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CANON 3

1. IN RE LUIS B. TAGORDA

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

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

The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be distinctly understood. Giving application of the law and the Canons of Ethics to the admitted facts, the respondent stands convicted of having solicited cases in defiance of the law and those canons. Accordingly, the only remaining duty of the court is to fix upon the action which should here be taken. The provincial fiscal of Isabela, with whom joined the representative of the Attorney-General in the oral presentation of the case, suggests that the respondent be only reprimanded. We think that our action should go further than this if only to reflect our attitude toward cases of this character of which unfortunately the respondent's is only one. The commission of offenses of this nature would amply justify permanent elimination from the bar. But as mitigating, circumstances working in favor of the respondent there are, first, his intimation that he was unaware of the impropriety of his acts, second, his youth and inexperience at the bar, and, third, his promise not to commit a similar mistake in the future. A modest period of suspension would seem to fit the case of the erring attorney. But it should be distinctly understood that this result is reached in view of the considerations which have influenced the court to the relatively lenient in this particular instance and should, therefore, not be taken as indicating that future convictions of practice of this kind will not be dealt with by disbarment. In view of all the circumstances of this case, the judgment of the court is that the respondent Luis B. Tagorda be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1, 1929, Street, Johns, Romualdez, and Villa-Real, JJ., concur. Johnson, J., reserves his vote. Separate Opinions OSTRAND, J., dissenting: I dissent. Under the circumstances of the case a reprimand would have been sufficient punishment.

the strict ethical rules of the law profession." In further mitigation he alleged that the said advertisement was published only once in the Tribune and that he never had any case at law by reason thereof. Upon that plea the case was submitted to the Court for decision. It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the moneychangers of old defiled the temple of Jehovah. "The most worth 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.) In In re Tagorda, 53 Phil., the respondent attorney was suspended from the practice of law for the period of one month for advertising his services and soliciting work from the public by writing circular letters. That case, however, was more serious than this because there the solicitations were repeatedly made and were more elaborate and insistent. Considering his plea for leniency and his promise not to repeat the misconduct, the Court is of the opinion and so decided that the respondent should be, as he hereby is, reprimanded.

3.

MAURICIO C. ULEP, vs. THE LEGAL CLINIC, INC.

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: The respondent, who is an attorney-at-law, is charged with malpractice for having published an advertisement in the Sunday Tribune of June 13, 1943, which reads as follows: Marriage license promptly secured thru our assistance & the annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything confidential. Legal assistance service 12 Escolta, Manila, Room, 105 Tel. 2-41-60. Appearing in his own behalf, respondent at first denied having published the said advertisement; but subsequently, thru his attorney, he admitted having caused its publication and prayed for "the indulgence and mercy" of the Court, promising "not to repeat such professional misconduct in the future and to abide himself to Annex A SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Please call: 521-0767 LEGAL Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAM DIVORCE. DON PARKINSON 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 7-

2.

THE DIRECTOR OF RELIGIOUS AFFAIRS vs. ESTANISLAO R. BAYOT

OZAETA, J.:

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 Tel. 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 521-7232; 521-7251; 522-2041; 521-0767

The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services). The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications. The IBP would therefore invoke the administrative supervision of this Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field of law practice as aforedescribed. 4 xxx xxx xxx

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. xxx Integrated Bar of the Philippines: 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:

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

Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relation during the marriage within the limits provided by this Code. By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license. If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed. 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

legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill. Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved. It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law. If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services. The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and By-laws must conform to each and every provision of the Code of Professional Responsibility and the Rules of Court. 5 2. xxx Philippine Bar Association: 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

Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certain Atty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39). It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device

by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6 3. Philippine Lawyers' Association:

While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so. In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public from falling prey to those who advertise legal services without being qualified to offer such services. 8 A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name The Legal Clinic, Inc. does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc. Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9 5. Women Lawyer's Association of the Philippines:

The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit: 1. 2. 3. and The Legal Clinic is engaged in the practice of law; Such practice is unauthorized; The advertisements complained of are not only unethical, but also misleading and patently immoral;

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:

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

In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law. At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law.

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. xxx Federacion Internacional de Abogados: xxx xxx

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

1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law does not necessarily make respondent guilty of unlawful practice of law. . . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law accurate or inaccurate moulds our conduct not only when we are acting for ourselves, but when we are serving others. Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law. But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or information, and the legal question is subordinate and incidental to a major non-legal problem. It is largely a matter of degree and of custom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff. 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, wellestablished 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.

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-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

2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11 A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account. Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12 The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13 In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14 When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to determine whether certain acts constitute "practice of law," thus: Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when he: . . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so

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.

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

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

within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22 It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23 Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24 The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27 We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done. Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines. 28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30

Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or statutory authority, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32 Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like 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 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 moneychangers of old defiled the temple of Jehovah. "The most worthy and effective advertisement possible, even for a young lawyer, . . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.). We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. 40 Of course, not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. 41 The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. "Such data must not be misleading and may include only a statement of the lawyer's name and the names of his professional associates; addresses,

telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented." 42 The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43 The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. 44 Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions. The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers: Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14% Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession.

In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly determined, albeit in a different proceeding and forum, since, under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition by respondent is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, 50 after due ascertainment of the factual background and basis for the grant of respondent's corporate charter, in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor General for such action as may be necessary under the circumstances. ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting, directly or indirectly, any activity, operation or transaction proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith.

4.

SAN JOSE HOMEOWNERS ASSN. VS. ATTY. ROMANILLOS

This is a Petition1 for disbarment against Atty. Roberto B. Romanillos for allegedly representing conflicting interests and for using the title "Judge" despite having been found guilty of grave and serious misconduct in Zarate v. Judge Romanillos.2 The facts are as follows: In 1985, respondent represented San Jose Homeowners Association, Inc. (SJHAI) before the Human Settlements Regulation Commission (HSRC) in a case3 against Durano and Corp., Inc. (DCI) for violation of the Subdivision and Condominium Buyers Protection Act (P.D. No. 957). SJHAI alleged that Lot No. 224 was designated as a school site in the subdivision plan that DCI submitted to the Bureau of Lands in 1961 but was sold by DCI to spouses Ramon and Beatriz Durano without disclosing it as a school site. While still the counsel for SJHAI, respondent represented Myrna and Antonio Montealegre in requesting for SJHAIs conformity to construct a school building on Lot No. 224 to be purchased from Durano. When the request was denied, respondent applied for clearance before the Housing and Land Use Regulatory Board (HLURB) in behalf of Montealegre. Petitioners Board of Directors terminated respondents services as counsel and engaged another lawyer to represent the association. Respondent also acted as counsel for Lydia Durano-Rodriguez who substituted for DCI in Civil Case No. 18014 entitled "San Jose Homeowners, Inc. v. Durano and Corp., Inc." filed before the Regional Trial Court of Makati

City, Branch 134. Thus, SJHAI filed a disbarment case against respondent for representing conflicting interests, docketed as Administrative Case No. 4783. In her Report4 dated August 3, 1998, Investigating Commissioner Lydia A. Navarro of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) made the following findings: Respondent failed to observe candor and fairness in dealing with his clients, knowing fully well that the Montealegre case was adverse to the Complainant wherein he had previously been not only an active board member but its corporate secretary having access to all its documents confidential or otherwise and its counsel in handling the implementation of the writ of execution against its developer and owner, Durano and Co. Inc. Moreso, when Respondent acted as counsel for the substituted defendant Durano and Co. Inc., Lydia DuranoRodriguez; the conflict of interest between the latter and the Complainant became so revealing and yet Respondent proceeded to represent the former. For his defense of good faith in doing so; inasmuch as the same wasnt controverted by the Complainant which was his first offense; Respondent must be given the benefit of the doubt to rectify his error subject to the condition that should he commit the same in the future; severe penalty will be imposed upon him.5 The Investigating Commissioner recommended dismissal of the complaint with the admonition that respondent should observe extra care and diligence in the practice of his profession to uphold its dignity and integrity beyond reproach. The IBP Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner, which we noted in a resolution dated March 8, 1999. Notwithstanding the admonition, respondent continued representing Lydia Durano-Rodriguez before the Court of Appeals6 and this Court7 and even moved for the execution of the decision. Thus, a second disbarment case was filed against respondent for violation of the March 8, 1999 Resolution in A.C. No. 4783 and for his alleged deceitful conduct in using the title "Judge" although he was found guilty of grave and serious misconduct. Respondent used the title "Judge" in his office letterhead, correspondences and billboards which was erected in several areas within the San Jose Subdivision sometime in October 2001. In his Comment and Explanation,8 respondent claimed that he continued to represent Lydia Durano-Rodriguez against petitioner despite the March 8, 1999 Resolution because it was still pending when the second disbarment case was filed. He maintained that the instant petition is a rehash of the first disbarment case from which he was exonerated. Concerning the title "Judge", respondent stated that since the filing of the instant petition he had ceased to attach the title to his name. On July 7, 2003, the matter was referred to the IBP for investigation, report and recommendation.9 Investigating Commissioner Leland R. Villadolid, Jr. reported that respondent did not violate the admonition because it referred to future cases only and not to cases subject of A.C. No. 4783. Besides, petitioner never questioned the propriety of respondents continued representation of Lydia Durano-Rodriguez on appeal until the case was terminated. The Investigating Commissioner, however, believed that respondent was deceitful when he used the title "Judge", thus creating a false impression that he was an incumbent.

The Investigating Commissioner recommended thus: In view of the foregoing considerations, this Commissioner respectfully recommends the following penalty range to be deliberated upon by the Board for imposition on Respondent: minimum penalty of reprimand to a maximum penalty of four (4) months suspension. It is further recommended that in addition to the penalty to be imposed, a stern warning be given to Respondent in that should he violate his undertaking/promise not to handle any case in the future where the Complainant would be the adverse party and/or should he again use the title of "Judge" which would create an impression that he is still connected to the judiciary, a more severe penalty shall be imposed on him by the Commission. RESPECTFULLY SUBMITTED. The IBP Board of Governors approved with modification the report and recommendation of the Investigating Commissioner, thus: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A", and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents violation of Rule 1.01 and Rule 3.01 of the Code of Professional Responsibility, Atty. Roberto Romanillos is hereby SUSPENDED from the practice of law for six (6) months with a WARNING that should he violate his undertaking/promise a more severe penalty shall be imposed against him. Undoubtedly, respondent represented the inconsistent interests of SJHAI, DCI as substituted by Lydia DuranoRodriguez and the Montealegres. Respondent was admonished yet he continued to represent Durano-Rodriguez against SJHAI. It is inconsequential that petitioner never questioned the propriety of respondents continued representation of Lydia Durano-Rodriguez. The lack of opposition does not mean tacit consent. As long as the lawyer represents inconsistent interests of two (2) or more opposing clients, he is guilty of violating his oath. Rule 15.03 of the Code of Professional Responsibility specifically mandates that a lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure. Incidentally, it is also misleading for respondent to insist that he was exonerated in A.C. No. 4783. We agree with the IBP that respondents continued use of the title "Judge" violated Rules 1.01 and 3.01 of the Code of Professional Responsibility prohibiting a lawyer from engaging in deceitful conduct and from using any misleading statement or claim regarding qualifications or legal services. The quasi-judicial notice he posted in the billboards referring to himself as a judge is deceiving. It was a clear attempt to mislead the public into believing that the order was issued in his capacity as a judge when he was dishonorably stripped of the privilege. Respondent did not honorably retire from the judiciary. He resigned from being a judge during the pendency of Zarate v. Judge Romanillos, where he was eventually found guilty of grave and serious misconduct and would have been dismissed from the service had he not resigned. In that case, respondent was found guilty of illegal solicitation and receipt of P10,000.00 from a party litigant. We ruled thus: Considering the foregoing, respondent Judge Roberto B. Romanillos is hereby found guilty of grave and serious misconduct affecting his integrity and honesty. He deserves the supreme penalty of dismissal. However, respondent, in an obvious attempt to escape punishment for his misdeeds, tendered his resignation during the pendency of this case. Consequently, we are now precluded from dismissing respondent from the service. Nevertheless, the ruling in People v. Valenzuela (135 SCRA 712 [1985]), wherein the respondent judge likewise

resigned before the case could be resolved, finds application in this case. Therein it was held that the rule that the resignation or retirement of a respondent judge in an administrative case renders the case moot and academic, is not a hard and fast rule. ACCORDINGLY, in view of our aforestated finding that respondent Judge Romanillos is guilty of grave and serious misconduct which would have warranted his dismissal from the service had he not resigned during the pendency of this case, and it appearing that respondent has yet to apply for his retirement benefits and other privileges if any; the Court, consistent with the penalties imposed in Valenzuela (supra.), hereby orders the FORFEITURE of all leave and retirement benefits and privileges to which herein respondent Judge Romanillos may be entitled WITH PREJUDICE to reinstatement and/or reemployment in any branch or instrumentality of government, including government-owned or controlled agencies or corporations. SO ORDERED.10

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. WHEREFORE, respondent Atty. Roberto B. Romanillos is DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be entered in 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.

5. The penalty imposed upon him in said case included forfeiture of all leave and retirement benefits and privileges to which he may be entitled with prejudice to reinstatement and/or reemployment in any branch or instrumentality of government, including government-owned or controlled agencies or corporations. Certainly, the use of the title Judge is one of such privileges. We have previously declared that the use of titles such as "Justice" is reserved to incumbent and retired members of the Supreme Court, the Court of Appeals and the Sandiganbayan and may not be used by any other official of the Republic, including those given the rank of "Justice".11 By analogy, the title "Judge" should be reserved only to judges, incumbent and retired, and not to those who were dishonorably discharged from the service. As correctly pointed out by the Investigating Commissioner, the right to retain and use said title applies only to the aforementioned members of the bench and no other, and certainly not to those who were removed or dismissed from the judiciary, such as respondent. Membership in the legal profession is a special privilege burdened with conditions.12 It is bestowed upon individuals who are not only learned in law, but also known to possess good moral character.13 Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in order to promote the publics faith in the legal profession.14 To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be overemphasized. Considering that, "of all classes and professions, [lawyers are] most sacredly bound to uphold the law," it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession.15 Disbarment is the most severe form of disciplinary sanction. We are mindful that the power to disbar must always be exercised with great caution, for only the most imperative reasons,16 and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and as a member of the bar.17 This is not respondents first infraction as an officer of the court and a member of the legal profession. He was stripped of his retirement benefits and other privileges in Zarate v. Judge Romanillos.18 In A.C. No. 4783, he got off lightly with just an admonition. Considering his previous infractions, respondent should have adhered to the tenets of his profession with extra fervor and vigilance. He did not. On the contrary, he manifested undue disrespect to our mandate and exhibited a propensity to violate the laws. He is thus unfit to discharge the duties of his office and unworthy of the trust and confidence reposed on him as an officer of the court. His disbarment is consequently warranted. Section 27, Rule 138 of the Revised Rules of Court provides:

IN RE SYCIP

Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who died on February 14, 1976, praying that they be allowed to continue using, in the names of their firms, the names of partners who had passed away. In the Court's Resolution of September 2, 1976, both Petitions were ordered consolidated. Petitioners base their petitions on the following arguments: 1. Under the law, a partnership is not prohibited from continuing its business under a firm name which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly sanctions the practice when it provides in the last paragraph that: t.hqw The use by the person or partnership continuing the business of the partnership name, or the name of a deceased partner as part thereof, shall not of itself make the individual property of the deceased partner liable for any debts contracted by such person or partnership. 1 2. In regulating other professions, such as accountancy and engineering, the legislature has authorized the adoption of firm names without any restriction as to the use, in such firm name, of the name of a deceased partner; 2 the legislative authorization given to those engaged in the practice of accountancy a profession requiring the same degree of trust and confidence in respect of clients as that implicit in the relationship of attorney and client to acquire and use a trade name, strongly indicates that there is no fundamental policy that is offended by the continued use by a firm of professionals of a firm name which includes the name of a deceased partner, at least where such firm name has acquired the characteristics of a "trade name." 3 3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a deceased partner in the firm name of a law partnership because Canon 33 of the Canons of Professional Ethics adopted by the American Bar Association declares that: t.hqw ... The continued use of the name of a deceased or former partner when permissible by local custom, is not unethical but care should be taken that no imposition or deception is practiced through this use. ... 4 4. There is no possibility of imposition or deception because the deaths of their respective deceased partners were well-publicized in all newspapers of general circulation for several days; the stationeries now being used by them carry new letterheads indicating the years when their respective deceased partners were connected with the firm; petitioners will notify all leading national and international law directories of the fact of their respective deceased partners' deaths. 5

5. No local custom prohibits the continued use of a deceased partner's name in a professional firm's name; 6 there is no custom or usage in the Philippines, or at least in the Greater Manila Area, which recognizes that the name of a law firm necessarily Identifies the individual members of the firm. 7 6. The continued use of a deceased partner's name in the firm name of law partnerships has been consistently allowed by U.S. Courts and is an accepted practice in the legal profession of most countries in the world. 8 The question involved in these Petitions first came under consideration by this Court in 1953 when a law firm in Cebu (the Deen case) continued its practice of including in its firm name that of a deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to desist from including in their firm designation the name of C. D. Johnston, who has long been dead." The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce Enrile moved to intervene as amicus curiae. Before acting thereon, the Court, in a Resolution of April 15, 1957, stated that it "would like to be informed why the name of Perkins is still being used although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm of Perkins and Ponce Enrile, raising substantially the same arguments as those now being raised by petitioners, prayed that the continued use of the firm name "Perkins & Ponce Enrile" be held proper. On June 16, 1958, this Court resolved: t.hqw After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and Associates for their continued use of the name of the deceased E. G. Perkins, the Court found no reason to depart from the policy it adopted in June 1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City to desist from including in their firm designation, the name of C. D. Johnston, deceased. The Court believes that, in view of the personal and confidential nature of the relations between attorney and client, and the high standards demanded in the canons of professional ethics, no practice should be allowed which even in a remote degree could give rise to the possibility of deception. Said attorneys are accordingly advised to drop the name "PERKINS" from their firm name. Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court. The Court finds no sufficient reason to depart from the rulings thus laid down. A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De Leon, Mabanta and Reyes" are partnerships, the use in their partnership names of the names of deceased partners will run counter to Article 1815 of the Civil Code which provides: t.hqw Art. 1815. Every partnership shall operate under a firm name, which may or may not include the name of one or more of the partners. Those who, not being members of the partnership, include their names in the firm name, shall be subject to the liability, of a partner. It is clearly tacit in the above provision that names in a firm name of a partnership must either be those of living partners and. in the case of non-partners, should be living persons who can be subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including his name in the firm name under pain of assuming the liability of a partner. The heirs of a deceased partner in a law firm cannot be held liable as the old members to the creditors of a firm particularly where they are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics "prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of a percentage, either gross or net, of the fees received from the future business of the deceased lawyer's clients,

both because the recipients of such division are not lawyers and because such payments will not represent service or responsibility on the part of the recipient. " Accordingly, neither the widow nor the heirs can be held liable for transactions entered into after the death of their lawyer-predecessor. There being no benefits accruing, there ran be no corresponding liability. Prescinding the law, there could be practical objections to allowing the use by law firms of the names of deceased partners. The public relations value of the use of an old firm name can tend to create undue advantages and disadvantages in the practice of the profession. An able lawyer without connections will have to make a name for himself starting from scratch. Another able lawyer, who can join an old firm, can initially ride on that old firm's reputation established by deceased partners. B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and Winding Up." The Article primarily deals with the exemption from liability in cases of a dissolved partnership, of the individual property of the deceased partner for debts contracted by the person or partnership which continues the business using the partnership name or the name of the deceased partner as part thereof. What the law contemplates therein is a hold-over situation preparatory to formal reorganization. Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather than of a professional partnership, with no saleable good will but whose reputation depends on the personal qualifications of its individual members. Thus, it has been held that a saleable goodwill can exist only in a commercial partnership and cannot arise in a professional partnership consisting of lawyers. 9t.hqw As a general rule, upon the dissolution of a commercial partnership the succeeding partners or parties have the right to carry on the business under the old name, in the absence of a stipulation forbidding it, (s)ince the name of a commercial partnership is a partnership asset inseparable from the good will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied) On the other hand, t.hqw ... a professional partnership the reputation of which depends or; the individual skill of the members, such as partnerships of attorneys or physicians, has no good win to be distributed as a firm asset on its dissolution, however intrinsically valuable such skill and reputation may be, especially where there is no provision in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis supplied) C. A partnership for the practice of law cannot be likened to partnerships formed by other professionals or for business. For one thing, the law on accountancy specifically allows the use of a trade name in connection with the practice of accountancy. 10 t.hqw A partnership for the practice of law is not a legal entity. It is a mere relationship or association for a particular purpose. ... It is not a partnership formed for the purpose of carrying on trade or business or of holding property." 11 Thus, it has been stated that "the use of a nom de plume, assumed or trade name in law practice is improper. 12 The usual reason given for different standards of conduct being applicable to the practice of law from those pertaining to business is that the law is a profession. Dean Pound, in his recently published contribution to the Survey of the Legal Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a profession as "a group of men pursuing a learned art as a common calling in the spirit of public service, no less a public service because it may incidentally be a means of livelihood." xxx xxx xxx

Primary characteristics which distinguish the legal profession from business are: 1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money. 2. A relation as an "officer of court" to the administration of justice involving thorough sincerity, integrity, and reliability. 3. A relation to clients in the highest degree fiduciary.

The practice sought to be proscribed has the sanction of custom and offends no statutory provision or legislative policy. Canon 33 of the Canons of Professional Ethics of both the American Bar Association and the New York State Bar Association provides in part as follows: "The continued use of the name of a deceased or former partner, when permissible by local custom is not unethical, but care should be taken that no imposition or deception is practiced through this use." There is no question as to local custom. Many firms in the city use the names of deceased members with the approval of other attorneys, bar associations and the courts. The Appellate Division of the First Department has considered the matter and reached The conclusion that such practice should not be prohibited. (Emphasis supplied) xxx xxx xxx

4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. 13 "The right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. 14 It is limited to persons of good moral character with special qualifications duly ascertained and certified. 15 The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust." 16 D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar Association" in support of their petitions. It is true that Canon 33 does not consider as unethical the continued use of the name of a deceased or former partner in the firm name of a law partnership when such a practice is permissible by local custom but the Canon warns that care should be taken that no imposition or deception is practiced through this use. It must be conceded that in the Philippines, no local custom permits or allows the continued use of a deceased or former partner's name in the firm names of law partnerships. Firm names, under our custom, Identify the more active and/or more senior members or partners of the law firm. A glimpse at the history of the firms of petitioners and of other law firms in this country would show how their firm names have evolved and changed from time to time as the composition of the partnership changed. t.hqw The continued use of a firm name after the death of one or more of the partners designated by it is proper only where sustained by local custom and not where by custom this purports to Identify the active members. ... There would seem to be a question, under the working of the Canon, as to the propriety of adding the name of a new partner and at the same time retaining that of a deceased partner who was never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp. 207208) (Emphasis supplied). The possibility of deception upon the public, real or consequential, where the name of a deceased partner continues to be used cannot be ruled out. A person in search of legal counsel might be guided by the familiar ring of a distinguished name appearing in a firm title. E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased partner's name in the firm name of law partnerships. But that is so because it is sanctioned by custom. In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained the use of the firm name Alexander & Green even if none of the present ten partners of the firm bears either name because the practice was sanctioned by custom and did not offend any statutory provision or legislative policy and was adopted by agreement of the parties. The Court stated therein: t.hqw

Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use of the firm name herein is also sustainable by reason of agreement between the partners. 18 Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. 19 Courts take no judicial notice of custom. A custom must be proved as a fact, according to the rules of evidence. 20 A local custom as a source of right cannot be considered by a court of justice unless such custom is properly established by competent evidence like any other fact. 21 We find such proof of the existence of a local custom, and of the elements requisite to constitute the same, wanting herein. Merely because something is done as a matter of practice does not mean that Courts can rely on the same for purposes of adjudication as a juridical custom. Juridical custom must be differentiated from social custom. The former can supplement statutory law or be applied in the absence of such statute. Not so with the latter. Moreover, judicial decisions applying or interpreting the laws form part of the legal system. 22 When the Supreme Court in the Deen and Perkins cases issued its Resolutions directing lawyers to desist from including the names of deceased partners in their firm designation, it laid down a legal rule against which no custom or practice to the contrary, even if proven, can prevail. This is not to speak of our civil law which clearly ordains that a partnership is dissolved by the death of any partner. 23 Custom which are contrary to law, public order or public policy shall not be countenanced. 24 The practice of law is intimately and peculiarly related to the administration of justice and should not be considered like an ordinary "money-making trade." t.hqw ... It is of the essence of a profession that it is practiced in a spirit of public service. A trade ... aims primarily at personal gain; a profession at the exercise of powers beneficial to mankind. If, as in the era of wide free opportunity, we think of free competitive self assertion as the highest good, lawyer and grocer and farmer may seem to be freely competing with their fellows in their calling in order each to acquire as much of the world's good as he may within the allowed him by law. But the member of a profession does not regard himself as in competition with his professional brethren. He is not bartering his services as is the artisan nor exchanging the products of his skill and learning as the farmer sells wheat or corn. There should be no such thing as a lawyers' or physicians' strike. The best service of the professional man is often rendered for no equivalent or for a trifling equivalent and it is his pride to do what he does in a way worthy of his profession even if done with no expectation of reward, This spirit of public service in which the profession of law is and ought to be exercised is a prerequisite of sound administration of justice according to law. The other two elements of a profession, namely, organization and pursuit of a learned art have their justification in that they secure and maintain that spirit. In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow to legal and ethical impediment. ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names "SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be included in the listing of individuals who have been partners in their firms indicating the years during which they served as such.

6.

DACANAY VS. BAKER MCKENZIE

position of administrator has at all impaired his efficiency as messenger; nor has it been shown that he did not observe regular office hours. Indubitably, therefore, Rada has violated the civil service rule prohibiting government employees from engaging directly in a private business, vocation or profession or being connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of the Department. But, indubitably, also, his private business connection has not resulted in any prejudice to the Government service. Thus, his violation of the rule the lack of prior permission is a technical one, and he should be meted no more than the minimum imposable penalty, which is reprimand. The duties of messenger Rada are generally ministerial which do not require that his entire day of 24 hours be at the disposal of the Government. Such being his situation, it would be to stifle his willingness to apply himself to a productive endeavor to augment his income, and to award a premium for slothfulness if he were to be banned from engaging in or being connected with a private undertaking outside of office hours and without foreseeable detriment to the Government service. His connection with Avesco Marketing Corporation need not be terminated, but he must secure a written permission from the Executive Judge of the Court of First Instance of Camarines Norte, who is hereby authorized to grant or revoke such permission, under such terms and conditions as will safeguard the best interests of the service, in general, and the court, in particular. ACCORDINGLY, the respondent Moises R. Rada is adjudged guilty of a technical violation of Section 12 of Civil Service Rule XVIII, for which he is hereby reprimanded. He may however apply, if he so desires, for permission to resume his business connection with the corporation, in the manner above indicated.

Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980 verified complaint, sought to enjoin Juan G. Collas, Jr. and nine other lawyers from practising law under the name of Baker & McKenzie, a law firm organized in Illinois. In a letter dated November 16, 1979 respondent Vicente A. Torres, using the letterhead of Baker & McKenzie, which contains the names of the ten lawyers, asked Rosie Clurman for the release of 87 shares of Cathay Products International, Inc. to H.E. Gabriel, a client. Attorney Dacanay, in his reply dated December 7, 1979, denied any liability of Clurman to Gabriel. He requested that he be informed whether the lawyer of Gabriel is Baker & McKenzie "and if not, what is your purpose in using the letterhead of another law office." Not having received any reply, he filed the instant complaint. We hold that Baker & McKenzie, being an alien law firm, cannot practice law in the Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by the respondents in their memorandum, Baker & McKenzie is a professional partnership organized in 1949 in Chicago, Illinois with members and associates in 30 cities around the world. Respondents, aside from being members of the Philippine bar, practising under the firm name of Guerrero & Torres, are members or associates of Baker & Mckenzie. As pointed out by the Solicitor General, respondents' use of the firm name Baker & McKenzie constitutes a representation that being associated with the firm they could "render legal services of the highest quality to multinational business enterprises and others engaged in foreign trade and investment" (p. 3, respondents' memo). This is unethical because Baker & McKenzie is not authorized to practise law here. (See Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115.) WHEREFORE, the respondents are enjoined from practising law under the firm name Baker & McKenzie.

8.

OMICO MINING AND INDUSTRIAL CORP. VS. VALLEJO

7.

RAMOS V. RADA

Original petition for certiorari and prohibition with writ of preliminary injunction to set aside the orders and judgment rendered by respondent Judge in Civil Case No. N-1963 (Alfredo Catolico v. Omico Mining and Industrial Corporation, et al.) as having been made without or in excess of jurisdiction, or with grave abuse of discretion. FACTS On June 1, 1973, Alfredo Catolico (herein private respondent), then a judge of the Court of First Instance of Cavite, filed with said court a complaint, docketed as Civil Case No. N-1963 and assigned to Branch II presided by respondent Judge Amador T. Vallejos, against Omico Mining and Industrial Corporation and Frederick G. Webber, the latter in his personal capacity and as President and Chairman of the Board of Directors of said corporation, alleging two (2) causes of action. The first, for the return of ten (10) certificates of stock of the corporation borrowed from him by the defendants, and the second, for the payment of his services as legal counsel for the corporation. Under the first cause of action, plaintiff Catolico alleged among others that he is a resident of Cavite City where he is a judge of the Court of First Instance and stockholder of the defendant Omico Mining and Industrial Corporation holding thirty (30) certificates of stock duly paid up bearing Nos. 13437 to 13466, the same having been issued to him way back in August, 1969; that defendant corporation, through its co-defendant Frederick G. Webber, pleaded with him that ten (10) certificates of stock, Nos. 13437 to 13446, be allowed to remain with them under their responsibility, jointly and severally, for the specific purpose of using said certificates as part collateral for a loan in the amount of P10,000,000.00, the defendants were then negotiating with the Development Bank of the Philippines, and that both defendants, jointly and severally, promised to return said certificates of stock upon the approval or disapproval of the loan application; that when disapproval of said loan application appeared imminent, the defendants again pleaded with him for the retention of the same ten (10) certificates of stock because they were negotiating for the purchase of the Bunning and Company of Tuguegarao for P2,000,000,00, and that they needed said certificates as part collateral for the transaction; that when those two transactions failed, he demanded several times of the defendants for the return to him of the ten (10) certificates aforementioned so that he could use them, but said demands were

CASTRO, J.: Moises R. Rada a messenger in the Court of First Instance of Camarines Norte, Branch II, is charged with a violation of Section 12 of Civil Service Rule XVIII, which provides as follows: Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government:.... From the respondent Rada's letters of explanation and their annexes, dated December 16, 1973 and June 27, 1974, respectively, and the letter and its annexes, dated August 12, 1974, filed by the complainant Rene P. Ramos, by way of rejoinder to Rada's explanation, undisputed fundamental facts emerge that justify us in dispensing with a full-blown investigation of this administrative case. The respondent Rada receives a monthly salary of P267.75. On December 15, 1972 he was extended an appointment by the Avesco Marketing Corporation, thru its president, Jimmy Tang, as representative to manage and supervise real properties situated in Camarines Norte which were foreclosed by the corporation. Rada accepted the appointment and discharged his duties as administrator. The administrative complaint against Rada was filed with the Department of Justice on October 3, 1973. He requested permission to accept the appointment on October 27, 1973. It is not indicated that his acceptance and discharge of the duties of the

of no avail; that in view of the failure of the defendants to comply with his demands, he is forced to file the complaint seeking the return to him of said ten (10) certificates of stock. Under the second cause of action, plaintiff after reproducing the pertinent averments in the first cause of action, among which is the averment that he is a judge of the Court of First Instance of Cavite, further alleged that on October 13, 1968, both defendants entered into a contract of personal and professional services with him under the terms of which he was to head defendant corporation's legal department with the condition that he should render such services only after his office hours, "even into the dead wee hours of the night and wherever such services would not run in conflict with his duties as Judge"; that in consideration of such services, the defendants undertook to pay him a yearly salary of P35,000.00 from the date of the contract, but where a case shall have been settled in and out of court, and defendants shall have won or saved money because of such settlement, he shall be paid by way of commission ten percent (10%) of the amount involved in the litigation and/or settlement; that, pursuant to said contract, he has rendered legal services as head of the legal department of defendant Omico and has attended to the personal consultation of defendant Frederick G. Webber until the filing of the complaint, when, by reason thereof, their official relations were severed; that the defendants should render the corresponding accounting of his unpaid commission and salaries, taking into consideration the partial payments and advances given to him as salary; that a more detailed specification of the services rendered by him in favor of the defendants were made in a letter to the defendants, mailed on May 28, 1973 from his official residence in Cavite City; that the defendants refused and failed to render such accounting and to pay his emoluments, in spite of his repeated demands to that effect. Plaintiff, therefore, prayed that, on the first cause of action, defendants be ordered to return to him the ten (10) certificates of stock, or, in case the return thereof cannot be done, to issue in his favor the same number and amount of certificates of stock as replacement or to pay him the par value thereof; and, on the second cause of action, defendants be ordered to render the corresponding accounting of the amounts due him in accordance with the averments in the complaint, and to pay him the balance as reflected in the accounting as approved by the court; to pay him moral, exemplary, punitive and afflictive damages, in such amounts as assessed by the court; to pay him attorney's fees and costs; and to grant him such other reliefs available in the premises. 1 Served with the corresponding summons and copies of the complaint, the petitioners, as defendants therein, on June 10, 1973 filed a motion to dismiss the complaint on two grounds: namely (1) improper venue, in that the case was filed in Cavite where plaintiff is not a resident, the truth being that he is a resident of Quezon City where he has his permanent family home; and, as to the second cause of action, the contract of personal and professional services between plaintiff and defendants was entered into in the City of Manila, and, therefore, the case should have been filed in Manila in accordance with Section I of Rule 4 of the Revised Rules of Court; and (2) lack of cause of action, in that with regard to the stock certificates the same are in the name of Vicente Resonda; and, with respect to the contract of personal and professional services wherein it was agreed that the plaintiff shall head the legal department of defendant Omico Mining & Industrial Corporation, the same is illegal, void and unenforceable, plaintiff being a judge of the Court of First Instance who is prohibited by Section 35 of Rule 138 of the Revised Rules of Court from engaging in private practice as a member of the Bar. The motion to dismiss contains the following notice of hearing: t.hqw The Clerk of Court Court of First Instance of Cavite City Branch II Greetings: Please include the foregoing motion in the calendar of the Honorable Court on Saturday, June 16, 1973, and have the same submitted for resolution without further arguments on the part of the defendants. (Sgd.) JOSE F. PEREZ COPY FURNISHED: (By registered Mail) Atty. Jaime B. Lumasag, Counsel for the Plaintiff,

5-C Banawe, Quezon City Attached to the motion is Registry Receipt No. 45297 issued by Manila Central Post Office on June 9, 1973. 2 On June 16, 1973, the date set for the hearing of the motion to dismiss, neither the parties nor their respective counsels appeared in court. But the court, noting that there was no clear showing in the record that notice of hearing of said motion had been served upon counsel for the plaintiff, issued on June 18, 1973 an Order postponing consideration of the motion "until counsel for the defendants shall have shown to the satisfaction of the Court that a copy of his motion to dismiss has been furnished counsel for the plaintiff." The Order adds that "in said event, the Clerk of Court shall calendar anew the hearing of the motion to dismiss furnishing a copy of the date of the bearing to counsels for the plaintiff and for the defendants." 3 Copies of said Order were sent to the respective counsels of the parties on June 10, 1973 by registered mail. 4 While the motion to dismiss was pending resolution by the court because defendants had not yet presented to the court the required proof of service, plaintiff, on January 11, 1974, filed a petition to declare the defendants in default and to allow him to present his evidence ex parte. In said petition, plaintiff alleged, in substance, that defendants had been served with summons and copies of the complaint on June 8, 1973; that as of January 11, 1974, or after a lapse of seven (7) months from the service of summons, defendants had not filed their answer to the complaint; that the defendants had filed a motion to dismiss the complaint on June 10, 1973, the hearing of which had been set to June 16, 1973 but the notice of said hearing was addressed to the Clerk of Court, not to Atty. Jaime B. Lumasag, counsel for plaintiff; that the Revised Rules of Court provides that petitions and motions should be sent to opposing parties who should be notified of the date of the hearing thereof; that the notice of hearing in defendants' motion to dismiss is fatally defective, it being addressed to the Clerk of Court; and that because of that defect, defendants' motion to dismiss is a "useless piece of paper", citing Philippine Advertising Counselors, Inc. v. Hon. Pedro A. Revilla, G.R. No. L-31869, promulgated on August 8, 1973. 5 By Order of January 15, 1974, the court granted the petition 6 and, consequently, it received ex parte the evidence of the plaintiff and rendered judgment thereon on January 29, 1974, the dispositive portion of which reads: t.hqw WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants directing the latter: 1. To return to the plaintiff ten (10) certificates of stock corresponding to 100,000 shares of the Omico Mining and Industrial Corporation in the name of Vicente Resonda bearing Nos. 13437 up to and including 13446 or in lieu thereof, to deliver to said plaintiff new certificates of the above-named corporation of equivalent value; 2. To pay to the plaintiff the total amount of One Million One Hundred Eighty-six Thousand Four Hundred Thirty-five Pesos and Eleven centavos (P1,186,435.11) at the legal rate of interest until said amount is fully paid; 3. 4. To pay to the plaintiff by way of attorney's fees the amount of Ten Thousand Pesos (P10,000.00); To pay the costs." 7

On March 5, 1974, defendants filed a motion for reconsideration, advancing the arguments (1) that the judgment is contrary to law and the liberal interpretation of the Revised Rules of Court, in that they have complied with the provisions of Section 10 of Rule 13, Revised Rules of Court, by stating in the motion to dismiss that a copy thereof was furnished by registered mail to Atty. Jaime B. Lumasag, counsel for the plaintiff, and attaching thereto the registry receipt therefor issued by the Manila Central Post Office; that the purpose of the notice has been served because as per certification of the post office of Quezon City, said Atty. Jaime B. Lumasag received the copy of the Motion to Dismiss before June 16, 1973, the date set for the hearing of the motion; and that, with respect to the return card, they have not received the same, hence, they could not comply with the

submission thereof; (2) that the circumstances obtaining in the case do not warrant the default order which finally paved the way for the rendering of judgment in favor of the plaintiff, because counsel for the plaintiff had received a copy of the motion to dismiss one day before the hearing thereof; that said motion should have been acted upon, considering that it contains contentious issues which when resolved would show the complaint to be "nothing but empty claims"; and that the ruling in Philippine Advertising Counselors, Inc. cannot apply, because the facts therein are at variance with those of the present case; and (3) that the defendants have a valid defense and strong evidence to rebut and/or controvert the claims of the plaintiff as shown by the affidavits of Jose F. Perez and Hilarion P. Dugenio, legal counsel and corporate secretary, respectively, of Omico Mining and Industrial Corporation. The motion contains a notice to counsel for plaintiff that the hearing thereof has been set for March 15, 1974. 8 On March 15,1974, plaintiff Catolico, on his own behalf, filed a motion to postpone hearing of the motion for reconsideration to April 29, 1974, to enable him to prepare an intelligible opposition thereto. The motion does not contain a notice of hearing. It merely states at the foot thereof that a copy of said motion was furnished Pio R. Marcos and Guillermo Bandonil, counsel for defendants, without stating how delivery was effected. 9 But notwithstanding absence of notice of hearing, the court, considering the absence, of objection thereto on the part of the defendants, granted the motion for postponement, with the condition that the defendants be furnished with a copy of the opposition; that defendants may file their reply to the opposition within fifteen (15) days from receipt of a copy thereof; and that thereafter the matter be deemed submitted for resolution. 10 On May 31, 1974, while defendants' motion for reconsideration was still pending before the court because the defendants had not filed yet their reply to the opposition as they had not received a copy thereof, 11 plaintiff Catolico filed a motion for immediate execution of judgment, alleging, among other things, that said judgment had already become final and executory because the defendants failed to have the order of default lifted; that the motion for reconsideration was filed out of time; that there was a "manifest attempt on the part of the defendants to delay the proceedings to afford them an opportunity to have all their assets and shares dissipated by continuous sale of the same to the prejudice" not only of respondent Catolico but also of "some forty to fifty creditors who filed complaints against the defendants for estafa and civil suits for collection amounting to hundreds of thousands of pesos"; that some 80% of defendants' assets and properties had already been sold at fantastically low prices to defraud creditors who had been deceitfully assured by the management that they are well protected; that the judgment might become ineffective "due to the notoriously deceptive movements" (sic) to which the defendants "daily and continuously expose themselves"; and that immediate execution of the judgment is the only protection that can be rendered to plaintiff under the premises. 12 On June 18, 1974, the Court issued simultaneously two (2) Orders, one denying defendants' motion for reconsideration, 13 and the other directing the issuance of a writ of execution of its decision of January 29, 1974. In the latter Order, the court appointed the City Sheriff of Manila, herein respondent Leonardo Alcid, to execute said writ of execution. 14 On June 19, 1974, defendants filed their notice of appeal to this Court, an appeal bond and a record on appeal. The record on appeal was approved on August 27, 1974 only because of the absence of the respondent Judge from his station, he being then a participant in the seminar of Judges of Court of First Instance in the Development Academy of the Philippines at Tagaytay City. 15 On the same date, June 19, 1974, in the afternoon, respondent Sheriff of Manila, through his Senior Legal Assistant and Acting Executive Sheriff Dominador Q. Cacpal served a notice of garnishment to the defendants, together with a writ of execution issued by the respondent Judge. On July 22, Pio R. Marcos, as President and Chairman of the Board of Directors of defendant Omico Mining and Industrial Corporation, wrote a letter to respondent Sheriff asking that the defendants be given a little chance to exhaust the legal remedies available to hold in abeyance the execution and garnishment. Among the reasons presented by Marcos are that defendants were not given a chance to have their day in court in the motion for immediate execution of judgment and that they have already appealed from the lower court's decision and order of immediate execution. 16

Because of the impending execution of the judgment by default which they believe to be illegal, defendants, on July 25, 1974, filed with this Court the instant petition praying, among other things, that respondent Judge be restrained from commanding the City Sheriff of Manila, or his duly authorized representative, to execute the decision of January 29, 1974. The petition assails mainly the Order of respondent Judge, declaring the defendants in default, the consequent reception of the evidence of the plaintiff ex parte and the judgment by default rendered thereon, as having been made without or in excess of jurisdiction, or with grave abuse of discretion because said respondent Judge failed to resolve first the defendants' motion to dismiss. In a resolution dated July 24, 1974, We required, without giving due course to the petition, respondents to comment on said petition within ten (10) days from notice thereof, and, as prayed for, issued a temporary restraining order. Respondent Judge and private respondent Catolico filed separate comments. Per resolution dated August 20, 1974, We resolved to consider their comments as their Answer to the petition. In his answer, respondent Judge justifies his failure to act on the aforesaid motion to dismiss the complaint in this wise: t.hqw In insisting in their petition that it was obligatory for this respondent to grant or deny said motion to dismiss, counsels who filed this petition seem to be feigning ignorance as to reasons why this respondent chose to ignore their motion to dismiss and considered it a mere scrap of paper. It is humbly submitted that said reasons have been amply set forth and discussed in the Decision rendered in Civil Case No. N-1963 (Annex F to the petition) in accordance with the decision of this Honorable Tribunal in the case of Philippine Advertising Counselors, Inc., versus Hon. Pedro Revilla, et al., G.R. No. L-31869), to this effect: t.hqw 'Finally, Section 4, Rule 15 of the Rules of Court provides that notice of a motion shall be served by the applicant to all parties concerned, at least three days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it, and Section 5 of the same rule requires the motion to be directed to the parties concerned and to state the time and place for the hearing of the motion. A motion which fails to comply with these requirements is nothing but a useless piece of paper ...' (Emphasis supplied). Counsels who filed the instant petition know more than anybody else that their motion to dismiss did not comply with the standards required in the decision above quoted for it was addressed to the Clerk of Court and not to the party concerned. As such, said motion to dismiss was but 'a useless piece of paper' without any legal standing, and, therefore, could neither be granted nor denied, by this respondent .... Subsequently, or on September 6, 1974, private respondent filed a motion to dismiss said petition on the ground that the remedy of certiorari and prohibition is no longer available to the herein petitioners, inasmuch as they had already perfected their appeal. 17 Petitioners opposed the motion to dismiss on the ground that their appeal is inadequate to protect their rights for, without the restraining order issued by this Court, the respondents could have executed the decision and orders in question. 18 ISSUES The first issue to be resolved here is whether the respondent Judge acted without or in excess of jurisdiction or with grave abuse of discretion in declaring the defendants in default, in receiving plaintiff's evidence ex parte and in rendering judgment thereon. The second is whether ordinary appeal, not certiorari and prohibition, is the proper remedy available to petitioners. 1. With regard to the first issue, respondents contend that the motion to dismiss the complaint is a "useless piece of paper" because the notice of hearing incorporated therein is addressed to the Clerk of Court, not to the party concerned, that is, the plaintiff or his counsel, as required by the rules. We do not agree. As copied verbatim above, the notice of hearing states the time and place of hearing, and a copy thereof was sent

through registered mail seven (7) days before the date set for the hearing of the motion but actually received by plaintiff's counsel one (1) day before said date, as per certification of the Quezon City Post Office. To Our mind, what is decisive here is that plaintiff had sufficient notice of the time and place of the hearing of the motion to dismiss. We have said in Manila Surety and Fidelity Co., Inc. v. Bath Construction and Company, 19 "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." In the Matusa case, We said that granting that the notice is defective for failure to specify the exact date when the motion to dismiss should be heard, the Court, in taking cognizance of the motion on the date set for the hearing thereof, cured whatever iota of defect such a pleading may have had, especially if it is taken into account that upon receipt of the motion to dismiss, plaintiff was properly notified of the existence of said pleading. 20 Indeed, We declared that there may be cases where the attendance of certain circumstances "may be considered substantive enough to truncate the adverse literal application of the pertinent rules violated." 21 The case at bar is such an instance, because private respondent had sufficient notice of the place, time and date when the motion to dismiss was to be heard. It is, therefore, evident from the foregoing that the respondent Judge acted with grave abuse of discretion when he declared the petitioners in default. The motion to dismiss was pending before the court when such declaration was made, and it is generally irregular to enter an order of default while a motion to dismiss remains pending and undisposed of. 22 The irregularity of the order of default is evident from the fact that when the petitioners were declared in default, their time for filing an answer had not yet commenced to run anew because on said date, their counsel had not yet received any notice of the action taken by the court on their motion to dismiss. Under Section 4 of Rule 16 of the Revised Rules of Court, if the motion to dismiss is denied or if the determination thereof is deferred, the movant shall file his answer within the period prescribed by Rule 11, computed from the time he received notice of the denial or deferment, unless the court provides a different period. In other words, the period for filing responsive pleading commences to run all over again from the time the defendant receives notice of the denial or deferment of his motion to dismiss. Inasmuch as petitioners were declared in default while their motion to dismiss was still pending resolution, they were, therefore, incorrectly declared in default, and the holding of the trial of the case on the merits, in their absence, without due notice to them of the date of hearing, was a denial of due process. 23 Consequently, the order of default, the judgment and the order of execution are patent nullities. In connection with the foregoing, We notice the ambivalence with which the respondent Judge applied the rules. Thus, while he was unduly strict regarding the requirements of notice of hearing to the defendants, he was, at the same time, unduly liberal with respect to the plaintiff. For instance, plaintiff's Motion for Reconsideration did not contain any notice of hearing, or proof of service thereof, or even the address of the plaintiff who signed personally said motion. Notwithstanding the absence of these data, respondent Judge readily granted the motion. Then there is plaintiff's motion for immediate execution of judgment pending appeal. Although it was apparent that a copy of said motion could not have been received by the counsel for the defendants at their office in Baguio City prior to the date of the hearing on June 3, 1974, considering that it was only on May 29, 1974 when a copy of said motion was allegedly posted by registered mail at the Manila Post Office, respondent Judge did not require, as he did with respect to defendants' motion to dismiss, proof of service of the notice thereof. Such conduct falls short of the requirement that the official conduct of a judge should not only be free from impropriety, but also from the appearance of impropriety.. 2. There is, moreover, the consideration that the challenged judgment seeks to enforce a contract which is patently void because it is contrary to law and public policy. The contract of professional services entered into between private respondent and the petitioners, while the former was still a judge of the Court of First Instance, constituted private practice of law and in contravention of the express provision of Section 35 of Rule 138 of the Revised Rules of Court. The aforecited Rule was promulgated by this Court, pursuant to its constitutional power to regulate the practice of law. It is based on sound reasons of public policy, for there is no question that the rights, duties, privileges and functions of the office of an attorney-at-law are so inherently incompatible with the high official functions, duties, powers, discretions and privileges of a judge of the Court of First Instance. 24 This inhibitory rule makes it obligatory upon the judicial officers concerned to give their full

time and attention to their judicial duties, prevent them from extending special favors to their own private interests and assure the public of their impartiality in the performance of their functions. These objectives are dictated by a sense of moral decency and the desire to promote the public interest. Private respondent should have known or ought to know, that when he was elevated to the Bench of the Court of First Instance as a judge thereof, his right to practice law as an attorney was suspended and continued to be suspended as long as he occupied the judicial position. 25 It is evident, therefore, that the aforesaid contract is void because a contract, whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy, is considered inexistent and void from the beginning. 26 3. On the question of the remedy availed of by petitioners, respondents maintain that where appeal is available, as it has been shown to be available to the petitioners when they perfected their appeal in Civil Case No. N-1963, the remedy of certiorari and/or prohibition cannot be resorted to. In resolving this question, We advert to Our ruling in Matute v. Court of Appeals, supra, where We stated: t.hqw In opposing the instant petition, the plaintiff-respondent contends that the remedy of the defendant petitioner is not a petition for certiorari but an ordinary appeal pursuant to Rule 41, Section 2, paragraph 3 which reads: 'A party who has been declared in default may likewise appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by him in accordance with Rule 38.' . We do not agree. The remedy provided for in the above-quoted rule is properly, though not exclusively, available to a defendant who has been validly declared in default. It does not preclude a defendant who has been illegally declared in default from pursuing a more speedy and efficacious remedy, like a petition for certiorari to have the judgment by default set aside as a nullity. It should be emphasized that a defendant who is properly declared in default is differently situated from one who is improvidently declared in default. The former irreparably loses his right to participate in the trial, while the latter retains such a right and may exercise the same after having the order of default and the subsequent judgment by default annulled and the case remanded to the court of origin. Moreover the former is limited to the remedy set forth in section 2, paragraph 3 of Rule 41 by virtue of which he can contest only the judgment by default on the designated ground that it is contrary to the evidence or the law; the latter, however, has the option to avail of the same remedy or to forthwith interpose a petition for certiorari seeking the nullification of the order of default even before the promulgation of a judgment by default, or in the event that the latter has been rendered, to have both court decrees the order of default and the judgment by default declared void. The defendant-petitioner's choice of the latter course of action is correct for he controverts the judgment by default not on the ground that it is not supported by evidence or it is contrary to law, but on the ground that it is intrinsically void for having been rendered pursuant to a patently invalid order of default. Granting, however, that an appeal is open to the defendantpetitioner, the same is no longer an adequate and speedy remedy considering that the court a quo had already ordered the issuance of a writ of execution and the carrying out of such writ loomed as a great probability. This is in consonance with the doctrine enunciated in Vda. de Saludes v. Pajarillo and Bautista (78 Phil. 754) wherein this Court held that an 'appeal under the circumstances was not an adequate remedy there being an order or execution issued by the municipal court.' Hence, the rule that certiorari does not lie when there is an appeal is relaxed where, as in the instant case, the trial court had already ordered the issuance of a writ of execution. The above ruling applies with cogent force in the present case. WHEREFORE, certiorari is granted and the default order, judgment and writ of execution rendered by the respondent Judge in Civil Case No. N-1963 are hereby set aside, and the respondent Judge is ordered to hear and decide the motion to dismiss the complaint, taking into account Our foregoing opinion. The temporary restraining order is made permanent, with costs against private respondent.

9.

AQUINO V. BLANCO

On February 5, 1947, the Court of First Instance of Iloilo in an action brought therein by the petitioners Santiago Aquio and Dionisia Aguirre, as plaintiffs, against respondent Dominga Salveron, as defendant, rendered judgment of which the following was the dispositive part: Por tanto, se dicta sentencia declarando que la demandada Dominga Salveron es la duea de la parcela de terreno No. 1 de la demanda; y que los esposos demandantes Dionisia Aguirre y Santiago Aquio son los dueos de la parcela de terreno No. 2 de la demanda. Sin especial pronunciamento en cuanto a la costas. (Petition, p. 1.) At the trail of that case the therein defendant Dominga Salveron was represented by Atty. Basilio Sorioso. Later said attorney was appointed, and qualified, as Assistant Provincial Fiscal of Iloilo, which position he was occupying on February 11, 1947. On this last date notice of the aforementioned judgment was served on him. For reasons which do not appear in the record, service of sad judgment was served on Mr. Sorioso despite the fact that he was no longer in private practice and was already discharging the official duties of assistant provincial fiscal. The verified answer of respondent Dominga Salveron in the present proceedings alleges these last facts, and further avers that she only knew that a decision had been rendered in the case after the 21st of March, 1947, when the writ of execution in the meantime issued was served on her. This case having been submitted to this Court without the production of evidence but merely upon the verified petition and verified answer, under the doctrine laid down by this Court in Evangelista vs. De la Rosa, 76 Phil., 115, as well as in the case of Bauermann vs. Casas, 10 Phil., 386, 390, the petitioners must be understood to admit the truth of all material and relevant allegations of the adverse party, and to rest their petition upon those allegations taken together with such of their own as are admitted in the pleadings. Under this rule, the allegations of respondent Dominga Salveron above referred to must be accepted. But this is not all; there exists in the record of the instant case the affidavit of Mr. Basilio Sorioso dated April 1, 1947, which was attached to the defendant's (Dominga Salveron's) motion of April 2,1947 (Annex A of answer) testifying to the following facts, among others: that he was the attorney of said defendant in the said case; that he received a copy of the decision of the court on February 11, 1947, when he was already in the discharge of the duties of assistant provincial fiscal; that being very busy in the performance of said duties when he received said copy, he left said decision on his table, and due to the many tenancy cases he was then attending to, and even up to the date of his affidavit, aside from attending to the trial of the cases assigned to him, he failed to notify said defendant, who was then living in Anilao, which is 45 kilometers from the City of Iloilo, of the same; that his failure to notify said defendant was due to inadvertence or excusable negligence on his part as at the time the copy of the decision was served on him he was no longer practicing law but was discharging his official duties as assistant provincial fiscal and there was at the time when he received said copy so many tenancy cases he was attending to and there were so many papers on his table that the said decision "just slipped out of my mind"; that a few days after the issuance of the writ of execution on March 21, the same was served on the defendant and the decision came to her knowledge; and that had the defendant been notified of the decision she would have taken steps to appeal therefrom because she believes she has a good case. When Attorney Sorioso was appointed to the position of assistant provincial fiscal and therein qualified, by operation of law he ceased to engage in private law practice, and as a consequence he became simultaneously disqualified to continue representing his former client, the herein respondent Dominga Salveron, in the abovementioned case. So that in contemplation of law the notice of the decision upon him on February 11, 1947, was not a notice upon said respondent, and the period for perfecting an appeal on the part of the latter in reality did not then commence to run but only, if at all, when she acquired knowledge of said decision upon the service on her of the writ of execution on March 26, 1947. But even if the above facts had not intervened, there is in the record a clear showing that the case is wholly covered by Rule 38, section 2. The writ of execution thus issued under date of March 21, 1947, was served on respondent Dominga Salveron, as defendant, on March 26, 1947, according to paragraph 3 of the petition. But as alleged in paragraph 4 of the same petition and also in paragraph 4 of the answer, said respondent under date of April 2, 1947, filed a petition to vacate said writ of execution. And although said petition was first denied by vacation Judge Villalobos, it was

later granted by respondent Judge Blanco through the latter's order of May 24, 1947, quoted in paragraph 5 of the petition herein. That writ of execution was an "order" or "proceeding" entered or taken against said respondent, as defendant, within the meaning of Rule 38, section 2, providing: SEC. 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof. When a judgment or ordered is entered, or any other proceeding is taken, against a party in a Court of First Instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause prying that the judgment, order, or proceeding be set aside. Under these facts and circumstances, we are satisfied that a good case for equitable relief has been made out under Rule 38, section 2, and that Judge Blanco did not abuse his discretion in entering his order of May 24, 1947, quoted on page 3 of the instant petition, setting aside the order dated April 29, 1947, entered by vacation Judge Villalobos, and permitting the therein defendant to present a record on appeal. Petition dismissed, with costs.

10. VILLEGAS V. LEGASPI These two cases (L-53869 and L-51928) filed in May, 1980 and September, 1979, respective, involved the prohibition in Section 11, Article VIII of the 1973 Charter, which used to read: Sec. 11. No member of the National Assembly shall appear as counsel before any court inferior to a court with appellate jurisdiction, ... The antecedents facts follows: L-53869 On September 27, 1979, a complaint for annulment of bank checks and damages was filed by Raul A. Villegas against the Vera Cruz spouses and Primitivo Cania, Jr. (private respondents) before the Court of First Instance of Cebu, Branch XVI, then presided by Hon. Ceferino E. Dulay (Civil Case No. 431-L). An answer, dated October 11, 1979, was filed by private respondents through their counsel, Assemblyman Valentino 1. Legaspi, a member of the Batasang Pambansa from the province of Cebu. Raul A. Villegas "challenged" the appearance of Assemblyman Legaspi as counsel of record on the ground that he is barred under the Constitution from appearing before Courts of First Instance, which are essentially trial Courts or Courts of First Instance, which are essentially trial Courts or Courts of First Instance, which are essentially trial Courts or Courts of original jurisdiction. After the Opposition and Reply to the Opposition were filed, Judge Dulay issued an Order inhibiting himself from the aforesaid case because Assemblyman Legaspi was likewise the lawyer of his wife in two pending cases. The case was re-raffled and redocketed as Civil Case No. R-18857, and transferred to Branch II, presided by Judged Francisco P. Burgos (respondent Court). In an Order, dated February 27, 1980, Judge Burgos denied the disqualification of Assemblyman Legaspi, as well as the Motion for Reconsideration filed thereafter. Hence, this recourse to certiorari and Prohibition. A temporary Restraining Order was issued ex-parte by this Tribunal on May 22, 1980 enjoining respondent Court from acting in Civil Case No. R-18857 below. L-51928 Edgardo P. Reyes filed, on July 3, 1979, Civil Case No. 33739 before the Court of First Instance of Rizal (Pasig), Branch XXI, against N. V. Verenigde Buinzenfabrieken Excelsior-De Maas and private respondent Eustaquio T.C. Acero to annul the sale of Excelsior's shares in the International Pipe Industries Corporation (IPI) to Eustaquio T.C

Acero, allegedly on the ground that, prior thereto, the same shares had already been sold to him (Reyes). Assemblyman Estanislao Fernandez entered his appearance as counsel for Excelsior. This appearance was questioned on the ground that it was barred by Section 11, Article VIII of the 1973 Constitution, above-quoted. Initially, this case (L-51928) was filed as a Supplemental Petition to L-51122 (Eugenio Puyat, et als. Hon. Sixto T.J. de Guzman), but this Court ordered it docketed separately. And since the issue involved is on all fours with L53869, the Court opted to resolve Case No. L-51928 jointly with L-53869 instead of with L-51122 as originally directed. The novel issue for determination is whether or not members of the Batasang Pambansa, like Attorneys Valentino L. Legaspi and Estanislao A. Fernandez, can appear as counsel before Courts of First Instance. A comparison of Section 11, Article VIII, of the 1973 Constitution prohibiting any Assemblyman from appearing as counsel "before any Court inferior to a Court with appellate jurisdiction", and the "similar" provision of Section 17, Article VI, of the 1935 Charter is elucidating. The last sentence of the latter provision reads: ... No member of the Commission on Appointments shall appear as counsel before any Court inferior to a collegiate Court of appellate jurisdiction. A significant amendment is the deletion of the term "collegiate". Further, the limitation now comprehends all members of the Batasang Pambansa, and is no longer confined to members of the Commissions on Appointments, a body not provided for under the 1973 Constitution. Under the amendment to Article VIII of the 1973 Constitution, ratified in a national plebiscite held on April 7, 1981, Section 11 now reads: SEC. 11. No member of the Batasang Pambansa shall appear as counsel before any court without appellate jurisdiction, ... The term 'collegiate" remains deleted , and the terminology is now "Court without appellate jurisdiction." Although the cases at bar were filed prior to the aforesaid amendment, they should be resolved under the amended provision. We abide by the proposition that "as a general rule, the provisions of a new Constitution take effect immediately and become operative on pending litigation." 1 Clearly, what is prohibited to a Batasang Pambansa member is "appearance as counsel" "before any Court without appellate jurisdiction. "Appearance" has been defined as "voluntary submission to a court's jurisdiction". 2 "Counsel" means "an adviser, a person professionally engaged in the trial or management of a cause in court; a legal advocate managing a case at law; a lawyer appointed or engaged to advise and represent in legal matters a particular client, public officer, or public body". 3 Ballantine's Law Dictionary says a counsel is "counselor, an attorney at law; one or more attorneys representing parties in an action". 4 Thus, "appearance as counsel" is a voluntary submission to a court's jurisdiction by a legal advocate or advising lawyer professionally engaged to represent and plead the cause of another. This is the common, popular connotation of this word which the Constitution must have adopted. In one case, 5 in resolving the question of what constitutes 'appearance as an advocate," the Court held that "advocate" the Court held that "advocate" means one who pleads the cause of another before a tribunal or judicial court, a counselor. Judging from the prescribed criteria, there should be no question that Assemblyman Valentino L. Legaspi, in preparing the Answer for private respondent-spouses in Civil Case No. R-18857 before the Court of First Instance of Cebu, Branch II, appears as their counsel. Similarly, Assemblyman Estanislao A. Fernandez appears as counsel

for Excelsior in Civil Case No. 33739 of the Court of First Instance of Rizal (Pasig), Branch XXI. They represent and plead the cause of another before a Court of justice. The next poser then arises: are the Courts of First Instance, where Assemblyman Legaspi and Fernandez, respectively, appear as counsel of record, Courts with appellate jurisdiction? There are authorities to the effect that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a case already instituted and does not create that cause 6 Or, that it necessarily implies that the subject-matter has been instated in and acted upon by some other court whose judgment or proceedings are to be reviewed. 7 In an early Philippine case, 8 it was held to mean jurisdiction to review the judgment of an inferior court. And, that it calls for and demands previous legitimate jurisdiction by a court of origin. 9 By law, Courts of First Instance are Courts of general original jurisdiction. 10 However, under the same statute, their jurisdiction has been stated to be of two kinds: (a) original and (b) appellate. 11 They have appellate jurisdiction over all cases arising in City and Municipal Courts in their respective provinces except over appeals from cases tried by Municipal judges of provincial capatals or City Judges pursuants to the authority granted under the last paragraph of Section 87 of the Judiciary Act. 12 It is rather clear that Courts of First Instance, by virtue of a specific bestowal by the Judiciary Act of 1948, as amended, can be Courts with appellate jurisdiction. And, by the deliberate omission of the word "collegiate" in both the original and amended Section 11, Article VIII of the 1973 Constitution, the obvious intention of the framers is that Courts of First Instance, as appellate Tribunals, no longer fall within the ambit of the previous prohibition. They are single-Judge Courts with appellate jurisdiction from decisions and orders of City and Municipal Courts. 13 Stated otherwise, under the amended proviso, Courts of First Instance are not Courts without appellate jurisdiction. It is contended, however, that the Courts of First Instance in these two cases took cognizance of the suits in the exercise of their exclusive original and not appellate jurisdiction, hence, Assemblymen Fernandez and Legaspi are still prohibited from appearing before said Courts as counsel. There is merit to this contention. It should be borne in mind that Courts of First Instance have dual "personality". Depending on the case before it, said Courts can be either of appellate or original jurisdiction. The question then to be resolved is whether or not Assemblymen can appear as counsel before Courts of First Instance in cases originally filed with them. We are of the considered opinion that, to render effective the Constitutional provision, appearance by legislators before Courts of First Instance should be limited to cases wherein said Courts exercise appellate jurisdiction. This is true to the time-honored principle that whatever is necessary to render effective any provision of a Constitution, whether the same be a prohibition or a restriction, must be deemed implied and intended in the provision itself. 14 It bears repeating that under Section 17, Article VI of the 1935 Charter, it was provided that members of the Commission on Appointments shall not "appear as counsel before any Court inferior to a collegiate Court of appellate jurisdiction." The intent was clear that members of the Commission on Appointments shall not "appear as counsel before any Court inferior to a collegiate Court of appellate jurisdiction." The intent was clear that members of the Commission on Appointments could not appear before Courts of First Instance. Uppermost in the minds of the framers was "appellate jurisdiction" more than Court. Under Section 11, Article VIII of the 1973 Constitution, the scope of the prohibition was expanded to embrace all members of the National Assembly who were barred from "appear(ing) as counsel before any Court without appellate jurisdiction." Consistently, the principal criterion is "appellate jurisdiction." So that, when a legislator appears in an original case filed with a Court with "appellate jurisdiction."

Appellate practice is all that is permitted because of the admitted predominance of lawyers in the legislature. 15 Their office has always favored them with the influence and prestige that it carried. Today, as before, it is only "appellate practice" that is allowed with the significant difference that, this time, the Court need not be a collegial body. This so because with the removal of the legislative power to review appointments the source of power and influence that members of the National Assembly could unduly exert in the exercise of the legal profession has been greatly minimized. This is a situation where the restricted meaning must prevail over the general because the nature of the subject matter of the context clearly indicates that the limited sense is intended. 16 In fact, the original emandement proposed by Antonio V. Raquiza, Delegate of the First District, Ilocos Norte, in Resolution No. 345 entitled "Prohibiting Members of the National Assembly to Use Their Office As a Means of Promoting Sel-Interest" was to bar a National Assembly member from appearing as counsel before any Court. In the "Whereas" clauses, that proposal was believed to be an "improvement" over Section 17, Article VI of the 1935 Constitution and the purpose of the proposed amendement was explained as follows: xxx xxx xxx

The objective of the prohibition, then and now, is clearly to remove any possibility of undue influence upon the administration of justice, to eliminate the possible use of office for personal gain, to ensure impartiality in trials and thus preserve the independence of the Judiciary. The possible influence of an Assemblyman on a signed Judge of the Court of First Instance, though not entirely removed, is definitely diminished where the latter Court acts in the exercise of its appellate instead of original jurisdiction. The upper hand that a party represented by an Assemblyman by virtue of his office possesses is more felt and could be more feared in original cases than in appealed cases because the decision or resolution appealed from the latter situation has already a presumption not only of regularity but also of correctness in its favor. In fine, "appellate practice" is an intended qualification dictated by principles of reason, justice and public interest. The limited application to "appellate practice" is a view-point favored by constitutionalist of eminence, Chief Justice Enrique M. Fernando, in his scholarly work "The Constitution of the Philippine, 22 where he said: It is to be noted that at present he may appear as counsel in any criminal case, but he cannot do so before any administrative body. Also, while it is only appellate practice that is allowed a member of the National Assembly, formerly, such a limitation applied solely to a Senator or Representative who was in the Commission on Appointments, a body abolished under the present Constitution. Those differences should be noted (Emphasis supplied) 23 Chief Justice Enrique M. Fernando also expounded on the reason behind the Constitutional prohibition, thus: ... The need for it was felt by the 1934 Constitutional Convention, a sentiment shared by the last Constitutional Convention, because of the widespread belief that legislators found it difficult to resist, as perhaps most men, the promptings of self-interest. Clearly, the purpose was and is to stress the fiduciary aspect of the position. There is thus fidelity to the maxim that a public office is a public trust. ... 24 Since the respective Courts of First Instance, before which Assemblymen Legaspi and Fernandez appeared as counsel, were acting in the exercise of original and not appellate jurisdiction, they must be held barred from appearing as counsel before said Courts in the two cases involved herein. WHEREFORE, granting the Writs prayed for, the Order issued on February 27, 1980 by the Court of First Instance of Cebu, Branch II, in Civil Case No. R-18857, is hereby set aside, and Attorneys Estanislao A. Fernandez and Valentino Legaspi hereby declared prohibited from appearing as counsel before the Court of First Instance of Rizal (Pasig), Branch XXI, in Civil Case No. 33739, and before the Court of First Instance of Cebu, Branch II, in Civil Case No. r-18857, respectively. The Restraining Order issued heretofore in L-53869 is hereby made permanent. No costs in either case.

2. The Constitutional provision enumerates the kind of court or administrative cases where a legislator cannot appear. In our proposal he is absolutely barred because it is feared that the practice of his profession will interfere with the performance of his duties or that because the power of his office might influence the administration of justice. ... (Emphasis supplied) 17 The co-author of Resolution No. 345. Delegate Leocadio E. Ignacio from the lone District of Isabela, and Floor Leader of the 1971 Constitutional Convention, elucidated further on the purpose behind the prohibition when he wrote in his Position Paper that 'The prohibition against appearing as counsel is necessary because of the under influence which members of Congress enjoy when they practice before the Courts and especially before administrative agencies. It is an accepted fat that our legislature is composed of a predominance of practicing lawyers, and who are therefor expected to be naturally not averse to exerting all influence that they can muster in the pursuit of their profession." Continuing, he said: "The inability to practice as counsel ... should be part of the sacrifices entailed in running for the position of lawmaker. 18 The amendement proposed by Delegate Gonzalo O. Catan, Jr. of Negros Oriental even went further: "No member of the National Assembly shall, during his term of office, appear as counsel, directly or indirectly, in any Court or administrative body ..." 19 Delegate Emerito M. Salva from the Second District, Ilocos Norte, substituted his own amendment, thus: Section 13. No member of the National Assembly shall, during his term of office, practice directly or indirectly any occupation or profession or be allowed to engage directly or indirectly in any trade, business, or industry. 20 and explained: 10.2. Explaining the substitute amendment, Delegate Salva said that the assemblymen should render full-time service to the national. He pointed out that they should be barred from the practice of their respective professions since they would reasonably be compensated for devoting their time to the work of the National Assembly. 21 While Section 11, Article VIII, as finally adopted by the Constitutional Convention, did not carry the several amendments proposed, they are reflective of the sentiment prevailing at the 1971 Constitutional Conventional, and reinforce the condition that appearance as counsel by Assemblymen was meant to be confined to appellate practice and not unlimited practice before Courts of First Instance. That sentiment has been carried over the amendment ratified in the April, 1981 plebiscite. For, there is no substantial difference between "Court inferior to a Court with appellate jurisdiction" (the original 1973 provision) and "Court without appellate jurisdiction' (the amended provision).

11. US VS. NEY This proceeding is to punish the defendants for contempt.chanroblesvirtualawlibrary chanrobles virtual law library In the year 1902 this court decided that the defendant, J. Garcia Bosque, was not entitled to admission to practice law in the Philippine Islands, upon the ground that after the change of sovereignty he had elected to remain a Spanish subject and as such was not qualified for admission to the bar ( In re Bosque, 1 Phil. Rep., 88), and an order was entered accordingly.chanroblesvirtualawlibrary chanrobles virtual law library In the year 1904 he made an arrangement with the defendant Ney, a practicing attorney, to carry on business together, sending out a circular signed "Ney & Bosque," stating that they had established an office for the general practice of law in all the courts of the Islands and that Bosque would devote himself especially to consultation and office work relating to Spanish law. The paper was headed "Law Office - Ney & Bosque. Juan G. Bosque, jurisconsulto espaol - C.W. Ney, abogado americano."chanrobles virtual law library Since that time the defendant Bosque has not personally appeared in the courts, and with one exception, occuring through an inadvertance, papers from the office were signed not with the firm name alone nor with any designation of the firm as attorneys, but with the words "Ney & Bosque - C.W. Ney, abogado."chanrobles virtual law library On two occasions, one on May 1, 1905, and the other on September 15, 1906, this court refused to consider petitions so singed with the names of the defendants and the practice being repeated, on the 2nd day of October, 1906, ordered the papers sent to the Attorney-General to take appropriate action thereon, and he thereupon instituted this proceeding.chanroblesvirtualawlibrary chanrobles virtual law library The defendants disclaim any intentional contempt, and defend their acts as being within the law.chanroblesvirtualawlibrary chanrobles virtual law library Section 102 of the Code of Civil procedure, providing that every pleading must be subscribed by the party or his attorney, does not permit, and by implication prohibits, a subscription of the names of any other persons, whether agents or otherwise; therefore a signature containing the name of one neither a party nor an attorney was not a compliance with this section, nor was it aided by the too obvious subterfuge of the addition of the individual name of a licensed attorney. The illegality in this instance was aggravated by the fact that one of the agents so named was a person residing in these Islands to whom this court had expressly denied admission to the bar. The papers in question were irregular and were properly rejected. We refuse to recognize as a practice any signature of names appended to pleadings or other papers in an action other than those specified in the statute. A signature by agents amounts to a signing by non-qualified attorneys, the office of attorney being originally one of agency. ( In re Cooper, 22 N.Y., 67.) We do not, however, mean to discountenance the use of a suitable firm designation by partners, all of whom have been duly admitted to practice.chanroblesvirtualawlibrary chanrobles virtual law library It is to be noted that we are not now considering an application for the suspension or removal of the defendant Ney from his office as attorney. The defendant Bosque, not being an officer of the court, could not be proceeded against in that way, and probably for that reason the Attorney-General instituted this form of proceeding.chanroblesvirtualawlibrary chanrobles virtual law library Should either of these defendants be thus punished for contempt?chanrobles virtual law library Section 232 of the Code of Civil Procedure describes contempt as follows: 1. Disobedience of or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction granted by a court or judge;chanrobles virtual law library 2. Misbehavior of an officer of the court in the performance of his official duties or in his official transactions. Where the law defines contempt, the power of the courts is restricted to punishment for acts so defined. ( Ex parte Robinson, 86 U.S., 505.)chanrobles virtual law library As to the first subdivision of this section, no direct order or command of this court has been disobeyed or resisted by the defendant Ney. The only order that the defendant Bosque can have disobeyed is the one denying him the right to practice law. This order, however, was directly binding upon him, notwithstanding proceedings taken for its review, and any hope on his part of ultimately reversing it furnished no excuse for its violation. Even had he been entitled under the statute to practice law without any license from the court and without an application to it, yet its order made on his own petition. A mandate of the court, while in force, must be obeyed. The irregular signature to papers, though affixed by his associate, had his authorization and constitutes a substantial attempt to engage in practice. Moreover the firm circular in setting forth the establishment of an office for the general practice of law in all the courts of the Islands, amounted to an assertion of his right and purpose, not effectively qualified by the addition that he would devote himself to consultation and office work relating to Spanish law. Spanish law plays an important part in the equipment of a lawyer in the Archipelago, standing on a different footing from the law of other foreign countries, in regard to which a skilled person might as a calling, advise without practicing law. The fact stated on the circular that he was a Spanish lawyer did not amount to a disclaimer of his professional character in the Islands. Independent of statutory provisions, a foreigner is not by reason of his status disqualified from practicing law. One of the most eminent American advocates was an alien barrister admitted to the bar after a contest in the court of New York State. ( In re Thomas Addis Emmett, 2 Cain's Cases, 386.) Consequently the conduct of the defendant Bosque amounts to disobedience of an order made in a proceeding to which he was a party.chanroblesvirtualawlibrary chanrobles virtual law library Under the second subdivision of the section cited, Bosque is obviously not answerable, inasmuch as he was not an officer of the court. On the other hand, under this subdivision, the defendant Ney, as an admitted attorney, is liable if his conduct amounted to misbehavior. We are of the opinion that it did. In the offense of Bosque in holding himself out as a general practitioner Ney participated, and for the improper signature of the pleadings he was chiefly and personally responsible. It is impossible to say that the signature itself was a violation of the law, and yet hold guiltless the man who repeatedly wrote it. Moreover we regret to add that his persistent and rash disregard of the rulings of the court has not commended him to our indulgence, while the offensive character of certain papers recently filed by him forbids us from presuming on the hope of his voluntarily conforming to the customary standard of members of the bar.chanroblesvirtualawlibrary chanrobles virtual law library The judgment of the court is that each of the defendants is fined in the sum of 200 pesos, to be paid into the office of the clerk of this court within ten days, with the costs de oficio. So ordered.

12. BELTRAN V. ABAD On March 28, 1983, this Court held respondent ELMO S. ABAD in contempt of court for unauthorized practice of law and he was fined P500.00 with subsidiary imprisonment in case he failed to pay the fine. (121 SCRA 217.) He paid the fine. On May 5, 1983, Atty. Procopio S. Beltran, Jr., the complainant, filed a MOTION TO CIRCULARIZE TO ALL METRO MANILA COURTS THE FACT THAT ELMO S. ABAD IS NOT AUTHORIZED TO PRACTICE LAW. Asked to comment on the Motion, Mr. Abad opposed it. He denied the allegations in the Motion that he had been practicing law even after our Decision of March 28, 1983. Because the Motion and the Opposition raised a question of fact, in Our resolution of April 10, 1984, We directed "the Clerk of Court to conduct an investigation in the premises and submit a report thereon with appropriate recommendation." In a comprehensive and well-documented Report which is hereby made a part of this Resolution, the Clerk of Court concluded: The aforesaid documentary and testimonial evidence, as well as the above report of the NBI, have clearly proved that respondent Abad is still practicing law despite the decision of this Court of March 28, 1983. The Clerk of Court makes the following recommendations: a. imposed a fine of P2,000.00 payable within ten (10) days from receipt of this resolution or an imprisonment of twenty (20) days in case of non-payment thereof, with warning of drastic disciplinary action of imprisonment in case of any further practice of law after receipt of this resolution; and b. debarred from admission to the Philippine Bar until such time that the Court finds him fit to become such a member. It is further recommended that a circular be issued to all courts in the Philippines through the Office of the Court Administrator that respondent Elmo S. Abad has not been admitted to the Philippine Bar and is therefore not authorized to practice law. We find the Report to be in order and its recommendations to be well-taken. However, the latter are not sufficiently adequate in dealing with the improper activities of the respondent. The Report has found as a fact, over the denials of the respondent under oath, that he signed Exhibits B, C, and D, and that he made appearances in Metro Manila courts. This aspect opens the respondent to a charge for perjury. The Report also reveals that Atty. Ruben A. Jacobe collaborated with the respondent as counsels for Antonio S. Maravilla one of the accused in Criminal Case Nos. 26084, 26085 and 26086 of the Regional Trial Court of Quezon City. (Exhibit D.) Atty. Jacobe should be called to account for his association with the respondent. WHEREFORE, Elmo S. Abad is hereby ordered to pay a fine of P12,000.00 within ten (10) days from notice, failing which he shall be imprisoned for twenty (20) days. He is also warned that if he persists in the unauthorized practice of law he shall be dealt with more severely. The Court Administrator is directed to circularize all courts in the country that the respondent has not been authorized to practice law. A copy of the circular should be sent to the Integrated Bar of the Philippines.

The Clerk of Court is directed to file with the City Fiscal of Manila an appropriate complaint for false testimony against the respondent. Finally, Atty. Ruben A. Jacobe is required to explain within ten (10) days from notice why he should not be disciplined for collaborating and associating in the practice of the law with the respondent who is not a member of the bar. REPORT AND RECOMMENDATION RE: Bar Matter No. 139 Elmo S. Abad, 1978 Successful Bar Examinees This report is submitted in compliance with the resolution of April 10, 1984. In the En Banc decision of March 28, 1983 in the above-entitled case, the Court found respondent Elmo S. Abad, who passed the 1978 Bar examinations but has not been admitted to the Philippine Bar, in contempt of Court for illegal practice of law, and imposed upon him a fine of P500.00. Respondent paid the fine on May 2, 1983. On May 5, 1983 complainant filed a motion to circularize to all Metro Manila courts the fact that respondent is not authorized to practice law. The Court in its resolution of May 26, 1983 required respondent to comment on the said motion. Respondent filed "Opposition to Motion and Manifestation" which was noted in the resolution of June 30, 1983. The complainant on March 14, 1984 reiterated his motion to circularize to all Metro Manila courts that respondent is not authorized to practice law, with prayer that the latter be punished with greater severity. He stated that "Mr. Abad is still practicing law as evidenced by the fact that last December 8, 1983 at about 2:00 o'clock in the afternoon, Mr. Abad appeared before the Regional Trial Court, National Capital Judicial Region, Branch 100 located at the 11th Floor, City Hall, Quezon City presided by the Honorable Judge Jorge C. Macli-ing that Mr. Abad appeared as counsel for a certain Caroline T. Velez in Criminal Case Nos. 26084, 26085 and 26086 entitled People of the Philippines vs. Maravilla, et al. Mr. Abad even cited in the pleading his Professional Tax Receipt to prove that he is a licensed legal practitioner which is utterly false. Mr. Abad gave his address as Ruben A. Jacobe & Associates, Ground Floor, ADC Building, Ayala Avenue, Makati, Metro Manila." Respondent filed an "Opposition to Motion" denying the complainant's allegation, to wit: 4. ... respondent is not presenting himself to the general public as a Practicing Lawyer like what Atty. Procopio S. Beltran insists to the Honorable Court; 5. That this motion is motivated by Atty. Beltran's personal desire to inflict malice and oppression upon the respondent who even until now does not accede to the terms and conditions of the former in connection with several cases filed against him by the said Atty. Beltran; 6. Respondent respectfully submits that Atty. Beltran is trying his very best to harass the respondent under the guise of conducting a Crusade personally with the end in view that respondent submit to his ill-desires and veiled threats and finally come into terms with him. In the hearings conducted by the undersigned, to prove the allegations in his motion, complainant presented the records in Criminal Cases Nos. 26084, 26085 and 26086, entitled "People of the Philippines vs. Antonio S. Maravilla, Jr., et al." of Branch 100, Regional Trial Court, Quezon City, which were brought to this Court and Identified by Atty. Candido A. Domingo, Clerk of Court of said trial court, and marked by the undersigned as the following exhibits:

1. Transcript of stenographic notes taken down during the initial trial of the aforesaid criminal cases on December 8, 1983, at 1:30 in the afternoon (Exhibit "A") where it is stated that Atty. Elmo Abad was counsel for Juan del Gallego III (Exhibit "A-1"); 2. Urgent motion for withdrawal from custody of motor vehicle filed for Caroline T. Velez by Elmo Abad (Exhibit "B") with his name and signature appearing therein as counsel for the said movant (E exhibit "B-1"); 3. Page 4 of aforesaid motion (Exhibit "C") with the name and signature of Elmo Abad appearing therein as submitting the aforesaid motion for consideration of the trial court (Exhibit "C-1"); 4. Urgent motion for deferment of arraignment and trial filed for accused Antonio S. Maravilla, assisted by counsel Ruben A. Jacobe with Elmo Abad (Exhibit "D"), with the names and signatures of Elmo Abad and Ruben A. Jacobe appearing as counsel for the accused movant Antonio S. Maravilla (Exhibit "D-1"); 5. Also page 3 of the aforesaid motion for deferment of arraignment and trial where the name and signature of Elmo Abad, together with those of Ruben A. Jacobe, appear as submitting the aforesaid motion for the consideration and approval of the trial court (Exhibit "D-2"); and 6. Order of Judge Jorge C. Macli-ing dated July 26, 1983 Exhibit "E") wherein on page 1 thereof appears the statement that the urgent motion for deferment of arraignment and trial and the urgent motion for withdrawal from court of motor vehicle were filed by "Atty. Elmo Abad (Exhibit "E-1"). Complainant also presented Exhibit "F", his letter to the branch Clerk of Court, Branch 100, Regional Trial Court, Quezon City requesting for certification that Mr. Abad had appeared as counsel for a certain Ma. Caroline T. Velez in the case entitled People vs. Maravilla, et al., with Exhibit "F-1" to indicate that said Clerk of Court was the addressee of the said letter. After the original of the above records were presented to and marked as exhibits by the Investigator, the same were xeroxed and the xerox copies were certified by Atty. Candido Domingo, Clerk of Court of Branch 100, Regional Trial Court, Quezon City. Complainant also testified that on December 8, 1983 he was at the 11th floor of the Quezon City Regional Trial Court NCJR, Branch 100, Quezon City and saw respondent Abad pass by in coat and tie and because he knew that Mr. Abad is a respondent in a case before the Supreme Court and had been declared as a non-lawyer in its decision of March 28, 1983, he (complainant) got curious and followed respondent and saw the latter enter the sala of Branch 100 of the Regional Trial Court of Quezon City; that he saw him there and after about twenty minutes when he went back to the same sala, he saw respondent in the place of the said court where the lawyers were supposed to be seated; that some days after, he went back to the said sala and inspected the records of the criminal cases numbered 26084, 26085 and 26086,* which are the subject matters of the certification of the Clerk of Court, Atty. Domingo, before the Investigator (TSN, May 26, 1984, pp. 24-26). Mrs. Eufrocina B. Ison the Court Reporter who took down and transcribed the stenographic notes of the proceedings in the afternoon of December 8, 1983 in the said criminal cases in the aforesaid trial court, appeared before the undersigned Investigator and positively Identified respondent Elmo Abad as the Atty. Elmo Abad who appeared as counsel for Juan del Gallego III in the aforesaid proceedings that afternoon of December 8, 1983 (pp. 1 & 2, TSN, May 11, 1984). She furthermore testified that she has no reason to be interested in this case in Identifying respondent Abad as the one who appeared in said court on said afternoon of December 8, 1983 (pp. 19-20, TSN, May 11, 1984). Respondent, when asked about the aforesaid motions, Exhibits "B" and "D", and the signatures therein, denied that he filed the same and that the signatures therein are his. He also denied that he appeared in the hearing in the afternoon of December 8, 1983 in the said trial court. According to him, he was in Batangas at the time. He also testified that the only explanation he could give regarding the signatures in the aforesaid exhibits is that the

same could have been effected by Atty. Beltran to show the Supreme Court that he (respondent) was still illegally practicing law. In connection with his defense, he filed (1) a motion to present the video tape to show his whereabouts at the time of the said hearing in the afternoon of December 8, 1983 in Branch 100, Regional Trial Court, Quezon City; and (2) a motion that his signature in the aforesaid motions filed in the said trial court in said criminal cases be compared with his genuine signature. The Investigator orally denied respondent's motion to present the video tape for the reason that the matter intended to be proved thereby, that is the time of day, cannot be accurately determined from the film as the same could be doctored by lighting effects (p. 16, TSN, May 11, 1984). As to the motion for examination and analysis of respondent's signature, the Investigator, to afford respondent full opportunity to prove his defense, sought the assistance of the National Bureau of Investigation to compare respondent's signature in the aforesaid exhibits with the signatures appearing in the pleadings that he filed in the Supreme Court, which latter signature he admits as genuine and as his own. On August 7, 1984, the National Bureau of Investigation submitted its report regarding the questioned signatures of respondent. Quoted hereunder are its findings and conclusion: Findings: Comparative examination of the specimens, under magnification and stereoscopic microscope, with the aid of photographic enlargements, reveals that there exist fundamental, significant similarities in writing characteristics and Identifying details between the questioned and the standard signatures ELMO S. ABAD, such as in: 1. 2. 3. 4. 5. Structural formation of the elements of the signatures Proportion characteristics Movement impulses Direction of strokes Manner of execution which is free, spontaneous and coordinated.

CONCLUSION: The questioned and the standard signatures ELMO S. ABAD were written by one and the same person. The aforesaid documentary and testimonial evidence, as well as the above report of the NBI, have clearly proved that respondent Abad is still practicing law despite the decision of this Court of March 28, 1983. Moreover, the Investigator, thru the Office of the Court Administrator, requested the Metro Manila courts to inform said Office if a certain Atty. Elmo Abad is appearing or has appeared in their courts. In response to said query, the Branch Clerk of Court, Branch XCIV, Quezon City sent to the undersigned certified xerox copies of the following that showed that Elmo Abad is appearing in Civil Case No. 36501. There was likewise received a certification dated May 9, 1984 from the Branch Clerk of Court of the Regional Trial Court, National Capital Judicial Region, Pasig, Branch CLIII, stating that Elmo Abad y Sanchez is appearing before said court as accused in Criminal Case No. 50651, *** entitled "People of the Philippines vs. Atty. Elmo Abad y Sanchez" for Qualified Theft (Carnapping).

The actuations of respondent as shown from the foregoing constitute contempt of court that should be punished more severely considering his temerity in still continuing the practice of law despite the decision of March 28, 1983. It is thus respectfully recommended that respondent be: a. imposed a fine of P2,000.00 payable within ten (10) days from receipt of this resolution or an imprisonment of twenty (20) days in case of non-payment thereof, with warning of drastic disciplinary action of imprisonment in case of any further practice of law after receipt of this resolution; and b. debarred from admission to the Philippine Bar until such time that the Court finds him fit to become such a member. It is further recommended that a circular be issued to all courts in the Philippines through the Office of the Court Administrator that respondent Elmo S. Abad has not been admitted to the Philippine Bar, and is therefore not authorized to practice law.

complaints brought by complainant against respondent, the former being a disgruntled loser in an injunction case in the SEC heard before respondent as Hearing Officer. In resolving this disbarment case, We must initially emphasize the degree of integrity and respectability attached to the law profession. There is no denying that the profession of an attorney is required after a long and laborious study. By years of patience, zeal and ability the attorney acquires a fixed means of support for himself and his family. This is not to say, however, that the emphasis is on the pecuniary value of this profession but rather on the social prestige and intellectual standing necessarily arising from and attached to the same by reason of the fact that every attorney is deemed an officer of the court. The importance of the dual aspects of the legal profession has been wisely put by Chief Justice Marshall of the United States Court when he said: On one hand, the profession of an Atty. is of great importance to an individual and the prosperity of his life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is extremely desirable that the respectability of the Bar should be maintained and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion ought to be exercised with great moderation and judgment, but it must be exercised. 2 The purpose of disbarment, therefore, is not meant as a punishment depriving him of a source of livelihood but is rather intended to protect the administration of justice by requiring that those who exercise this function should be competent, honorable and reliable in order that the courts and clients may rightly repose confidence in them. 3 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 must be established by clear, convincing, and satisfactory proof. Considering the serious consequences of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty. 4 This Court has also held in re Atty. Felizarda M. de Guzman 5 that to be made the basis of suspension or disbarment, the record must disclose as free from doubt a case which compels the exercise by this Court of its disciplinary powers. The dubious character of the act done as well as the motivation thereof must be clearly demonstrated. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved; and as an officer of the court, that he performed his duty in accordance with his oath. Examining the facts of this case, We hold that the allegations in the complaint do not warrant disbarment of the respondent. There is no evidence that the respondent has committed an act constituting deceit, immoral conduct, violation of his oath as a lawyer, wilful disobedience of any lawful order of the court, or corruptly and willfully appearing as an attorney to a part to a case without attorney to do so. 6 There is no violation of the Civil Service Rules and Regulations for his appearance as counsel for the defendant in the JDRC Case No. E-01978 was with authority given by the Associate Commisioner Of SEC, Julio A. Sulit, Jr. This Court also holds that under the facts complained of supported by the annexes and the answer of respondent likewise sustained by annexes attached thereto and the reply of the complainant, the accusation that respondent with malice and deliberate intent to evade the laws, assumed a different name, falsified his Identity and represented himself to be one "ATTY. MANUEL SISON" with offices at No. 605 EDSA, Cubao, Quezon City at the times that he will handle private cases, is not meritorious. Neither is the charge referred to is that pending the slantiated. The only case DRC Case No. E-01978 wherein respondent appeared as counsel for the defendant. It being an isolated case, the same does not constitute the practice of law, more so since respondent did not derive any pecuniary gain for his appearance because respondent and defendant therein were close

13. NORIEGA V. SISON This is a complaint for disbarment filed on June 3, 1981 by Herminio R. Noriega against Atty. Emmanuel R. Sison "admitted to the Bar on March 31, 1976) on the ground of malpractice through gross misrepresentation and falsification. Complainant Noriega alleges that respondent Sison is a regular and permanent employee of the Securities and Exchange Commission (SEC) as a Hearing Officer and as such, "is mandated to observe strictly the civil service rules and regulations, more particularly ... the prohibition of government employees to practice their professions"; that to circumvent the prohibition and to evade the law, respondent assumed a different name, falsified his Identity and represented himself to be one "Atty. Manuel Sison", with offices at No. 605 EDSA, Cubao, Quezon City, "at the times that he will handle private cases"; that "Manuel Sison" is not listed as a member of the Bar in the records of the Supreme Court; that under his said assumed name, respondent is representing one Juan Sacquing, the defendant in Case No. E01978 before the Juvenile and Domestic Relations Court of Manila, submitting pleadings therein signed by him respondent) under his assumed name, despite his full knowledge That "Manuel Sison" is not a member of the Bar and that his acts in doing so are illegal and unlawful. 1 Xerox copies of pertinent documents, pleadings, orders and notices are annexed to the complaint to support the material allegations therein. As requireD, respondent filed his Answer on August 20, 1981. He attached thereto a copy of the written authorization given by Julio A. Sulit, Jr., Associate Commissioner of the Securities and Exchange Commission, for him to appear as counsel of Juan Sacquing, a close family friend, in the Juvenile and Domestic Relations Court JDRC of Manila, Respondent alleges that he never held himself out to the public as a practicing lawyer; that he provided legal services to Sacquing in view of close family friendship and for free; that he never represented himself deliberately and intentionally as "Atty. Manuel Sison" in the Manila JDRC where, in the early stages of his appearance, he always signed the minutes as "Atty. Emmanuel R. Sison", and in one instance, he even made the necessary correction when the court staff wrote his name as Atty Manuel Sison"; that due to the "inept and careless work of the clerical staff of the JDRC", notices were sent to "Atty. Manuel Sison", at 605 EDSA, Cubao, Quezon City, where respondent's parents conduct a printing office and establishment, which notices were honored by the personnel of said office as respondent's family has called respondent by the nickname "Manuel"; that respondent did not feel any necessity to correct this error of the JDRC since he "could use his nickname 'Manuel' interchangeably with his original true name as a formal name, and its use was not done for a fraudulent purpose nor to misrepresent"; and, that this administrative case is only one of the numerous baseless

family friends. Such act of the respondent in going out of his way to aid as counsel to a close family friend should not be allowed to be used as an instrument of harrassment against respondent. The ruling in Zeta vs. Malinao (87 SCRA 303) wherein the respondent was dismissed from the service because being a government employee, he appeared as counsel in a private case, cannot be applied in the case at bar because the respondent in said Zeta case had appeared as counsel without permission from his superiors. Although the complaint alleges violation of civil service rules, the complainant however states that the basis of his complaint for disbarment is not the respondent's act of appearing as counsel but the unauthorized use of another name. 7 A perusal of the records however, reveals that whereas there is indeed a pleading entitled "Objection/Opposition to the 2 Formal Offer of Evidence" (Annex "C" to the Complaint for Disbarment, which is signed as "Manuel Sisori", counsel for defendant, 605 EDSA, Cubao, Quezon City, p. 7 of the Records), there is, however, no showing that respondent was thus motivated with bad faith or malice, for otherwise lie would not have corrected the spelling of his name when the court staff misspelled it in one of the minutes of the proceeding. Moreover, We find no reason or motive for respondent to conceal his true name when he have already given express authority by his superior to act as counsel for Juan Sacquing in the latter's case pending before the JDRC And while it may be True that subsequent errors were made in sending notices to him under the name "Atty. Manuel Sison, ' the errors were attributable to the JDRC clerical staff and not to the respondent. At most, this Court would only counsel the respondent to be more careful and cautious in signing his name so as to avoid unnecessary confusion as regards his Identity. At this point, We are constrained to examine the motives that prompted the complainant in filing the present case. An examination of the records reveals that the complainant was a defendant in the Securities and Exchange Commission (SEC) Case No. 1982 filed by the Integrated Livestock Dealers Inc. and Teofisto Jiao against seven (7) respondents including the complainant, seeking to oust the complainant and his codefendants from acting as officers of the Integrated Livestock Dealers lnc. then pending before respondent as Hearing Officer of the SEC, who after trial decided the case against the herein complainant. From this antecedent fact, there is cast a grave and serious doubt as to the true motivation of the complainant in filing the present case, considering further that other administrative charges were filed by the complainant against respondent herein before the SEC, JDRC and the Fiscal's office in Manila. We hold that complainant's repeated charges or accusations only indicate his resentment and bitterness in losing the SEC case and not with the honest and sincere desire and objectives "(1) to compel the attorney to deal fairly and honestly with his client;" (Strong vs. Munday 52 N.J. Eq. 833, 21 A. 611) and "(2) to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney." (Ex parte Brounsal Cowp 829; 83 Reprint; 6 C.J., p. 581; see In re de los Angeles Adm. Case No. 225, Sept. 31, 1959, cited in Moran, Comments on the Rules of Court, Vol. 6, p. 242). In the light of the foregoing, We find no reason or necessity to refer this complaint to the Solicitor General for investigation, report and recommendation. WHEREFORE, this case is hereby DISMISSED for lack of merit.

14. SAN LUIS VS. PINEDA This is a complaint for the punishment or the disbarment of Benjamin B. Pineda. Complainant alleged that a few months before December 1941, Benjamin B. Pineda had been expelled as member of the Bar; that notwithstanding such disbarment, Pineda continued to practice law; that in 1953 said Pineda was convicted, by final judgment, of the crime of robbery; that although President Magsaysay pardoned him conditionally, such pardon did not blot out the stain of moral misconduct. So, complainant prayed for action for contempt; or for a new disbarment, if after 1941, said Pineda had been reinstated to membership in the Bar. The matter was referred to the Solicitor General whose report filed later and in due course, recommended that respondent should only be warned not to practice law again. Such recommendation rested on his finding that Pineda continued to practice law in Jolo during the latter part of 1941 (i.e., after he had been disbarred in July 1940) but that no evidence proved legal practice by respondent after 1941. Our records do not show that Pineda has ever been re-admitted to the Bar. Now, considering that 1941 is too far away, we approve the recommendation; and the respondent is accordingly warned not to engage in the legal profession again, until he is regularly re-admitted thereto. Needless to say, practice of law by one who is disbarred constitutes contempt of court (U.S. vs. Ney, 8 Phil. 146; People vs. De Luna, 54 Off. Gaz. 6429.)

CANON 5
15. DE ROY V. CA This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time. At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212) Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior

negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case. WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

16. ABAD V. BLEZA Two administrative cases were filed against Judge Ildefonso Bleza of the Regional Trial Court, Branch XIX at Bacoor, Cavite, the first when he was contemplating optional retirement due to poor health and the second, after he had filed his application. Bleza's entitlement to disability retirement benefits depends on the resolution of these cases. On October 15, 1984, Lieutenant Colonel Gregorio Abad of the Philippine Constabulary charged Judge Bleza with rendering a decision with malice, ignorance of the law, grave abuse of discretion, and misconduct as a judge. The complaint is docketed as Adm. Case No. R-227-RTJ. After a cockfight held at the Imus, Cavite cockpit on July 19, 1981, complainant Abad and one Potenciano Ponce had a verbal tussle which culminated in Abad's being shot in the chest by Francisco Sabater, Jr., an alleged bodyguard of Ponce. Sabater, was charged with frustrated homicide and Potenciano Ponce with attempted homicide before the Regional Trial Court where the respondent presides. The prosecution alleged that during the aforementioned cockfight, Abad's gamecock lost to the one owned by Ponce. A remark by Ponce that complainant's cock was weak and lacked more care (mahina, kulang sa alaga) led to a heated argument between the two but they were pacified by certain local officials Abad then went to the cockpit carinderia to take a snack. Ponce followed him shouting, "Where is the Colonel, walang Colonel Colonel sa akin, papatayin ko yan, babarilin ko yan." As Ponce was approaching and holding a gun aimed at Abad, the latter grabbed a glass and hurled it at Ponce who was hit at the head, causing him to fall down in a sitting position. While thus seated, Ponce's gun was taken by his bodyguard, Francisco Sabater. Jr. Abad was then advised by a certain Captain Diaz to go home. Outside the cockpit gate, bodyguards of Ponce approached Abad and engaged him in a fistfight. At this juncture, Francisco Sabater, Jr., upon the order of Ponce, fired six (6) shots at Abad, the last one hitting him on the chest, the slug exiting at the back of his right shoulder. Abad was rushed to the Cavite Medical Center in Cavite City where he underwent an operation. On the 4th day he was transferred to the V. Luna Hospital at Quezon City where he was again operated on-to remove the slug imbedded in his back. He stayed in the hospital for 123 days. Sabater and Ponce presented a contrary version of the incident. Potenciano Ponce testified that on his way out of the cockpit, Abad uttered obscenities against him which he answered in kind. However, common friends like Mayor Jamir of Imus, Barangay Captain Enrique Diaz, and Cavite City Fiscal Gabriel pacified them. After cooling off, Ponce decided to go home but on his way out of the main gate of the cockpit, Abad, who was drinking beer at a carinderia, hurled invectives at him. Ponce then approached Abad to ask for an explanation. Abad hit him on the forehead with a bottle of beer causing him to fall down unconscious. Upon regaining consciousness, he was brought to the Cavite Medical Center. Ponce denied having aimed his gun at Abad, insisting that his gun was never taken out of its holster. He also contradicted the testimony of Abad that his permit to carry his firearm outside of his residence was no longer valid on July 19, 1981, stressing that his permit expired on November 18, 1981. Francisco Sabater, Jr. testified that he was at the cockpit that same afternoon as a bet taker or casador. He declared that at about 5:30 in that afternoon, he heard Abad utter the following words at Ponce: "Putang-ina mo, Pare pipilipitin ko ang leeg mo." Ponce reacted by approaching Abad who then took hold of a beer bottle from the table and hurled it at Ponce hitting him on the forehead. Ponce fell down. Thereupon, Francisco Sabater, Jr., took the gun of Ponce and as Abad refused to be pacified, he went outside the cockpit and fired the

gun five (5) times upwards to call the attention of the authorities. When Abad approached him, holding a broken bottle of beer and tried to stab him with it, he was forced in self-defense to fire the gun at Abad who was hit on the chest. On August 11, 1984, the respondent judge promulgated his decision, the dispositive portion of which reads as follows: WHEREFORE, in Criminal Case No. B-82-119, entitled People v. Pontenciano Ponce y Dayacap, for Attempted Homicide, said accused is hereby ACQUITTED for insuffiency of evidence, with cost de oficio. The case bond posted in his favor is ordered reimbursed to him by the Municipal Treasurer of Bacoor, Cavite. In Criminal Case No. B-82-57, entitled People v. Francisco Sabater, Jr. for Frustrated Homicide, said accused is hereby found guilty beyond reasonable doubt of the offense of Frustrated Homicide as defined and penalized under Art. 250 of the Revised Penal Code, with the mitigating circumstances of voluntary surrender, incomplete self-defense and without any intention to kill the victim, without any aggravating circumstances to offset the same and applying the Indeterminate Sentence Law as amended, he is sentenced to suffer imprisonment ranging from four (4) months and twenty (20) days of arresto mayor, as minimum, and to indemnify the victim the sum of P9,750.00 for medical and hospital expenses, without subsidiary imprisonment in case of insolvency and to pay the cost. It is this decision which forms the basis of Abad's complaint. On August 23, 1985, we referred this case to Associate Justice Santiago Kapunan of the then Intermediate Appellate Court for investigation and recommendation. The investigating Justice submitted the following recommendation: Coming to the question of respondent's culpability of the charges thus levelled against him on the basis of the facts, the arguments and the applicable provisions of law, it appears inescapable that respondent has not committed any wrongdoing to evoke disciplinary action in acquitting Ponce of attempted homicide. The ground for acquittal was insufficiency of evidence due to inconsistencies of the testimonies of the prosecution witnesses which he specifically pointed out in the decision. In addition, respondent found that Ponce never pulled the gun tucked at his waist during the incident, although prosecution witnesses testified otherwise. In the face of conflicting evidence, it is difficult to impute dishonesty and unfairness to respondent in arriving at his conclusion as to which side told the truth. And even if he made an error in his perception of the facts as he saw them, it cannot be justly presumed that he did it in bad faith or with malicious intent. For not every error or mistake of a judge in the performance of his duties makes him liable therefor. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable. (Dizon v. De Borja, G.R. Adm. Case No. 163-J, Jan. 28, 1971; Gamo v. Cruz, G.R. Adm. Matter No. 467-NJ, October 22, 1975; Rodrigo v. Quijano, G.R. Adm. Matter No. 731-MJ, Sept 9, 1977; Sec. of Justice v. Marcos, G.R. Adm. Matter No, 207-J April 22, 1977). For no one called upon to try the facts or interpret the law can be infallible in his judgment (Paulino v. Guevarra, G.R. Adm. Matter No. 584-CJ, March 30, 1977; Lopez v. Corpuz, G.R. Adm. Matter No. 425-MJ, Aug. 31, 1977). Indeed, assuming that Ponce really pulled out his gun and pointed it at Abad as he approached him, it would not be easy to fault respondent's reasoning that Ponce had ample opportunity to fire the gun at the victim if he had the intention to kill him. All what Ponce had to do was to press the trigger while Abad was about to hurl the bottle, or glass at him. On this point, Justice Luis B. Reyes' Revised Penal Code (p. 100, 1981 ed) has this to say: To constitute attempted homicide the person using a firearm must fire the same, with intent to kill at the offended party, without however inflicting a mortal wound on the latter. On the matter of the non-imposition by respondent of subsidiary imprisonment in case of insolvency, the decision did not mete out the penalty of fine on Sabater. There being none, subsidiary imprisonment could not have been imposed, pursuant to Art. 39 of the Revised Penal Code.

Respondent, however, was in error in appreciating as a mitigating circumstance "lack of intention to kill the victim" in fixing the penalty imposed on Sabater. xxx xxx xxx

The kind of weapon used by Sabater which was a .38 revolver and the location of the wound of Abad would undoubtedly give the presumption that Sabater had the intent to kill and which inevitably led respondent to convict him of the crime of frustrated. For in attempted/frustrated homicide the offender must have the intent to kill the victim. If there is no intent to kill on the part of the offender he is only liable for physical injuries. Therefore, the fact alone that respondent found Sabater guilty of the crime of frustrated homicide would prove that he had no doubt in his mind that Sabater had the intent to kill Abad. Respondent's appreciation as mitigating circumstance of lack of intent to kill in favor of Sabater is palpably out of place. Presumably, what respondent had in mind was to consider the mitigating circumstance of lack of intention to commit so grave a wrong as that committed under Art. 13 of the Revised Penal Code, which is different from lack of intention to kill. It is believed that while respondent committed an error thus described, the same was done without malice or deliberate intent to perpetrate an injustice. But in any case, there was negligence for which he should be reprimanded. ACCORDINGLY, the undersigned recommends that respondent be reprimanded, with warning that a similar transgression in the future will be more severely dealt with. The recommendation is well taken although the reprimand may be dispensed with considering the respondent's poor health and his impending retirement. As a matter of public policy, in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action, even though such acts are erroneous (Revita v. Rimando, 98 SCRA 619). However, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet it is highly imperative that they should be conversant with basic legal principles (Ubongon v. Mayo, 99 SCRA 30) They are called upon to exhibit more than just a cursory acquaintance with statutes (Aducayen v. Flores, 51 SCRA 78) and to keep themselves abreast of the latest laws, rulings and jurisprudence affecting their jurisdiction (Vasquez v. Malvar, 85 SCRA 10). In the case of Ajeno v. Inserto (71 SCRA 166, 172), this Court held that: ... Even in the remaining years of his stay in the judiciary, he should keep abreast with the changes in the law and with the latest decisions and precedents. Although a judge is nearing retirement, he should not relax in his study of the law and court decisions. Service in the judiciary means a continuous study and research on the law from beginning to end... The records fail to show malice, ill-will or even bias on the part of respondent judge. His decision pointed out, one by one, the glaring inconsistencies in the prosecution's evidence which led to the exculpation of defendant Ponce. In Pabalan v. Guevarra (74 SCRA 53, 58), this Court held that ... Even on the assumption that the judicial officer has erred in the appraisal of the evidence, he cannot be held administratively or civilly liable for his judicial action. A judicial officer cannot be called to account in a civil action for acts done by him in the exercise of his judicial function however erroneous... The second case docketed as Administrative Matter No. R561-RTJ was filed by Crisanto P. Cruz on December 11, 1985, against Bleza for knowingly rendering a wrong judgment. This case originated from the decision in an action for damages filed by one Pacifico Ocampo against complainant Cruz. Pacifico Ocampo alleged in the damage suit that on April 16, 1984, he filed with the Manila International Airport Authority (MIAA) an administrative complaint against a certain Ricardo F. Ortiz; that complainant Cruz persuaded Him to withdraw the complaint with a threat that if he would not withdraw the same, Cruz will cause

his dismissal from the Fire and Rescue Division of the MIAA; that because he did not accede to Cruz' demand, the latter filed against him an administrative case for inefficiency and serious neglect of duty, insubordination, absenteeism, and habitual tardiness; that because of that baseless complaint, he has suffered embarrassment, mental shock, anxieties, sleepless nights, and loss of appetite. In his answer, Cruz denied knowledge of the administrative case between Pacifico Ocampo and Ricardo Ortiz and averred that Ocampo's inefficiency, absenteeism, and tardiness are substantiated by company records. After trial, the respondent judge ruled in favor of Pacifico Ocampo. He ordered complainant Cruz to pay Ocampo the sum of P150,000.00 for moral damages, P30,000.00 for examplary damages and P5,000.00 for attorney's fees. The administrative complaint filed by Cruz alleged that the respondent judge disregarded the defendant's incontrovertible evidence and knowingly rendered a wrong judgment against him. In his comment, the respondent judge alleged that the decision, subject matter of this case, is pending appeal before the Intermediate Appellate Court. This allegation was not refuted by the complainant. Thus, any action we can take in this case would be premature. For only after the appellate court holds in a final judgment that a trial judge's alleged errors were committed deliberately and in bad faith may a charge of knowingly rendering an unjust decision be levelled against him. This is the pronouncement of this Court in several cases (See Garcia v. Alconcel, 111 SCRA 178; Sta. Maria v. Ubay, 87 SCRA 179; and Gahol v. Riodique, 64 SCRA 494). In the meantime, the presumption is that official duty was regularly performed. WHEREFORE, IN VIEW OF THE FOREGOING, the administrative cases are hereby, DISMISSED. The recommendation dated June 6, 1984 submitted by the Court Administrator that the respondent judge be retired from office due to hypertensive heart disease and congestive heart failure with cardiomegally (enlarged left ventricle) under Permanent Total Disability, as endorsed by Dr. Antonio Valero of this Court, is hereby APPROVED.

Furthermore, he claimed that the action was moot and academic, the amount of P1,804.00 having already been paid by him to the SSS. Lastly, he disclaimed liability on the ground that the acts complained of were not done by him in his capacity as a practicing lawyer but on account of his office as a prosecutor. On September 3, 1998, the Commission recommended that the respondent be reprimanded, with a warning that the commission of the same or similar offense would be dealt with more severely in the future. On November 5, 1998, the Board of Governors of the Integrated Bar of the Philippines adopted and approved its Commission's recommendation. This Court adopts the recommendation of the IBP and finds respondent guilty of professional misconduct. While there is no doubt that payment of the contested amount had been effected to the SSS on November 23, 1990, it is clear, however, that the same was made only after a complaint had been filed against respondent. Furthermore, the duties of a provincial prosecutor do not include receiving money from persons with official transactions with his office. This court has repeatedly admonished lawyers that a high sense of morality, honesty and fair dealing is expected and required of a member of the bar. Rule 1.01 of the Code of Professional Responsibility provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." It is glaringly clear that respondent's non-remittance for over one year of the funds coming from Encarnacion Pascual constitutes conduct in gross violation of the above canon. The belated payment of the same to the SSS does not excuse his misconduct. While Pascual may not strictly be considered a client of respondent, the rules relating to a lawyer's handling of funds of a client is applicable. In Daroy v. Legaspi, 1 this court held that "(t)he relation between an attorney and his client is highly fiduciary in nature... [thus] lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct." The failure of respondent to immediately remit the amount to the SSS gives rise to the presumption that he has misappropriated it for his own use. This is a gross violation of general morality as well as professional ethics; it impairs public confidence in the legal profession and deserves punishment. 2 Respondent's claim that he may not be held liable because he committed such acts, not in his capacity as a private lawyer, but as a prosecutor is unavailing. Canon 6 of the Code of Professional Responsibility provides: These canons shall apply to lawyers in government services in the discharge of their official tasks. As stated by the IBP Committee that drafted the Code, "a lawyer does not shed his professional obligations upon assuming public office. In fact, his public office should make him more sensitive to his professional obligations because a lawyer's disreputable conduct is more likely to be magnified in the public's eye. 3 Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office. 4 ACCORDINGLY, this Court REPRIMANDS respondent with a STERN WARNING that the commission of the same or similar offense will be dealt with more severely in the future. LET copies of this decision be spread in his records and copies be furnished the Department of Justice and the Office of the Bar Confidant. SO ORDERED.

CANON 6
17. PENTICOSTES VS. IBAEZ Sometime in 1989, Encarnacion Pascual, the sister-in-law of Atty. Prudencio S. Penticostes (herein complainant) was sued for non-remittance of SSS payments. The complaint was docketed as I.S. 89-353 and assigned to Prosecutor Diosdado S. Ibaez (herein respondent) for preliminary investigation. In the course of the investigation, Encarnacion Pascual gave P1,804.00 to respondent as payment of her Social Security System (SSS) contributions in arrears. Respondent, however, did not remit the amount to the system. The fact of nonpayment was certified to by the SSS on October 2, 1989. On November 16, 1990 or over a year later, complainant filed with the Regional Trial Court of Tarlac a complaint for professional misconduct against Ibaez due to the latter's failure to remit the SSS contributions of his sisterin-law. The complaint alleged that respondent's misappropriation of Encarnacion Pascual's SSS contributions amounted to a violation of his oath as a lawyer. Seven days later, or on November 23, 1990, respondent paid P1,804.00 to the SSS on behalf of Encarnacion Pascual. In the meantime, the case was referred to the Integrated Bar of the Philippines-Tarlac Chapter, the court observing that it had no competence to receive evidence on the matter. Upon receipt of the case, the Tarlac Chapter forwarded the same to the IBP's Commission on Bar Discipline. In his defense, respondent claimed that his act of accommodating Encarnacion Pascual's request to make payments to the SSS did not amount to professional misconduct but was rather an act of Christian charity.

18. MACOCO VS. DIAZ A complaint for malpractice filed by one Marcelino Macoco against Esteban B. Diaz, attorney-at-law, with license to practice in Philippine courts. In order to redeem a property belonging to his wife's father, which had been levied upon sold at public auction, complainant Marcelino Macoco deposited with the provincial sheriff of Ilocos Norte the sum of P380. As no redemption could be done, the money was returned by the sheriff to one Alberto Suguitan, then counsel for Marcelino Macoco. Suguitan used the money according to himself and failed to turn it over to Macoco; whereupon, the latter entrusted its collection to respondent herein, Esteban B. Diaz. It appears that Diaz succeeded in collecting P300 from Suguitan, but he also misappropriated this amount. Respondent admitted the misappropriation. He averred, however, that he had an agreement with Macoco for the payment of the money by him misappropriated; that when this agreement failed, he again entered into a similar arrangement with Hermenegildo Galapia, Lope Ragragola and Pedro Ragragola, who, as he attempted to prove, were the persons to whom the sum of P300 was really due, Macoco being merely a trustee thereof; and that in pursuance of this arrangement whereby he would pay the sum of P300, deducting therefrom 20 per cent for his attorney's fees, he had already made partial payments to said persons. Macoco, however, and Lope Ragragola denied this agreement. Whatever might have been the agreement and with whomsoever respondent might have entered it into, the undeniable fact remains that he misappropriated the money in breach of trust. This makes him unfit for the office of an attorney-at-law. And his being a deputy fiscal and not law practitioner at the time of the misappropriation, far from mitigating his guilt, aggravates it. Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office. Wherefore, respondent Esteban B. Diaz is hereby disbarred from the practice of law, and is hereby ordered to surrender his certificate to the clerk of court within five days from notice. This Solicitor General is hereby ordered to investigate the conduct of Attorney Alberto Suguitan and file later the corresponding report.

and its cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking maneuvers. When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing to it. After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the "full-astern" code. Before the right anchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. The vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of the incident (Exhibit "B"). Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E"). 3 On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 83-14958, 4 praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs of suit. 5 The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence? and (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the master of the vessel and the pilot under a compulsory pilotage? As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found no employer-employee relationship existing between herein private respondents Manila Pilots' Association (MPA, for short) and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve fund. 8 Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated their respective plaints to us via separate petitions for review on certiorari. In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred: 1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the matter;

19. FAR EASTERN V. CA These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification the judgment of the trial court holding the defendants-appellants therein solidarily liable for damages in favor of herein private respondent. There is no dispute about the facts as found by the appellate court, thus . . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4. Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel

2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened; 3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing evidence that the amount is clearly exorbitant and unreasonable; 4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and

court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability. 15 On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and bylaws which spell out the conditions of and govern their respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to fix details to implement the law, it is legally binding and has the same statutory force as any valid statute. 16 Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18 Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court. Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91 which provided for what has come to be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency. More particularly, the second paragraph of Section 2, Rule 42 provides: xxx xxx xxx

5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held liable. 9 Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to countermand or overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot. 10 Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure. 11 On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an administrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots. 13 As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown. 14 FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate

The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Emphasis ours.) For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42. The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150. G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as affiant: CERTIFICATION

AGAINST FORUM SHOPPING I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit: VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules of Civil Procedure I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: 1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case. 2. That I have caused the preparation of this Petition for Review on Certiorari.

Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would then have knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for dismissal thereof. Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executed said certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we find that no manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998. It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of court proceedings. As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. 26 He is an officer of the court exercising a privilege which is indispensable in the administration of justice. 27 Candidness, especially towards the courts, is essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before them. 28 Candor in all dealings is the very essence of honorable membership in the legal profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an officer of the court, a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice. 32 Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We cannot allow this state of things to pass judicial muster. In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia: 3. xxx Penalties. xxx xxx

3. That I have read the same and the allegations therein contained are true and correct based on the records of this case. 4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.) Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that xxx xxx xxx

3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987. If undersigned counsel will come to know of any other pending action or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court. 24 (Emphasis supplied.)

(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.

It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a particular case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition. Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency of another action or proceeding involving the same issues. It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to achieve such end and not to derail it. 34 Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the comment in behalf of PPA was finally filed. In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG indulged the Court with the long required comment on July 10, 1998. 35 This, despite the fact that said office was required to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was finally filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter of professional courtesy. 39 This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most certainly professionally unbecoming of the OSG. Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by having to prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal of the petition for failure otherwise. 40 Besides, in G.R. 130068, it prefaces its discussions thus

Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41 Similarly, in G.R. No. 130150, it states Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority." 42 We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of required pleadings. It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The OSG, by needlessly extending the pendency of these cases through its numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune. The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal force on lawyers in government service in the discharge of their official tasks. 43 These ethical duties are rendered even more exacting as to them because, as government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill 45 and to extend prompt, courteous and adequate service to the public. 46 Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well-worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance. The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85, 47 which provides that: Sec. 8. Compulsor Pilotage Service. For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. . . . In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in this wise: Sec. 11. Control of vessels and liability for damage. On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize damage. The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the Harbor Pilot on beard. In such event, any damage caused to a vessel or

to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against said Master. Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. The duties and responsibilities of the Harbor Pilot shall be as follows: xxx xxx xxx

The task, therefore, in these cases is to pinpoint who was negligent the master of the ship, the harbor pilot or both. A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels on the high seas. 53 However, the term "pilot" is more generally understood as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. 54 Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing anchoring, towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is compulsory. 55 It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the dangers of navigation. 56 In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District, viz. PARAGRAPH I. Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these regulations. Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master. 57 A pilot 57 should have a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58 In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great detail the duties of a pilot: . . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is of little use to him.

f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder. Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of pilots: Par. XXXIX. A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he leaves it anchored free from shoal: Provided, That his responsibility shall cease at the moment the master neglects or refuses to carry out his instructions. xxx xxx xxx

Par. XLIV. Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master of such vessels. I. G.R. No. 130068

Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for damages caused to the pier. 48 It likewise holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49 We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the circumstances admit and show that in each, they did all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. 51 Logic and experience support this presumption: The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is nor sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur. 52

He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made,of logs or snags, or other objects newly presented, against which his vessel might be injured. xxx xxx xxx

command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony." 61 An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another. 62 Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability. 63 Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. 64 Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence. 65 Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. 66 We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the performance of his duties: xxx xxx xxx

It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolute masters, the high compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the standard too high. Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino: Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released immediately or as soon as you have given the order. Do you remember having srated that? A Q A Yes, your Honor. And you gave this order to the captain of the vessel? Yes, your Honor.

Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you gave the order, the incident would not have happened. Is that correct? A Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who are in charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I presumed the anchor was not dropped on time. Q A xxx So, you are not sure whether it was really dropped on time or not? I am not sure, your Honor. xxx xxx

Q You are not even sure what could have caused the incident. What factor could have caused the incident? A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause of the incident, your Honor. 60 It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course, Captain Gavino makes reference to a commotion among the crew members which supposedly caused the delay in the execution of the

. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavino must have realized that the anchor did not hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side bur the momentum of the vessel was not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that the incident was caused by "force majeure" is barren of factual basis. xxx xxx xxx

The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the required examination and training conducted then by the Bureau of Custom, under Customs

Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 6385, Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67 This affirms the findings of the trial court regarding Capt. Gavino's negligence: This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the port and the distance he could keep between the vessel and port in order to berth safely. 68 The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence constitutes negligence. While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and supersedes the master for the time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71 The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready to go at the pilot's order. 72 A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver: Q Will you please tell us whether you have the right to intervene in docking of your ship in the harbor?

xxx

xxx

xxx

Atty. Del Rosario (to the witness) Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking? A Yes sir, our ship touched ihe pier and the pier was damaged.

Court (to the witness) Q pier? A Q A xxx When you said touched the pier, are you leading the court to understand that your ship bumped the

I believe that my vessel only touched the pier but the impact was very weak. Do you know whether the pier was damaged as a result of that slight or weak impact? Yes sir, after the pier was damaged. xxx xxx

Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the pier? A Court: Q A Not the actuation that conform to the safety maneuver of the ship to the harbor? No sir, it was a usual docking. You mean the action of Capt. Gavino or his condition?

Q By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of the ship? A Yes sir, during the initial period of the docking, there was nothing unusual that happened.

Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened? A Q timely? None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel. You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was nor

A No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the vessel and to the pier. Q A Q A Did you ever intervene during the time that your ship was being docked by Capt. Gavino? No sir, I did not intervene at the time when the pilot was docking my ship. Up to the time it was actually docked at the pier, is that correct? No sir, I did not intervene up to the very moment when the vessel was docked.

A I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not have been an incident. Q So you could not precisely tell the court that the dropping of the anchor was timery because you are not well aware of the seabed, is that correct?

A A xxx Yes sir, that is right. Q xxx xxx A Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel could not travel? A It is difficult for me to say definitely. I believe that the anchor did not hold the ship. Q A Q A A Q A Q A Q pilot? A Q A Yes sir, it is possible.

What is the meaning of panel? All indications necessary for men on the bridge to be informed of the movements of the ship? That is right. And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could also hear? That is right. Now, you said that when the command to lower the anchor was given, it was obeyed, is that right? This command was executed by the third mate and boatswain.

Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving?

Court (to the witness) What is possible? I think, the 2 shackles were not enough to hold the vessel. Did you know that the 2 shackles were dropped? Yes sir, I knew that. If you knew that the shackles were not enough to hold the ship, did you not make any protest to the A No sir, after the incident, that was my assumption. Did you come to know later whether that presumption is correct? I still don't know the ground in the harbor or the depths. A Q So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship? A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be more aware as to the depths of the harbor and the ground and I was confident in his actions. xxx xxx xxx xxx That is right, sir. xxx xxx No sir, I did not observe. Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent danger, is that correct? A That is right, I did say that.

Q In your observation before the incident actually happened, did you observe whether or not the ship, before the actual incident, the ship was placed in imminent danger?

Q By that answer, are you leading the court to understand that because you did not intervene and because you believed that it was your duty to intervene when the vessel is placed in imminent danger to which you did not observe any imminent danger thereof, you have not intervened in any manner to the command of the pilot?

Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel, whose command will prevail, in case of imminent danger to the vessel? A I did nor consider the situation as having an imminent danger. I believed that the vessel will dock alongside the pier. Q mean? A You want us to understand that you did not see an imminent danger to your ship, is that what you

Solicitor Abad (to the witness) Q Now, you were standing with the pilot on the bridge of the vessel before the inicident happened, were you not? A Q A Q Yes sir, all the time, I was standing with the pilot. Q And so whatever the pilot saw, you could also see from that point of view? A That is right. Solicitor Abad (to the witness) Whatever the piler can read from the panel of the bridge, you also could read, is that correct? Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not? Yes sir, I did not intervene because I believed that the command of the pilot to be correct. Because of that, did you ever intervene in the command of the pilot?

Yes sir, up to the very last moment, I believed that there was no imminent danger.

A Q is it not? A

Yes sir, that is right. Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo,

Q And after a few moments when the anchor should have taken hold the seabed bur not done (sic), as you expected, you already were alerted that there was danger to the ship, is that correct? A Q Yes sir, I was alerted but there was no danger. And you were alerted that somebody was wrong? Yes sir, I was alerted. And this alert vou assumed was the ordinary alertness that you have for normal docking? Yes sir, I mean that it was usual condition of any man in time of docking to be alert. And that is the same alertness when the anchor did not hold onto the ground, is that correct? Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.

That is right. A

Q So that, I assume that you were watching Capt. Gavino very closely at the time he was making his commands? A Q vessel? A Q A Q A Q A I was close to him, I was hearing his command and being executed. And that you were also alert for any possible mistakes he might commit in the maneuvering of the

Q A Q A

Yes sir, that is right. But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made? No sir. Atty. Del Rosario: So that you were in full accord with all of Capt. Gavino's orders? May I ask that the question . . . Yes sir. Solicitor Abad: Because, otherwise, you would have issued order that would supersede his own order? Never mind, I will reform the question. In that case, I should t,ke him away from his command or remove the command from him. xxx xxx xxx Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore agreed with him in his failure to take necessary precaution against the eventuality that the anchor will not hold as expected?

Court (to the witness) Solicitor Abad (to the witness) Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions under the sea, is that correct? A xxx Yes sir, that is right. Q xxx xxx A Solicitor Abad (to the witness) Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation: Q And so after the anchors were ordered dropped and they did not take hold of the seabed, you were alerted that there was danger already on hand? A No sir, there was no imminent danger to the vessel. A Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not, there was no danger to the ship? A Yes sir, because the anchor dragged on the ground later. Q When a pilot is on board a vessel, it is the piler's command which should be followed at that moment until the vessel is, or goes to port or reaches port? No, at that time, the vessel was not in imminent, danger, sir. 74 Q Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger. Yes sir, that is my opinion. 73 For the main reason that the anchor of the vessel did not hold the ground as expected? Q A Is it not a fact that the vessel bumped the pier? That is right, it bumped the pier.

This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation:

A pilot. Q

Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the

In what way?

For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space, it is undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by the pilot, and even maneuver the vessel himself, in case of imminent danger to the vessel and the port. In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering procedures he did not notice anything was going wrong, and even observed that the order given to drop the anchor was done at the proper time. He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because.there was still time to drop a second anchor. Under normal circumstances, the abovementioned facts would have caused the master of a vessel to take charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation. xxx xxx xxx

A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to countermand the pilot's order. Q But insofar as competence, efficiency and functional knowledee of the seabed which are vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent? A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the Captain, the Master of the vessel. Q In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port? A Court: May proceed. Atty. Catris: In fact, the Master of the vessel testified here that he was all along in conformity with the orders you, gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your command for the safety docking of the MV Pavlodar? Atty. del Rosario: Already answered, he already said yes sir. Court: Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely to the port. Atty. Catris: But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of the docking that the MV Pavlodar was in imminent danger of bumping the pier? A When we were about more than one thousand meters from the pier, I think, the anchor was not holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the vessel in order to swing the bow away from the pier and at the same time, I ordered for a full astern of the engine. 75 These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence. The findings of the trial court on this aspect is noteworthy: No, your Honor.

It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss responsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures and was privy to every move the latter made, as well as the vessel's response to each of the commands. His choice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert he continued to relinquish control of the vessel to Gavino, shows indubitably that he was not performing his duties with the diligence required of him and therefore may be charged with negligence along with defend;int Gavino. 76 As correctly affirmed by the Court of Appeals We are in full accord with the findings and disquisitions of the Court a quo. In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-officers of the vessel concerned. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in the seabed. The momentum of the vessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel, although a little bit arrested, continued (sic) the vessel going straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the vessel to move "fullastern" and to drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even as Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was already about twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern'' maneuver momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent. xxx xxx xxx

The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee. 77

We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent. As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his discretion. In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that: Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. . . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every, obligation to attend to the safety of the vessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon such being taken. 79 (Italics for emphasis.) In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled: The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in discharge of his functions. . . . It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid endangering a vessel situated as the City of Canton was and persons or property thereon. A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timelt admonition to the pilot proximately contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.) Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local governmental regulations. His failure amounted to negligence

and renders the respondent liable." 81 (Emphasis supplied.) Though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master. 82 In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes that the pilot is incompetent or physically incapable, then it is the dury of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance commensurate with the circumstances. 84 Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial court, especially as this is affirmed by the Court of Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino. In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by the default of others, 89 or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners are liable. Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of responsibility of the owners. 90 Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act. 91 In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. 92 But the liability of the ship in rem does not release the pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in charge. 94

By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and remain good and relevant case law to this day. City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court could not but then rule that The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the strait in question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of the damages, he is liable for such damages as usually and naturally flow therefrom. ... . . . (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his control and management. . . . . Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channel and the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see chat he can be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the instant petitions. It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. 100 There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for

the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102 As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations: Q So that the cost of the two additional piles as well as the (two) square meters is already included in this P1,300,999.77. A Q A Q A Yes sir, everything. It is (the) final cost already. For the eight piles. Including the reduced areas and other reductions. (A)nd the two square meters. Yes sir.

Q In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the corresponding two piles. A The area was corresponding, was increased by almost two in the actual payment. That was why the contract was decreased, the real amount was P1,124,627.40 and the final one is P1,300,999.77. Q A Q A Yes, but that P1,300,999.77 included the additional two new posts. It was increased. Why was it increased? The original was 48 and the actual was 46.

Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that took almost two years? A Yes sir.

Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the damage portion was not repaired? A Q A xxx I don't think so because that area was at once marked and no vehicles can park, it was closed. Even if or even natural elements cannot affect the damage? Cannot, sir. xxx xxx

Q You said in the cross-examination that there were six piles damaged by the accident, but that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the original number?

A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same point. You have to redesign the driving of the piles. We cannot drive the piles at the same point where the piles are broken or damaged or pulled out. We have to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8 plies. Q Why not, why could you not drive the same number of piles and on the same spot?

PAR. XXVII. In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions of its members while rendered in compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot. PAR. XXVIII. A pilots' association shall not be liable under these regulations for damage to any vessel, or other property, resulting from acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood that if the association is held liable for an amount greater than the amount above-stated, the excess shall be paid by the personal funds of the member concerned. PAR. XXXI. If a payment is made from the reserve fund of an association on account of damages caused by a member thereof, and he shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of his dividends shall be retained each month until the full amount has been returned to the reserve fund. PAR. XXXIV. Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively, from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties. Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicable maritime regulation, state: Art. IV Sec. 17. Pilots' Association The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. These By-Laws shall be submitted not later than one (1) month after the organization of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall likewise be submitted for approval. Sec. 25. Indemnity Insurance and Reserve Fund

A The original location was already disturbed. We cannot get required bearing capacity. The area is already disturbed. Q Nonetheless, if you drove the original number of piles, six, on different places, would not that have sustained the same load? A It will not suffice, sir. 103

We quote the findings of the lower court with approval. With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary course of events the ramming of the dock would not have occurred if proper care was used. Secondly, the various estimates and plans justify the cost of the port construction price. The new structure constructed not only replaced the damaged one but was built of stronger materials to forestall the possibility of any similar accidents in the future. The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages caused by the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy liable to pay this amount to plaintiff. 104 The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair and rehabilitation of the damaged section of the pier. 105 Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural and proximate damages caused to persons or property by reason of her negligent management or navigation. 106 FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international standards. There was, therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim. II. G.R. No. 130150

a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each member to cover in whole or in part any liability arising from any accident resulting in damage to vessel(s), port facilities and other properties and/or injury to persons or death which any member may have caused in the course of his performance of pilotage duties. . . . . b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for any part of the liability referred to in the immediately preceding paragraph which is left unsatisfied by the insurance proceeds, in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be considered part of the capital of the Association nor charged as an expense thereof. 2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment of damages referred to above incurred in the actual performance of pilots' duties and the excess shall be paid from the personal funds of the member concerned. xxx xxx xxx

This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with its member pilot. Capt. Gavino, in the absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA and Capt. Gavino. The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:

5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at fault, he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) of his dividend shall be retained each month until the full amount has been returned to the reserve fund. Thereafter, the pilot involved shall be entitled to his full dividend. 6) When the reimbursement has been completed as prescribed in the preceding paragraph, the ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance with paragraph (4) hereof shall be returned to them. c) Liability of Pilots' Association Nothing in these regulations shall relieve any Pilots' Association or members thereof, individually or collectively, from any civil, administrative and/or criminal responsibility for damages to life or property resulting from the individual acts of its members as well as those of the Association's employees and crew in the performance of their duties. The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino, correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65: The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy, did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employer-employee relationship to exist, the confluence of the following elements must be established: (1) selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect to the means and method by which the work is to be performed (Ruga versus NLRC, 181 SCRA 266). xxx xxx xxx

No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljght of existing positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino which precludes the application of Article 2180 of the Civil Code. True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarily liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault. Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 1565, which as an implementing rule has the force and effect of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to wit: . . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature. 112 MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault by the member concerned. This is clarified by the Solicitor General: Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75 %) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots' association to answer (for) whatever liability arising from the tortious act of its members. And even if the association is held liable for an amount greater than the reserve fund, the association may not resist the liability by claiming to be liable only up to seventy-five per centum (75 %) of the reserve fund because in such instance it has the right to be reimbursed by the offending member pilot for the excess. WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto. Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more severely. The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently. The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly administration of justice. Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant.

The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA. 107 There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in American law, as follows: The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer of their members and exercise no control over them once they take the helm of the vessel. They are also not partnerships because the members do not function as agents for the association or for each other. Pilots' associations are also not liable for negligently assuring the competence of their members because as professional associations they made no guarantee of the professional conduct of their members to the general public. 109 Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held not liable for damages caused by the default of a member pilot. 110 Whether or not the members of a pilots' association are in legal effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots' association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government regulations. 111

20. PIMENTEL V. LLORENTE This is a complaint for disbarment against respondents Antonio M. Llorente and Ligaya P. Salayon for gross misconduct, serious breach of trust, and violation of the lawyer's oath in connection with the discharge of their duties as members of the Pasig City Board of Canvassers in the May 8, 1995 elections. Salayon, then election officer of the Commission on Elections (COMELEC), was designated chairman of said Board, while Llorente, who was then City Prosecutor of Pasig City, served as its ex oficio vice-chairman as provided by law.1 Complainant, now a senator, was also a candidate for the Senate in that election. Complainant alleges that, in violation of R.A. No. 6646, 27(b),2 respondents tampered with the votes received by him, with the result that, as shown in the Statements of Votes (SoVs) and Certificate of Canvass (CoC) pertaining to 1,263 precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna Dominique Coseteng, Gregorio Honasan, Marcelo Fernan, Ramon Mitra, and Rodolfo Biazon were credited with votes which were above the number of votes they actually received while, on the other hand, petitioner's votes were reduced; (2) in 101 precincts, Enrile's votes were in excess of the total number of voters who actually voted therein; and (3) the votes from 22 precincts were twice recorded in 18 SoVs. Complainant maintains that, by signing the SoVs and CoC despite respondents' knowledge that some of the entries therein were false, the latter committed a serious breach of public trust and of their lawyers' oath. Respondents denied the allegations against them. They alleged that the preparation of the SoVs was made by the 12 canvassing committees which the Board had constituted to assist in the canvassing. They claimed that the errors pointed out by complainant could be attributed to honest mistake, oversight, and/or fatigue. In his Consolidated Reply, complainant counters that respondents should be held responsible for the illegal padding of the votes considering the nature and extent of the irregularities and the fact that the canvassing of the election returns was done under their control and supervision. On December 4, 1998, the Integrated Bar of the Philippines, to which this matter had been referred pursuant to Rule 139-B, 13, in relation to 20 of the Rules of Court, recommended the dismissal of the complaint for lack of merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his motion was denied in a resolution of the IBP Board of Governors dated April 22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B, 12(c). It appears that complainant likewise filed criminal charges against respondents before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646, 27(b). In its resolution dated January 8, 1998, the COMELEC dismissed complainant's charges for insufficiency of evidence. However, on a petition for certiorari filed by complainant,4 this Court set aside the resolution and directed the COMELEC to file appropriate criminal charges against respondents. Reconsideration was denied on August 15, 2000. Considering the foregoing facts, we hold that respondents are guilty of misconduct. First. Respondent Llorente seeks the dismissal of the present petition on the ground that it was filed late. He contends that a motion for reconsideration is a prohibited pleading under Rule 139-B, 12(c)5 and, therefore, the filing of such motion before the IBP Board of Governors did not toll the running of the period of appeal. Respondent further contends that, assuming such motion can be filed, petitioner nevertheless failed to indicate the date of his receipt of the April 22, 1999 resolution of the IBP denying his motion for reconsideration so that it cannot be ascertained whether his petition was filed within the 15-day period under Rule 139-B, 12(c). The contention has no merit. The question of whether a motion for reconsideration is a prohibited pleading or not under Rule 139-B, 12(c) has been settled in Halimao v. Villanueva,6 in which this Court held: Although Rule 139-B, 12(C) makes no mention of a motion for reconsideration, nothing in its text or in its history suggests that such motion is prohibited. It may therefore be filed within 15 days from notice to a party.

Indeed, the filing of such motion should be encouraged before resort is made to this Court as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of the evidenced.7 On the question whether petitioner's present petition was filed within the 15-day period provided under Rule 139-B, 12(c), although the records show that it was filed on June 4, 1999, respondent has not shown when petitioner received a copy of the resolution of the IBP Board of Governors denying his motion for reconsideration. It would appear, however, that the petition was filed on time because a copy of the resolution personally served on the Office of the Bar Confidant of this Court was received by it on May 18, 1999. Since copies of IBP resolutions are sent to the parties by mail, it is possible that the copy sent to petitioner was received by him later than May 18, 1999. Hence, it may be assumed that his present petition was filed within 15 days from his receipt of the IBP resolution. In any event, the burden was on respondent, as the moving party, to show that the petition in this case was filed beyond the 15-day period for filing it. Even assuming that petitioner received the IBP resolution in question on May 18, 1999, i.e., on the same date a copy of the same was received by the Office of the Bar Confidant, the delay would only be two days.8 The delay may be overlooked, considering the merit of this case. Disbarment proceedings are undertaken solely for public welfare. The sole question for determination is whether a member of the bar is fit to be allowed the privileges as such or not. The complainant or the person who called the attention of the Court to the attorney's alleged misconduct is in no sense a party, and generally has no interest in the outcome except as all good citizens may have in the proper administration of justice.9 For this reason, laws dealing with double jeopardy10 or prescription11 or with procedure like verification of pleadings12 and prejudicial questions13 have no application to disbarment proceedings. Even in ordinary civil actions, the period for perfecting appeals is relaxed in the interest of justice and equity where the appealed case is clearly meritorious. Thus, we have given due course to appeals even though filed six,14 four,15 and three16 days late. In this case, the petition is clearly meritorious. Second. The IBP recommends the dismissal of petitioner's complaint on the basis of the following: (1) respondents had no involvement in the tabulation of the election returns, because when the Statements of Votes (SoVs) were given to them, such had already been accomplished and only needed their respective signatures; (2) the canvassing was done in the presence of watchers, representatives of the political parties, the media, and the general public so that respondents would not have risked the commission of any irregularity; and (3) the acts dealt with in R.A. No. 6646, 27(b) are mala in se and not mala prohibita, and petitioner failed to establish criminal intent on the part of respondents.17 The recommendation is unacceptable. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability.18 As long as the evidence presented by complainant or that taken judicial notice of by the Court1 9 is more convincing and worthy of belief than that which is offered in opposition thereto,20 the imposition of disciplinary sanction is justified.. In this case, respondents do not dispute the fact that massive irregularities attended the canvassing of the Pasig City election returns. The only explanation they could offer for such irregularities is that the same could be due to honest mistake, human error, and/or fatigue on the part of the members of the canvassing committees who prepared the SoVs. This is the same allegation made in Pimentel v. Commission on Elections.21 In rejecting this allegation and ordering respondents prosecuted for violation of R.A. No. 6646, 27(b), this Court said: There is a limit, we believe, to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. The sheer magnitude of she error, not only in the total number of votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not tally with that reflected in the election returns, but also in the total number of votes credited for senatorial candidate Enrile which

exceeded the total number of voters who actually voted in those precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.22 Indeed, what is involved here is not just a case of mathematical error in the tabulation of votes per precinct as reflected in the election returns and the subsequent entry of the erroneous figures in one or two SoVs23 but a systematic scheme to pad the votes of certain senatorial candidates at the expense of petitioner in complete disregard of the tabulation in the election returns. A cursory look at the evidence submitted by petitioner reveals that, in at least 24 SoVs involving 101 precincts, the votes for candidate Enrile exceeded the number of voters who actually voted in the said precincts and, in 18 SoVs, returns from 22 precincts were-tabulated twice. In addition, as the Court noted in Pimentel, the total number of votes credited to each of the seven senatorial candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs.24 Despite the fact that these discrepancies, especially the double recording of the returns from 22 precincts and the variation in the tabulation of votes as reflected in the SoVs and CoC, were apparent on the face of these documents and that the variation involves substantial number of votes, respondents nevertheless certified the SoVs as true and correct. Their acts constitute misconduct. Respondent Llorente's contention that he merely certified the genuineness and due execution of the SoVs but not their correctness is belied by the certification which reads: WE HEREBY CERTIFY that the foregoing Statement of Votes by . . . [p]recinct is true and correct. IN WITNESS WHEREOF, we sign these presents at the City/Municipality of ___________ Province of ________ this _______ day of May, 1995. (Emphasis added) Nor does the fact that the canvassing was open to the public and observed by numerous individuals preclude the commission of acts for which respondents are liable. The fact is that only they had access to the SoVs and CoC and thus had the opportunity to compare them and detect the discrepancies therein. Now, a lawyer who holds a government position may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official.25 However, if the misconduct also constitutes a violation of the Code of Professional Responsibility or the lawyer's oath or is of such character as to affect his qualification as a lawyer or shows moral delinquency on his part, such individual may be disciplined as a member of the bar for such misconduct.26 Here, by certifying as true and correct the SoVs in question, respondents committed a breach of Rule 1.01 of the Code which stipulates that a lawyer shall not engage in "unlawful, dishonest, immoral or deceitful conduct." By express provision of Canon 6, this is made applicable to lawyers in the government service. In addition, they likewise violated their oath of office as lawyers to "do no falsehood." Nowhere is the-need for lawyers to observe honesty both in their private and in their public dealings better expressed in Sabayle v. Tandayag27 in which this Court said: There is a strong public interest involved in requiring lawyers to behave at all times in a manner consistent with truth and honor it is important that the common caricature that lawyers by and large do not feel compelled to speak the truth and to act honestly, should not become a common reality . . .28 It may be added that, as lawyers in the government service, respondents were under greater obligation to observe this basic tenet of the profession because a public office is a public trust. Third. Respondents' participation in the irregularities herein reflects on the legal profession, in general, and on lawyers in government in particular. Such conduct in the performance of their official duties, involving no less than the ascertainment of the popular will as expressed through the ballot, would have merited for them suspension were it not for the fact that this is their first administrative transgression and, in the case of Salayon,

after a long public service.29 Under the circumstances, a penalty of fine in the amount of P10,000.00 for each of the respondents should be sufficient. WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P. Salayon GUILTY of misconduct and imposes on each of them a FINE in the amount of P10,000.00 with a WARNING that commission of similar acts will be dealt with more severely.1wphi1.nt SO ORDERED.

21. REPUBLIC V. CA (1998) his is a petition for review on certiorari of the decision 1 of the Court of Appeals in CA-G.R. SP No. 43524. The facts are as follows: On February 10, 1992, private respondent Tetro Enterprises, Inc. filed a complaint, denominated "for recovery of possession and damages," against petitioner, the Republic of the Philippines, represented by the Regional Director of Region III of the Department of Public Works and Highways (DPWH). The complaint was assigned to Branch 41 of the Regional Trial Court (RTC) of San Fernando, Pampanga, presided over by respondent Judge Pedro M. Sunga, Jr. 2 Tetro Enterprises alleged that it was the owner of a piece of land, consisting of 12,643 square meters, in San Fernando, Pampanga, registered in its name under Transfer Certificate of Title No. 283205-R; that the land had a "probable value" of P252,569.00; that sometime in 1974, petitioner, without having acquired the property through expropriation or negotiated sale, constructed a road thereon; and that, despite demands by private respondent, petitioner refused to return the land taken and to pay the rent for the use of the same since 1974. Private respondent, therefore, prayed that petitioner be ordered to return the land to it in its "original state" and to close the road constructed thereon; and to pay actual damages in the amount of P100,000.00, rentals for the use of the land at P200.00 a month, in the total amount of P40,800.00, and attorney's fees. Petitioner filed an answer 3 in due time, alleging that private respondent had no cause of action because it had not exhausted administrative remedies before filing its complaint and that the case was actually a suit against the State without its consent. Petitioner alleged that it constructed part of the Olongapo-Gapan Road on the subject property with the knowledge and consent of private respondent which in fact entered into negotiations regarding the price of the land; that petitioner was willing to pay the fair market value of the property at the time of taking, plus interest, but, instead of accepting its offer, private respondent filed the present complaint; and that the return of the land to private respondent was no longer feasible. Upon agreement of the parties, the trial court issued an order, dated November 25, 1994, 4 creating a board of commissioners "to determine the actual value of the property subject of this case which shall be a basis for an amicable settlement by the parties or the decision to be rendered by this Court, as the case may be." The board was composed of Eller V. Garcia, a real estate broker, representing private respondent Tetro Enterprises, Abraham Sison, Provincial Assessor of Pampanga, representing petitioner, and Juan P. Limpin, Jr., clerk of court of the RTC, as chairman. On December 8, 1995, the board rendered a report 5 recommending that the price of the subject property be fixed between P4,000.00 and P6,000.00 per square meter as "the just and reasonable price" to be paid to private respondent. The board found that while the lot was, at the time of taking, devoted to sugarcane, it had become highly commercial since the construction of the Olongapo-Gapan Road resulting in the opening of residential subdivisions and the construction of commercial buildings. Based on the report of the board, the RTC rendered a decision 6 on September 2, 1996 fixing the price of the land at P6,000.00 per square meter or the total amount of P75,858,000.00 for 12,643 square meters. The RTC noted that a lot within the vicinity of the land in question had been sold at P10,000.00 per square meter and

that, as Provincial Assessor Abraham Sison said, the government stood to benefit from the acquisition of the property because it was "of great use." A copy of the decision was received by petitioner's counsel, the Office of the Solicitor General, on September 9, 1996. On September 17, 1996, the OSG moved for a reconsideration, contending that the RTC erred in fixing the compensation for the taking of the land on the basis of its current market value of P6,000.00 per square meter when the basis should be its price at the time of taking by the government in 1974. No proof of service of a copy of the motion was, however, attached to the motion as required by Rule 15, 6. 7 In its order 8 dated October 3, 1996, the RTC denied petitioner's motion, finding it to be without merit and, in addition, to be a "mere scrap of paper" for having been filed in violation of Rule 15, 6 of the Rules of Court. A copy of the order was received by the OSG on December 6, 1996. Meanwhile, on December 3, 1996, private respondent Tetro Enterprises moved for the execution of the decision in its favor. In its order dated December 23, 1996, the RTC granted the motion. On December 13, 1996, petitioner filed a notice of appeal, but the notice was denied by the court on January 7, 1997 on the ground that its decision of September 2, 1996 had become final and executory. Petitioner filed a petition for certiorari in the Court of Appeals to set aside the orders of October 3, 1996, December 23, 1996, and January 7, 1997 of the RTC. Its petition was, however, dismissed by the Court of Appeals in its decision of June 9, 1997. In its resolution dated August 6, 1997, 9 the appellate court denied reconsideration of its decision. The Court of Appeals agreed with the RTC that because of petitioner's failure to attach proof of service of its motion for reconsideration, the motion was nothing but a mere scrap of paper which did not toll the period of appeal, with the result that the trial court's decision became final. Consequently, the trial court correctly denied petitioner's notice of appeal. Petitioner submitted to the Court of Appeals a registry return card showing that private respondent's counsel had received a copy of its motion for reconsideration on September 24, 1996, but the Court of Appeals considered this to be of "little moment" for the reason that the proof of service should have been presented to the RTC and not to the appellate court for the first time. Concluding, the Court of Appeals held: [I]n a very real sense, petitioner's present predicament is of its own making. Consider: counsel for the petitioner did not a) append the registry return receipt and the affidavit of service, if one has been prepared, to petitioner's motion for reconsideration; b) at any time apprise the lower court of the sending, if this be the case, of a copy of the motion for reconsideration to Atty. Cruz-Ducut; c) appear at the hearing on the date he set for the consideration of the motion for reconsideration; d) oppose, despite notice, private respondent's motion for execution; and e) seek reconsideration of the order disapproving petitioner's notice of appeal, knowing pretty well that a special civil action for certiorari is available only when there is no other plain, speedy and adequate remedy in the ordinary course of law. Petitioner thus cannot lay blame on respondent judge's doorstep for the way the latter disposed of the incidents obtaining in this case. Hence, this petition. Petitioner contends that THE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT RIGIDLY AND STRICTLY APPLIED THE RULES OF PROCEDURE AGAINST HEREIN PETITIONER WHICH, IF NOT CORRECTED, WOULD RESULT IN A MISCARRIAGE OF JUSTICE TO THE GREAT AND IRREPARABLE DAMAGE TO THE GOVERNMENT. Petitioner argues that it had substantially complied with the requirement of notice to the adverse party as shown by the registry return card which it submitted to the Court of Appeals. This card shows that a copy of

petitioner's motion for reconsideration was sent by registered mail to private respondent's counsel, Atty. Zenaida G. Cruz-Ducut, on September 18, 1996. Petitioner further contends that it has a meritorious defense because the value of the land taken should be based not on its current market value but on its value at the time of taking by the government in 1974. Petitioner, therefore, prays that the decision of the Court of Appeals be set aside and the case be remanded to the RTC for determination of the amount of just compensation due private respondent "in accordance with law and settled jurisprudence." On the other hand, private respondent argues that the decision of the Court of Appeals, holding petitioner's motion for reconsideration to be a mere scrap of paper because it contained no proof of service on the adverse party, is in accordance with the rulings of this Court. Anent petitioner's contention that the compensation for the taking of the property should be based on its value at the time of taking in 1974 and not on its current market value, private respondent argues that the basis of compensation is not the issue in this case. At any rate, it is contended that the cases invoked by petitioner do not apply since this case is not one for expropriation but one for recovery of possession and for damages. Moreover, private respondent argues that the government is estopped from questioning the trial court's valuation because it is based on the recommendation of the board of commissioners in which petitioner was represented. The petition is well taken. There is no question that petitioner's motion seeking reconsideration of the decision of the RTC did not have attached to it proof that a copy thereof had been served on the adverse party as required by Rule 15, 6 of the Rules of Court. In fact, it appears that, at the time the motion was filed, no copy of the same had been served on private respondent because petitioner actually sent it to private respondent's counsel, Atty. Zenaida G. CruzDucut, only on September 18, 1996, 10 i.e, the day after the motion had been filed. Nonetheless, considering the question raised in the appeal of the government and the amount involved in this case, we think the Court of Appeals should have considered the subsequent service of the motion for reconsideration to be a substantial compliance with the requirement in Rule 15, 6. In De Rapisura v. Nicolas, 11 the movant also failed to attach to his motion for reconsideration proof of service of a copy thereof to the other party. Nonetheless, this Court held the failure not fatal as the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard. It was held that the demands of substantial justice were satisfied by the actual receipt of said motion under those conditions. In People v. Leviste, 12 this Court held it was grave abuse of discretion for the trial court to deny the motion for postponement of the private prosecutor even though no copy of the motion had been served on the accused, in view of the fact that the prosecution was not available on the date of the trial. No substantial right of the accused was impaired. On the other hand, it was important that the case be decided on the merits rather than dismissed on a technicality. The accused should realize that postponements are part and parcel of our legal system, it was held. In Azajar v. Court of Appeals, 13 the defendant filed a motion to dismiss without notice of hearing to the plaintiff as required by Rule 15, 4. As a result, the period for filing his answer expired and he was declared in default. Judgment by default was subsequently rendered against him. The Intermediate Appellate Court set aside the decision after finding that defendant's reasons for his failure to set his motion for hearing was not "utterly without plausibility." This circumstance, together with the fact that defendant had meritorious defenses which, if true, could defeat the plaintiffs claim, in the judgment of the IAC, justified setting aside the decision of the trial court. On appeal, the Court sustained the ruling of the Intermediate Appellate Court. In this case, Atty. Cruz-Ducut actually received a copy of the motion on September 24, 1996, days before the October 2, 1996 hearing. It is contended, however, that Atty. Cruz-Ducut ceased to be private respondent's

counsel on September 18, 1996 and service of petitioner's motion should have been made on Atty. Restituto M. David, its other counsel. This allegation is not true. The records show that at the time she received a copy of the motion for reconsideration on September 24, 1996, Atty. Cruz-Ducut was still private respondent's counsel of record. She withdrew as counsel only on September 30, 1996. 14 There was thus effective service of the motion for reconsideration on private respondent. Indeed, as much as possible, cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be better served. In Republic v. Court of Appeals, 15 the Solicitor General filed the record on appeal six days late. This Court suspended the rules on perfection of appeal as its application would result in the loss to the State of close to 300 hectares of prime sugar land which a private individual had apparently succeeded in registering in his name through fraudulent misrepresentation and machination. This is not to tolerate carelessness or negligence on the part of government lawyers. But one thing is taking disciplinary action against them. Another is protecting vital government interests which should not be jeopardized through the neglect of those appearing for it when this can be done without adverse results to the private parties. These considerations lead us to conclude that the trial court should have exercised its discretion in this case in favor of the government. The amount involved P75,858,000.00 plus the prima facie merit of the government's appeal that, in accordance with the rulings 16 of this Court, the value of the property should be based on its price at the time of taking of the property in 1974 and not on its current market price, should have given the RTC pause and without necessarily reconsidering its ruling that the measure of compensation should be the current market value, should have caused it to give due course to the appeal. This case presents an aspect of the problem of compensation absent from the decided cases, namely, the presence of an agreement of the parties to have "the actual value of the property" determined by a board, on which the government was represented, to be used by the court in fixing the compensation for the land taken. This consideration may not necessarily warrant a different ruling but it does suggest a necessity: that of having the merits of petitioner's appeal decided by the appellate court. WHEREFORE, the decision of the Court of Appeals is REVERSED and the Regional Trial Court of San Fernando, Pampanga (Branch 41) is ORDERED to give due course to petitioner's appeal from the decision in Civil Case No. 9197.

sum of P20,000.00. However, the said Justice reminded complainant that he could offer no help while the case was pending before the Court of Appeals. In February 2000, they received an unfavorable decision from the Court of Appeals. Thus, complainant immediately visited the said Justice at his office in the Supreme Court to inform him of the decision of the Court of Appeals. The Justice offered to prepare the petition for review to be filed with the Supreme Court. Complainant subsequently met the said Justice at the Max's Restaurant, where the latter turned over the prepared petition for review. In consideration therefor, the Justice asked for an additional P20,000.00. Since complainant did not have that amount of money with him at that time, he undertook to send the same by courier as soon as he arrives in Cebu. Complainant asked for the said Justice's complete name and address, which he readily gave as: Atty. Gilbert Soriano, 22 Melon Street, Gatchalian Subdivision, Phase 3-13, Las Pias City. As promised, complainant sent the amount of P20,000.00 through the Aboitiz Express on May 2, 2000. The parcel was received by a certain Alvin Soriano, who turned out to be respondent's son, on May 5, 2000. Complainant was surprised to learn that on May 31, 2000, this Court denied the Petition for Review. Accordingly, they filed a Motion for Reconsideration, which this Court denied with finality on July 31, 2000. Together with his letter, complainant submitted the following documents: l. Photocopy of the Petition for Review allegedly prepared by the "Justice;"5

2. Shipper's Copy of Prepaid Consignment Note No. EO993783C dated May 2, 2000, addressed to one Atty. Gilbert Soriano of 22 Melon St., Gatchalian Subdivision, Phase 3-13, Las Pias City, with telephone numbers 826-1018, containing cash in the amount of P20,000.00,6 and sent by one Doroteo Igoy of Mactan, Lapu-lapu City, with telephone numbers 495-8-49;7 3. Letter dated May 5, 2000 of one Atty. Gilbert F. Soriano, addressed to Aboitiz Express, authorizing his daughter, Christine Soriano, or his son, Alvin A. Soriano, to receive Parcel No. EO993783C on his behalf;8 4. Note dated May 5, 2000, evidencing receipt by one Alvin Soriano of the package on that date at 11:30 o'clock in the morning.9 In his comment dated November 6, 2000,10 Atty. Gilbert Soriano denied that he was the "Justice" alluded to. He alleged that his friend, Nic Taneo, introduced complainant to him because the latter was seeking help regarding a pending case involving his poor relatives; that complainant requested him to go over their petition to be filed with the Supreme Court, to ensure that the same would not be denied on technical grounds; he acceded to the request, after which complainant told him that he will be sending him a token of gratitude, but he did not know that it was money. Respondent further narrated that on May 4, 2000, he received a telephone call from Aboitiz Express, informing him that complainant had sent him a parcel but the messenger was unable to locate his given address, and asking him to execute a letter authorizing anyone in his house to receive the parcel. He recalled complainant's promise of a token of gratitude, so respondent authorized his children to accept the parcel. He was surprised to find inside the parcel cash in the amount of P20,000.00. After several days of mulling over what to do with the money, respondent asked his friend to contact Atty. Rodulfo Taneo. the counsel for petitioners in G.R. No. 141843. Atty. Taneo told him to hold the money and wait until he arrives in Manila. Respondent denied giving complainant any assistance other than checking the formal requirements of the petition for review. He also denied that he entertained complainant in his office in the First Division of this Court which, according to him, barely accommodates the staff therein with very little elbow room. Assuming that complainant was thus accommodated in respondent's office in the First Division, respondent could not have

22. IGOY VS. SORIANO As an officer of the court, it is the duty of a lawyer to uphold the dignity and authority of the court to which he owes fidelity according to the oath he has taken. It is his foremost responsibility "to observe and maintain the respect due to the courts of justice and judicial officers."1 Arrogating unto oneself, as in this case, the mantle of a Justice of the Highest Court of the land for the purpose of extorting money from a party-litigant is an ultimate betrayal of this duty which can not and should never be countenanced, because "[i]t is this kind of gross and flaunting misconduct on the part of those who are charged with the responsibility of administering the law and rendering justice that so quickly and surely corrodes the respect for the law and the courts without which government cannot continue and that tears apart the very bonds of our polity."2 Complainant Doroteo A. Igoy is one of the petitioners in G.R. No. 141843, entitled "Heirs of Gavino Igoy, et al. v. Mactan Shangrila Hotel".3 In a letter-complaint dated October 8, 2000,4 written in the Cebuano dialect and addressed to the Chief Justice, complainant alleged that while the aforesaid case was still pending before the Court of Appeals, he tried to look for a person in the Supreme Court who may assist him in obtaining justice. Sometime in July 1, 1999, a friend introduced complainant to a certain "Justice" of the Supreme Court. He narrated to the said Justice the history of their case. In turn, the said Justice asked for and received from him the

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

Respondent alleged that on October 30, 2000, he informed Atty. Taneo that he was returning the money he received through Aboitiz Express. He was told ,by Atty. Taneo to meet him in Cebu. On October 31, 2000, respondent arrived in Cebu and met Atty. Taneo and complainant at an eatery near the airport. Respondent offered to return the P20,000.00 to complainant, but the latter refused to accept it. Complainant stated that he will withdraw his complaint only after the Supreme Court decides their case in their favor. Respondent, however, informed complainant that as a mere employee of the court, he could not dictate the outcome of the case. On January 8, 2001, Atty. Soriano filed his letter of resignation/retirement under R.A. 1616, without specifying its effectivity date.13 The Office of Administrative Services, to which this case was referred for evaluation, issued a Memorandum on May 30, 2001, recommending respondent's dismissal from the service effective immediately, with forfeiture of all retirement benefits to which he may be entitled. Respondent's offer to resign was obviously an attempt to evade whatever penalty may be imposed on him. However, the mere expedient of resigning from the service will not extricate him from the consequences of his acts. As this Court pointed out in Rayos-Ombac v. Rayos:14 . . . Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizen's may have in the proper administration of justice. Settled is the rule that in administrative cases of this nature, the Court may proceed with its investigation and mete the appropriate penalty against erring officers of the court.15 Resignation should not be used either as an escape or as an easy way out to evade administrative liability by court personnel facing administrative sanction.16 In recommending the dismissal of respondent from service, the Office of Administrative Services (OAS) reasoned that: From the established facts, it is clear that complainant came to see respondent to plead for help in preparing a Petition for Review. The respondent, on the other hand, saw it as an opportunity to make the complainant believe that he has the "influence and connections" in the court and would be easy for him (respondent) to help the complainant. True, as respondent claimed, he was not urged by ulterior motives in preparing the Petition for Review or at least reviewing the same, but not being his official duty to do so, his actuation led complainant to believe that it should be for a fee. It would have been very easy for him to decline the offer of P20,000.00 even if it was gratuitously given if his real intention was merely to help. He knew for a fact that the petitioners have a counsel who, presumably, knows the appropriate pleadings to be filed with this Court. Sec. 7 (D) of R.A. 6713 (Code of Ethical Conduct and Standard for Public Officials and Employees) specifically provides: Sec. 7. xxx Prohibited Acts and Transactions xxx xxx

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

Answer: Inside the premises of the Supreme Court. 3. Who was the person who introduced him as Justice?

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

Answer: At the ground floor of the Supreme Court beside the canteen where the parking area is located. 5. Who were with you at the Max's Restaurant when the petition was given to you?

& Answer: Engr. William Redoblado, Leonardo Paquibot, Atty. Rodolfo Taneo, Atty. Gilbert Soriano and myself (complainant Igoy). Atty. Taneo returned the petition because it was lacking. Respondent submitted his comment12 to the second letter, wherein he contended that when complainant allegedly gave him the sum of P20,000.00 on July 16, 1999, his case was still pending before the Court of Appeals; hence, there was then no reason for complainant to approach respondent and give him money. Moreover, it is unnatural for a person to give money to someone whom he does not know well and whom he met only for the first time. Respondent brands as unbelievable the version that complainant handed the money to him at the parking area beside the Supreme Court canteen, where many of the Court's employees and visitors frequently pass. He claimed that it was not Engr. William Redoblado, but Mr. Taneo who introduced him to complainant.

d. Solicitations or acceptance of gifts Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transactions which may be affected by the functions of their office. Respondent, who is himself a lawyer, should have avoided all the circumstances in which he might be accused of using his office in the guise of "helping others", for this taints the integrity of the Court. The denial of the respondent of the receipt of initial payment of P20,000.00 cannot simply overcome the positive assertions of the complainant. If no such initial payment took place, Atty. Soriano would not have claimed the subsequent payment through the Aboitiz Express. The claim of Atty. Soriano that the amount was given gratuitously would not excuse him from any liability. To tolerate such acts would open the floodgates to fraud or graft and corruption to be committed by officials and employees of the Court. Likewise, the fact that respondent tried to return the amount to Mr. Igoy after the Chief Justice required him to comment on the complaint only strengthened the case against him. Even if the offer to return the money was accepted by the complainant, it will never exculpate him of his administrative liabilities. Respondent by his brazen conduct consummated an act that by itself is a disservice to the administration of justice and an affront of the image of the court before the public. It is admitted that respondent offered to resign, however, resignation should not be used as an easy way to escape administrative liability by a court personnel facing administrative sanction. Respondent therefore cannot go scot-free and be simply forgiven for the damage he caused to the institution he was bound by his oath and The Canons of Legal Ethics to serve with utmost integrity. Respondent may have been in the service for 28 years, but he has blemished his record irreparably and under the circumstances, this office believes that dismissal as a penalty is warranted. The Court adopts the foregoing findings and recommendation of the OAS. Time and again, this Tribunal has emphasized that "[t]he conduct or behavior of all officials and employees of an agency involved in the administration of justice, from the presiding judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility.17 Their conduct must, at all times be characterized by, among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary."18 Indeed, Canon 6, Rule 6.02, of the Code of Professional Responsibility states in no uncertain terms that Rule 6.02. A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. The foregoing command acquires particular significance given the prevailing facts of this case considering that respondent is a senior lawyer of this Court. It bears stressing that government lawyers who are public servants owe utmost fidelity to the public service, for public service is a public trust. As such, government lawyers should be more sensitive to their professional obligations as their disreputable conduct is more likely to be magnified in the public eye.19 The Court could not help but express its great disappointment over the conduct of respondent who, as a lawyer with twenty-eight (28) years of government service behind him, should have been among the first to set an example to his co-employees and fellow civil servants. Instead, he badly tainted the image of this Tribunal as well as the judiciary. Only recently in In Re: Derogatory News Items Charging Court of Appeals Associate Justice Demetrio Demetria with Interference on Behalf of a Suspected Drug Queen,20 this Court said that:

Men and women of the courts must conduct themselves with honor, probity, fairness, prudence and discretion. Magistrates of justice must always be fair and impartial. They should avoid not only acts of impropriety, but all appearances of impropriety. Their influence in society must be consciously and conscientiously exercised with utmost prudence and discretion. For theirs is the assigned role of preserving the independence, impartiality and integrity of the Judiciary. Respondent should be reminded in this regard that the nature and responsibilities of public officers enshrined in the Constitution, and oft- repeated in our case law, are not mere rhetorical words to be taken lightly as idealistic sentiments but as working standards and attainable goals that should be matched with actual deeds.21 Those involved in the administration of justice must live up to the strictest standards of honesty and integrity in the public service,22 In sanctioning errant officers and employees involved in the administration of justice, the Court has held: Since the administration of justice is a sacred task, the persons involved in it ought to live up to the strictest standard of honesty, integrity and uprightness. It bears stressing once again that public service requires utmost integrity and the strictest discipline possible of every public servant. A public office is a public trust that enjoins all public officers and employees, particularly those serving in the judiciary to respond to the highest degree of dedication often even beyond personal interest.23 All too often, this Court has declared that any act which falls short of the exacting standards for public office, especially on the part of those expected to preserve the image of the judiciary, shall not be countenanced.24 To reiterate, public office is a public trust. Public officers must at all times be accountable to the people, serve them with the utmost degree of responsibility, integrity, loyalty and efficiency.25 This Court has also ruled that: Time and again, we have emphasized the heavy burden and responsibility which court personnel are saddled with in view of their exalted positions as keepers of the public faith. They must be constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. As we have held in the case of Mendoza v. Mabutas (223 SCRA 411 [1993], citing Sy v. Academia, 198 SCRA 70s [1991]), this Court condemns and would never countenance such conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.26 Respondent's acts seriously undermined the trust and confidence of the public in the entire judicial system. What makes his infraction worse is the fact that he is not a mere court employee, but a senior attorney employed in the Highest Court of the Land. He has indelibly sullied his record of government service spanning twenty-eight years, and in so doing he has prejudiced the integrity of the Court as a whole. Once more, this Court is called upon to apply disciplinary sanction on an errant member, and again it will not shirk from its responsibility. Thus, this Court imposes on respondent the only penalty that he deserves that of dismissal from the service. ACCORDINGLY, respondent Atty. Gilbert Soriano is hereby DISMISSED from the service, with forfeiture of all retirement benefits and leave credits and with prejudice to reemployment in any branch or instrumentality of the government including government-owned or controlled corporations. This dismissal shall be immediately executory. Further, respondent Atty. Gilbert Soriano is DIRECTED to SHOW CAUSE within ten (10) days from notice hereof why he should not be DISBARRED. In the meantime, respondent is SUSPENDED from the practice of law. Let copies of this Resolution be attached to the records of Atty. Gilbert Soriano and furnished the Integrated Bar of the Philippines and all the courts throughout the country. SO ORDERED.

23. SUAREZ V. PLATON This is an original petition for the peremptory writ of mandamus filed by Fortunato N. Suarez with this court, to compel the respondent judge to reinstate criminal case No. 6426 of the Court of First Instance of Tayabas so that the case may proceed to trial in the ordinary course. It appears on May 9, 1935, Lieutenant Vivencio Orais, of the Philippine Constabulary, one of the respondents in this case, filed a complaint under oath with the justice of the peace of Calauag, Province of Tayabas, charging the petitioner herein, Fortunato N. Suarez, and one Tomas Ruedas, with sedition under Article 142 of the Revised Penal Code. The complaint, upon preliminary examination, was docketed and given due course. While the said case was pending preliminary investigation, Lieutenant Orais, in obedience to an order of the Provincial Commander of Tayabas, moved for the temporary dismissal of the case. This motion was granted by the justice of the peace of Calauag on May 20, 1935, and the case thus dismissed. At the instance of the petitioner herein, Fortunato N. Suarez, the deputy provincial fiscal of Tayabas, Perfecto R. Palacio, in turn charged Lieutenant Vivencio Orais and Damian Jimenez in the justice of the peace court of Calauag with the crime of arbitrary detention committed, according to the information under date of July 8, 1935, as follows: That on or about the 9th day of May, 1935, in the municipality of Calauag, Province of Tayabas, P.I., and within the jurisdiction of this Court, the accused Vivencio Orais being then a public officer to wit: a second lieutenant of the Philippine Constabulary duly appointed and qualified as such and detailed in the Province of Tayabas, without warrant of arrest and without any legal ground whatsoever, moved by personal grudge and ill-feeling which he entertained against Attorney Fortunato Suarez, did, then and there willfully, unlawfully and feloniously arrest and detain said Attorney Fortunato Suarez in the train while the latter was going to Calauag, and with the purpose of concealing the illegality of said arrest and detention of said Fortunato Suarez said accused Vivencio Orais conniving with the other accused, Damian Jimenez, justice of the peace of the said municipality, prepared and subscribed under oath before said Fortunato Suarez with the commission of the crime of sedition; that the said justice of the peace Damian Jimenez, conniving with the other accused Vivencio Orais with the same purpose of concealing the illegality of the arrest and detention of said Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an order declaring that there were merits in the complaint thereby sanctioning the illegal and unjust arrest and detention of Fortunato Suarez who was kept in the municipal jail of Calauag for eight hours. The justice of the peace of Calauag, being one of the accused, the preliminary examination was conducted by the justice of the peace of Lopez, Tayabas, who thereafter bound the defendants over to the Court of First Instance, where the case was docketed as criminal case No. 6426. While the case was pending in the latter court, on petition, of the accused, the provincial fiscal of Tayabas, Ramon Valdez y Nieto, reinvestigated the case. After such reinvestigation, he filed on April 23, 1936, a motion for the dismissal of the case. Fortunato N. Suarez, the petitioner herein, on May 5, 1936, asked the court to appoint Attorney Godofredo Reyes as acting provincial fiscal to handle the prosecution, alleging, among other things, that the provincial fiscal had no courage to prosecute the accused. On May 11, 1936, Attorney Godofredo Reyes entered his appearance as private prosecutor, and vigorously objected to the motion of dismissal filed by the provincial fiscal. The Bar Association of Tayabas, through its president, Emiliano A. Gala, entered its appearance as amicus curiae and likewise objected to the dismissal of the case. On August 14, 1936, the then presiding judge of Branch I of the Court of First Instance of Tayabas, Hon. Ed. Gutierrez David, after hearing, denied the motion, ruling that there was prima facie case against the accused. The court, upon petitioner of the provincial fiscal, designated Deputy Provincial Fiscal Perfecto R. Palacio to handle the prosecution. But Fiscal Palacio, being apparently of the same opinion as the provincial fiscal, declined to proceed, and moved that a practicing attorney or a competent attorney in the Bureau of Justice be designated in his stead. Accordingly, the provincial fiscal of Sorsogon, Jacinto Yamson, at the request of the judge a quo was assigned by the Department of Justice to handle the prosecution of the case. Fiscal Yamson after going over the case likewise entered a nolle prosequi. So, on September 23 1936, he moved for reconsideration of the court's order of August 14, 1936, denying the motion for dismissal presented by the

provincial fiscal. Attorney Godofredo Reyes again vigorously objected to this motion on the ground that there was sufficient proof to warrant the prosecution of the accused. The case in this state when Judge Emilio Pena was appointed to the place of Judge Gutierres David. Later, Judge Serviliano Platon, one of the respondents herein, was appointed to preside over case No. 6426 corresponded, and the case was thus transferred to that sala for action. Judge Platon, after consideration of all the facts and proofs submitted in the case, considered the court's order of August 14, 1936, and dismissed the case, holding that the evidence was insufficient to convict the accused of the crime charged. From this order, the petitioner herein appealed to this Court and the case was here docketed as G.R. No. 45431. On June 30, by a closely divided court, the appeal was dismissed. The petitioner has now filed with this Court the present petition, in which, as stated in the opening paragraph of this decision, we are asked to issue the peremptory writ of mandamus to compel the respondent judge to reinstate the criminal case which had been ordered dismissed by the said judge. The petitioner gives the following grounds for the issuance of said writ: (SPANISH) Should the writ of mandamus prayed for be issued? We observe that after the filing of the information by the provincial fiscal of Tayabas for arbitrary detention against Lieutenant Orais and the justice of the peace of Lopez, the same fiscal moved for the dismissal of the case, because 'despues' de una reinvestigacion de los hechos que dieron margen a la presente causa, y examinada la misma con la debida atencion que su importancia require asi como las circunstancias del caso, ha llegado a la conclusion de que no hay base justificativa para la prosecucion de esta causa." The grounds for this action of the provincial fiscal are stated in his said motion for dismissal of April 23, 1936 (SPANISH) We have not overlooked the fact that this motion for dismissal was denied by Judge Gutierrez David of August 14, 1936. It appears, however, that subsequently Fiscal Yamsom who, as stated above was assigned by the Department of Justice to conduct the prosecution of the case, moved for reconsideration of the Court's order of August 14, 1936, denying the motion for dismissal. Judge Servillano Platon granted the motion for reconsideration and dismissed the case. In this motion for reconsideration not only does Fiscal Yamson reiterate the arguments advanced by Fiscal Valdez y Nieto in the latter's motion for dismissal, but adds (SPANISH) We cannot overemphasize the necessity of close scrutiny and investigation of prosecuting officers of all cases handled by them, but whilst this Court is averse to any form of vacillation by such officers in the prosecution of public offenses, it is unquestionable that they may, in appropriate cases, in order to do justice and avoid injustice, reinvestigate cases in which they have already filed the corresponding informations. In the language of Mr. Justice Sutherland of the Supreme Court of the United States, the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one," (69 United States Law Review, June, 1935, No. 6, p. 309.) Considering all the circumstances, we cannot say that Judge Servillano Platon, in granting the motion for the dismissal of the case for arbitrary detention against Lieutenant Orais and the justice of the peace of Lopez, abused his discretion so flagrantly as to justify, in the interest of justice, a departure from the well-settled rule that an inferior tribunal in the performance of a judicial act within the scope of its jurisdiction and discretion cannot be controlled by mandamus. This is especially true in a matter involving the examination of evidence and the decision of questions of law and fact, since such a duty is not ministerial. (High, Extraordinary Legal Remedies, sec. 156, pp. 173-175). Upon the other hand, it should be observed that in the case of Lieutenant Orais, in the face of the circumstances surrounding the arrest as set forth in the two motions for dismissal by the provincial fiscal of Tayabas, which facts and circumstances must have been investigated and duly weighed and considered by the respondent judge of the Court of First Instance of Tayabas, the arrest effected by Lieutenant

Orais cannot be said to have be entirely unjustified. If, "under trying circumstances and in a zealous effort to obey the orders of his superior officer and to enforce the law, a peace officer makes a mere mistake in good faith, he should be exculpated. Otherwise, the courts will put a premium on crime and will terrorize peace officers through a fear of themselves violating the law. See generally Voorhees on Arrest; 5 Corpus Juris, pp. 399, 416; 2 R.C.L., 450. (United States vs. Santos, 36 Phil., 853, 855.)" The petition is hereby dismissed, without pronouncement regarding cost. So ordered. Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur. Separate Opinions MORAN, J., dissenting: The majority decision takes for granted that which precisely is in issue in this case. In the morning of May 9, 1935, the accused, Lieutenant Vivencio Orais, and Attorney Fortunato Suarez were both in the train on their way to Calauag, Tayabas. In the conversation which ensued between them, Attorney Suarez made certain remarks about the abuses of authority committed by the officers of the Government who conducted the raid against the Sakdalistas at Sariaya. Upon inquiry of Lieutenant Orais as to what party Attorney Suarez belonged, and, pressed upon to state whether or not he was a Sakdalista, Attorney Suarez replied "may be". On the strength of these facts, Lieutenant Orais arrested Attorney Suarez for the alleged offense of uttering seditious words, and conducted him to the municipal building of Calauag and there lodged him in jail. He filed in the justice of the peace court of the same municipality an information against Attorney Suarez for uttering seditious words, in violation of article 142 of then Revised Penal Code. On the day following, Lieutenant Orais, acting under the instruction of his superior, moved for the dismissal of the case. Thereafter, the deputy provincial fiscal of Tayabas, at the instance of Fortunato Suarez, filed an information against Lieutenant Orais and Damian Jimemez, the latter as justice of the peace of Calauag, Tayabas, for the crime of arbitrary detention, the information reading as follows: That on or about the 9th day of May, 1935, in the municipality of Calauag, Province of Tayabas, P.I., and within the jurisdiction of this Court, the accused Vivencio Orais being then a public officer to wit: a second lieutenant of the Philippine Constabulary duly appointed and qualified as such and detailed in the province of Tayabas, without any legal ground whatsoever, moved by personal grudge and ill-feeling which he entertained against Attorney Fortunato Suarez, did, then and there willfully, unlawfully and feloniously arrest and detain said Attorney Fortunato Suarez in the train while the latter was going to Calauag; and with the purpose of concealing the illegality of said arrest and detention of said Fortunato Suarez said accused Vivencio Orais conniving with the other accused Damian Jimenez, justice of the peace of said municipality, prepared and subscribed under oath before said justice of the peace a complaint falsely charging said Fortunato Suarez with the commission of the crime of sedition; that the said justice of the peace Damian Jimenez, conniving with the other accused Vivencio Orais with the same purpose of concealing the illegality of the arrest and detention of said Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an order declaring that there were merits in the complaint thereby sanctioning the illegal and unjust arrest and detention of Fortunato Suarez who was kept in the municipal jail of Calauag for eight hours. The justice of the peace of Lopez, Tayabas, conducted the preliminary investigation, and, thereafter, remanded the case to the Court of First Instance. On April 23, 1936, the provincial fiscal moved for the dismissal of the case upon the alleged ground, that after a supposed reinvestigation, the new facts established therein disclose no sufficient evidence to sustain the information. The motion was overruled by Judge Gutierrez David, then presiding the second branch of the Court of First Instance of Tayabas. Jacinto Yamson, appointed as special fiscal to take charge of the case, moved for the reconsideration of the order of Judge Gutierrez David. To this motion, Attorney Suarez, through counsel, interposed an opposition. Judge Servillano Platon, then presiding the first branch of the Court of First Instance of Tayabas, acceded to the motion and dismissed the information. From this

order, Attorney Suarez appealed, but the appeal was dismissed by this Court on the ground that mandamus was the proper remedy. Accordingly, the present action is filed in this Court. The sole question here involved is whether or not, according to the evidence in the hands of the prosecution, there is sufficient ground to proceed with the criminal case for arbitrary detention against Lieutenant Vivencio Orais and Justice of the Peace Damian Jimenez. A close examination of such evidence, which is attached to the record, will disclose that the arrest of Fortunato Suarez by Lieutenant Orais in the morning of May 9, 1935, was prompted obviously, not by official duty, but by personal resentment against certain statements made by the former. I have taken pains to scrutinize carefully the testimonies of all the witnesses who testified in the preliminary investigation, and they show nothing seditious in the utterances of Attorney Suarez on the occasion in question. My conclusion, then, is that the detention of Attorney Suarez by Lieutenant Orais was arbitrary, and that the charge made against Lieutenant Orais for arbitrary detention is well founded on facts. The fiscal, in moving for the dismissal of the case before the Court of First Instance of Tayabas, mentioned a reinvestigation conducted by him of the case, in which he supposedly found a new evidence warranting its dismissal. Counsel for Attorney Fortunato Suarez, however, insisted on the production of such new evidence before the court, but the prosecution could not respond to such demand. This is an indication that the supposed additional evidence never existed. But the majority, instead of deciding the issue as to whether or not the evidence in the hands of the prosecution was sufficient to proceed with the charge for arbitrary detention, takes for granted that such evidence was not sufficient, relying upon the assumption that the "circumstances surrounding the arrest as set forth in the two motions for dismissal by the provincial fiscal of Tayabas . . . must have been investigated and duly weighed and considered by the respondent judge of the Court of First Instance of Tayabas." In other words, the majority assumes that which is the subject of the petitioner's challenge, which is tantamount to a refusal to consider his complaint after he has been told that he may come to this court by mandamus proceedings. Although a broad discretion must be conceded to prosecuting attorneys and trial courts in the determination of sufficient grounds for dismissing or continuing a criminal prosecution, yet when, as in this case, the basis for the action of both officers fiscal and judge is produced in this court, and we are called upon to determine whether, on the basis of such evidence and determine the question at issue. And, in the present case, it is my opinion that the evidence we have in the record sufficiently shows that the prosecution for arbitrary detention against Lieutenant Orais must take its course, and that its dismissal without trial by the Court of First Instance is without basis on facts and constitutes an abuse of discretion. I agree, however, that there is no reason for including in the charge for arbitrary detention the justice of the peace of Calauag, Damian Jimenez. The evidence shows no connection between him and Lieutenant Orais in the arbitrary arrest of Attorney Fortunato Suarez. My vote, therefore, is that the petition for mandamus must be granted with respect to the prosecution against Lieutenant Vivencio Orais, but denied with respect to the prosecution against Damian Jimenez.