduct.i[18] Subsequently, the Committee filed a Petition in the Superior Court of Guam praying that Maquera be sanctioned for violations of Rules 1.5i[19] and 1.8(a)i[20] of the Model Rules of Professional Conduct (Model Rules) in force in Guam. In its Petition, the Committee claimed that Maquera obtained an unreasonably high fee for his services. The Committee further alleged that Maquera himself admitted his failure to comply with the requirement in Rule 1.8 (a) of the Model Rules that a lawyer shall not enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to a client unless the transaction and the terms governing the lawyers acquisition of such interest are fair and reasonable to the client, and are fully disclosed to, and understood by the client and reduced in writing.i[21] The Committee recommended that Maquera be: (1) suspended from the practice of law in Guam for a period of two [2] years, however, with all but thirty (30) days of the period of suspension deferred; (2) ordered to return to Castro the difference between the sale price of the property to the Changs and the amount due him for legal services rendered to Castro; (3) required to pay the costs of the disciplinary proceedings; and (4) publicly reprimanded. It also recommended that other jurisdictions be informed that Maquera has been subject to disciplinary action by the Superior Court of Guam.i[22] Maquera did not deny that Castro executed a quitclaim deed to the property in his favor as compensation for past legal services and that the transaction, except for the deed itself, was oral and was not made pursuant to a prior written agreement. However, he contended that the transaction was made three days following the alleged termination of the attorney-client relationship between them, and that the property did not constitute an exorbitant fee for his legal services to Castro.i[23] On May 7, 1996, the Superior Court of Guam rendered its Decisioni[24] suspending Maquera from the practice of law in Guam for a period of two (2) years and ordering him to take the Multi-State Professional Responsibility Examination (MPRE) within that period. The court found that the attorney-client relationship between Maquera and Castro was not yet completely terminated when they entered into the oral agreement to transfer Castros right of redemption to Maquera on December 21, 1987. It also held tha t Maquera profited too much from the eventual transfer of Castros property to him since he was able to sell the same to the Changs with more than US$200,000.00 in profit, whereas his legal fees for services rendered to Castro amounted only to US$45,000.00. The court also ordered him to take the MPRE upon his admission during the hearings of his case that he was aware of the requirements of the Model Rules regarding business transactions between an attorney and his client in a very general sort of way. i[25] On the basis of the Decision of the Superior Court of Guam, the IBP concluded that although the said court found Maquera liable for misconduct, there is no evidence to establish that [Maquera] committed a breach of ethics in the Philippines.i[26] However, the IBP still resolved to suspend him indefinitely for his failure to pay his annual dues as a member of the IBP since 1977, which failure is, in turn, a ground for removal of the name of the delinquent member from the Roll of Attorneys under Section 10, Rule 139-A of the Revised Rules of Court.i[27] The power of the Court to disbar or suspend a lawyer for acts or omissions committed in a foreign jurisdiction is found in Section 27, Rule 138 of the Revised Rules of Court, as amended by Supreme Court Resolution dated February 13, 1992, which states:
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Section 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office , grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. 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 supplied). The Court must therefore determine whether Maqueras acts, namely: acquiring by assignment Castros right of redemption over the property subject of the civil case where Maquera appeared as counsel for him; exercising the right of redemption; and, subsequently selling the property for a huge profit, violate Philippine law or the standards of ethical behavior for members of the Philippine Bar and thus constitute grounds for his suspension or disbarment in this jurisdiction. The Superior Court of Guam found that Maquera acquired his clients property by exercising t he right of redemption previously assigned to him by the client in payment of his legal services. Such transaction falls squarely under Article 1492 in relation to Article 1491, paragraph 5 of the Civil Code of the Philippines. Paragraph 5 of Article 1491i[28] prohibits the lawyers acquisition by assignment of the clients property which is the subject of the litigation handled by the lawyer. Under Article 1492,i[29] the prohibition extends to sales in legal redemption. The prohibition ordained in paragraph 5 of Article 1491 and Article 1492 is founded on public policy because, by virtue of his office, an attorney may easily take advantage of the credulity and ignorance of his client i[30] and unduly enrich himself at the expense of his client. The case of In re: Rustei[31] illustrates the significance of the aforementioned prohibition. In that case, the attorney acquired his clients property subject of a case where he was acting as counsel pursuant to a deed of sale executed by his clients in his favor. He contended that the sale was made at the instance of his clients because they had no money to pay him for his services. The Court ruled that the lawyers acquisition of the property of his clients under the circumstances obtaining therein rendered him liable for malpractice. The Court held: Whether the deed of sale in question was executed at the instance of the spouses driven by financial necessity, as contended by the respondent, or at the latters behest, as contended by the complainant, is of no moment. In either case an attorney occupies a vantage position to press upon or dictate his terms to a harassed client, in breach of the rule so amply protective of the confidential relations, which must necessarily exist between attorney and client, and of the rights of both.i[32] The Superior Court of Guam also hinted that Maqueras acquisition of Castros right of redemption, his subsequent exercise of said right, and his act of selling the redeemed property for huge profits were tainted with
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deceit and bad faith when it concluded that Maquera charged Castro an exorbitant fee for his legal services. The court held that since the assignment of the right of redemption to Maquera was in payment for his legal services, and since the property redeemed by him had a market value of US$248,220.00 as of December 21, 1987 (the date when the right of redemption was assigned to him), he is liable for misconduct for accepting payment for his legal services way beyond his actual fees which amounted only to US$45,000.00. Maqueras acts in Guam which resulted in his two (2) -year suspension from the practice of law in that jurisdiction are also valid grounds for his suspension from the practice of law in the Philippines. Such acts are violative of a lawyers sworn duty to act with fidelity toward his clients. They are also violative of the Code of Professional Responsibility, specifically, Canon 17 which states that [a] lawyer owes fidelity to the cause of his client and shall be mindful the trust and confidence reposed in him; and Rule 1.01 which prohibits lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct. The requirement of good moral character is not only a condition precedent to admission to the Philippine Bar but is also a continuing requirement to maintain ones goods standing in the legal profession.i[33] It bears stressing that the Guam Superior Courts judgment ordering Maqueras suspension from the practice of law in Guam does not automatically result in his suspension or disbarment in the Philippines. Under Section 27,i[34] Rule 138 of the Revised Rules of Court, the acts which led to his suspension in Guam are mere grounds for disbarment or suspension in this jurisdiction, at that only if the basis of the foreign courts action incl udes any of the grounds for disbarment or suspension in this jurisdiction.i[35] Likewise, the judgment of the Superior Court of Guam only constitutes prima facie evidence of Maqueras unethical acts as a lawyer. i[36] More fundamentally, due process demands that he be given the opportunity to defend himself and to present testimonial and documentary evidence on the matter in an investigation to be conducted in accordance with Rule 139-B of the Revised Rules of Court. Said rule mandates that a respondent lawyer must in all cases be notified of the charges against him. It is only after reasonable notice and failure on the part of the respondent lawyer to appear during the scheduled investigation that an investigation may be conducted ex parte.i[37] The Court notes that Maquera has not yet been able to adduce evidence on his behalf regarding the charges of unethical behavior in Guam against him, as it is not certain that he did receive the Notice of Hearing earlier sent by the IBPs Commission on Bar Discipline. Thus, there is a need to ascertain Maqueras current and correct address in Guam in order that another notice, this time specifically informing him of the charges against him and requiring him to explain why he should not be suspended or disbarred on those grounds (through this Resolution), may be sent to him. Nevertheless, the Court agrees with the IBP that Maquera should be suspended from the practice of law for nonpayment of his IBP membership dues from 1977 up to the present.i[38] Under Section 10, Rule 139-A of the Revised Rules of Court, non-payment of membership dues for six (6) months shall warrant suspension of membership in the IBP, and default in such payment for one year shall be ground for removal of the name of the delinquent member from the Roll of Attorneys.i[39] WHEREFORE, Atty. Leon G. Maquera is required to SHOW CAUSE, within fifteen (15) days from receipt of this Resolution, why he should not be suspended or disbarred for his acts which gave rise to the disciplinary proceedings against him in the Superior Court of Guam and his subsequent suspension in said jurisdiction. The Bar Confidant is directed to locate the current and correct address of Atty. Maquera in Guam and to serve upon him a copy of this Resolution.
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In the meantime, Atty. Maquera is SUSPENDED from the practice of law for ONE (1) YEAR or until he shall have paid his membership dues, whichever comes later. Let a copy of this Resolution be attached to Atty. Maqueras personal record in the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts in the land. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Carpio-Morales, Callejo, Sr., Azcuna, and Chico-Nazario, JJ., concur. Corona, J., on leave.
RULE 139, 139-B, RULES OF COURT RULE 139 Disbarment or Suspension of Attorneys Section 1. Motion or complaint. Proceedings for the removal or suspension of attorneys may be taken by the Supreme Court on its own motion or upon the complaint under oath of another in writing. The complaint shall set out distinctly, clearly, and concisely the facts complained of, supported by affidavits, if any, of persons having personal knowledge of the facts therein alleged and shall be accompanied with copies of such documents as may substantiate said facts. Section 2. Service or dismissal. If the complaint appears to merit action, a copy thereof shall be served upon the respondent, requiring him to answer the same within ten (10) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Supreme Court that the complaint is not meritorious, the same shall be dismissed. Section 3. Investigation by Solicitor General. Upon the issues raised by the complaint and answer, or upon failure of the respondent to answer, the case shall be referred to the Solicitor General for investigation to determine if there is sufficient ground to proceed with the prosecution of the respondent. In the investigation conducted by the Solicitor General, the respondent shall be given full opportunity to defend himself, to produce witnesses in his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte. Section 4. Report of the Solicitor General. Based upon the evidence adduced at the hearing, if the Solicitor General finds no sufficient ground to proceed against the respondent, he shall submit a report to the Supreme Court containing his findings of fact and conclusion, whereupon the respondent shall be exonerated unless the court orders differently. Section 5. Complaint of the Solicitor General. Answer of respondent . If the Solicitor General finds sufficient ground to proceed against the respondent, he shall file the corresponding complaint, accompanied with all the evidence introduced in his investigation, with the Supreme Court, and the respondent shall be served by the
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clerk of the Supreme Court with a copy of the complaint with direction to answer the same within fifteen (15) days. Section 6. Evidence produced before Solicitor General available. The evidence produced before the Solicitor General in his investigation may be considered by the Supreme Court in the final decision of the case, if the respondent had an opportunity to object and cross-examine. If in the respondent's answer no statement is made as to any intention of introducing additional evidence, the case shall be set down for hearing, upon the filing of such answer or upon the expiration of the time to file the same. Section 7. Commissioner to investigate and recommend. Rules of evidence. Upon receipt of the respondent's answer, wherein a statement is made as to his desire to introduce additional evidence, the case shall be referred to a commissioner who, in the discretion of the court, may be the clerk of the Supreme Court, a judge of first instance, or an attorney-at-law for investigation, report, and recommendation. The Solicitor General or his representative shall appear before the commissioner to conduct the prosecution. The respondent shall be given full opportunity to defend himself, to produce additional evidence in his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice the respondent fails to appear, the investigation shall proceed ex parte. The rules of evidence shall be applicable to proceedings of this nature. Section 8. Report of commissioner and hearing. Upon receipt of the report of the commissioner, copies of which shall be furnished the Solicitor General and the respondent, the case shall be set down for hearing before the court, following which the case shall be considered submitted to the court for its final determination. Section 9. Procedure in Court of Appeals or Courts of First Instance. As far as may be applicable, the procedure above outlined shall likewise govern the filing and investigation of complaints against attorneys in the Court of Appeals or in Courts of First Instance. In case of suspension of the respondent, the judge of the court of first instance or Justice of the Court of Appeals shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which same is based. Section 10. Confidential. Proceedings against attorneys shall be private and confidential, except that the final order of the court shall be made public as in other cases coming before the court. RULE 139-B Disbarment and Discipline of Attorneys Section 1. How Instituted. Proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts. The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service. Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapter who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator.
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A. PROCEEDINGS IN THE INTEGRATED BAR OF THE PHILIPPINES Section 2. National Grievance Investigators. The Board of Governors shall appoint from among IBP members an Investigator or, when special circumstances so warrant, a panel of three (3) investigators to investigate the complaint. All Investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator's appointment and oath shall be transmitted to the Supreme Court. An Investigator may be disqualified by reason of relationship within the fourth degree of consanguinity of affinity to any of the parties of their counsel, pecuniary interest, personal bias, or his having acted as counsel to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification. Any Investigator may also be removed for cause, after due hearing, by the vote of at least six (6) members of the IBP Board of Governors. The decision of the Board of Governors in all cases of disqualification or removal shall be final. Section 3. Duties of the National Grievance Investigator. The National Grievance Investigators shall investigate all complaints against members of the Integrated Bar referred to them by the IBP Board of Governors. Section 4. Chapter assistance to complainant. The proper IBP Chapter may assist the complainant(s) in the preparation and filing of his complaint(s). Section 5. Service or dismissal. If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within fifteen (15) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recommendation. A copy of the resolution of dismissal shall be furnished the complainant and the Supreme Court which may review the case motu propio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complainant. No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same, unless the Supreme Court motu propio or upon recommendation of the IBP Board of Governors, determines that there is no compelling reason to continue with the disbarment or suspension proceedings against the respondent . (Amendment pursuant to Supreme Court Resolution dated May 27, 1993 re Bar Matter 356). Section 6. Verification and service of answer. The answer shall be verified. The original and five (5) legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complainant or his counsel. Section 7. Administrative counsel. The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant of the respondent during the investigation in case of need for such assistance. Section 8. Investigation. Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue
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subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf, and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte. The Investigator shall terminate the investigation within three (3) months from the date of its commencement, unless extended for good cause by the Board of Governors upon prior application. Willful failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall as far as practicable be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within a like period of fifteen (15) days issue a resolution setting forth its findings and recommendations, which shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty. Section 9. Depositions. Depositions may be taken in accordance with the Rules of Court with leave of the investigator(s). Within the Philippines, depositions may be taken before any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths. Depositions may be taken outside the Philippines before diplomatic or consular representative of the Philippine Government or before any person agreed upon by the parties or designated by the Board of Governors. Any suitable member of the Integrated Bar in the place where a deposition shall be taken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition. Section 10. Report of Investigator. Not later than thirty (30) days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcript thereof, and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator's personal notes any relevant and pertinent testimonies. Section 11. Defects. No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings. Section 12. Review and decision by the Board of Governors. a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's Report.
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b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action. c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise. d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court. B. PROCEEDINGS IN THE SUPREME COURT Section 13. Supreme Court Investigation. In proceedings initiated motu propio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor-General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court. Section 14. Report of the Solicitor General of other Court-designated Investigator. Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court shall submit to the Supreme Court a report containing his findings of fact and recommendations for the final action of the Supreme Court. C. COMMON PROVISIONS Section 15. Suspension of attorney by Supreme Court. After receipt of respondent's answer or lapse of the period therefor, the Supreme Court, motu propio, or at the instance of the IBP Board of Governors upon the recommendation of the Investigator, may suspend an attorney from the practice of his profession for any of the causes specified in Rule 138, Section 27, during the pendency of the investigation until such suspension is lifted by the Supreme Court. Section 16. Suspension of attorney by the Court of Appeals or a Regional Trial Court . 1 The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27 2, until further action of the Supreme Court in the case. Section 17. Upon suspension by Court of Appeals or Regional Trial Court, further proceedings in Supreme Court. Upon such suspension, the Court of Appeals or a Regional Trial Court shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the case and may revoke, shorten or extend the suspension, or disbar the attorney as the facts may warrant. Section 18. Confidentiality. Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases.
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Section 19. Expenses. All reasonable and necessary expenses incurred in relation to disciplinary and disbarment proceedings are lawfull charges for which the parties may be taxed as costs. Section 20. Effectivity and Transitory Provision. This Rule shall take effect June 1, 1988 and shall supersede the present Rule 139 entitled "DISBARMENT OR SUSPENSION OF ATTORNEYS". All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed. Footnotes 1 This section and the following Section 17 sepersede Section 9 of Rule 139. 2 The text of Rule 138, Section 27 reads: "SEC. 27. Attorneys removed or suspended by the Supreme Court on what grounds. A member of the bar may be removed or suspended form his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
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LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS CASES (Full Text)

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

As aptly held by this Court in the case of People vs. Villanueva:

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC

LEGAL ETHICS List and Full Text of Cases

University of San Carlos, EH410MC