EMILIANA M. EUSTAQUIO, PIORILLO GUTIERREZ RUBIS and ALICIA MONTERO RUBIS, complainants, vs.ATTY. REX C. RIMORIN, respondent.

RESOLUTION
QUISUMBING, J.:

In a verified complaint[1] filed before this Court on June 17, 1999, complainants Emiliana M. Eustaquio, Piorillo G. Rubis, and Alicia M. Rubis charged Atty. Rex C. Rimorin with grave misconduct for allegedly falsifying certain documents which enabled him to sell complainants land without their knowledge and consent. It appears from the records that on July 30, 1979, the spouses Piorillo Gutierrez Rubis and Alicia Montero Rubis were given title to a parcel of land located at Dizon Subdivision, Baguio City and covered by TCT No. T-30444 of the Baguio City Registry of Deeds. On June 22, 1991, while complainants Piorillo and Alicia Rubis were both in the United States, respondent Atty. Rex C. Rimorin executed a Special Power of Attorney[2] purportedly notarized, with the Rubis spouses present and appearing on June 22, 1991, before Notary Public E.M. Fallarme of Baguio City.[3] Using this spurious special power of attorney, respondent Rimorin subsequently executed on July 3, 1991, a Deed of Absolute Sale[4] over the same property in favor of Mr. and Mrs. So Hu, of Baguio City. The execution of this deed of sale resulted in the issuance on July 5, 1991, of TCT No. 40835[5] over the land in favor of the So Hu spouses. In November 1997, complainant Alicia Rubis came to the Philippines for a brief visit. While she was still unaware of the forgeries already perpetrated by respondent Atty. Rimorin, she was inveigled into signing a memorandum of agreement [6] between complainants Rubis and So Hu spouses dated November 29, 1997, containing the following provisions:

That the FIRST PARTY (Plaintiff Alicia Montero Rubis) is the registered owner of a parcel of land situated at Dizon Subdivision, Baguio City, more particularly covered and described under TCT No. 30444 containing an area of FIVE HUNDRED SEVEN (SIC) ONE (571) SQUARE METERS more or less. That the FIRST PARTY who is now a resident of Virginia, USA, intends to sell the above described property to any interested buyer and by these presents has offered the said property for sale to the SECOND PARTY who agrees to purchase the same subject to the following terms and conditions.
On February 26, 1998 the title of the So Hu spouses was cancelled and in its place TCT No. 69071[7] was issued in the name of spouses Danilo T. de Vera and Estrellita S. Mercado, both of Baguio City.

On July 21, 1999, this Court issued a resolution[8] directing respondent Atty. Rimorin to file his comment on the instant complaint within ten (10) days from notice of the resolution. On December 28, 1999, complainants filed a manifestation with motion[9] alleging that copies of pleadings sent to respondents known address have been returned with a notation that respondent was abroad.[10] They also made reference to other processes and pleadings, in a civil and a criminal case, likewise filed by complainants against respondent, which were unsuccessfully served because respondent was in the United States as shown by attached return cards. Hence, complainants prayed respondent be deemed to have waived his right to comment and that, accordingly, investigation of the case be conducted even without respondents comment.[11] In a resolution[12] dated February 2, 2000, this Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Subsequently, Commissioner Milagros V. San Juan of the Commission on Bar Discipline of the IBP issued an order[13]requiring respondent Atty. Rimorin to submit his duly verified answer within 15 days from receipt of the order. In another order[14] dated October 24, 2000, Commissioner San Juan reiterated her previous order. Because of respondents failure to file his answer, the Commission resolved to declare respondent to have waived his right to file an answer and the case was deemed submitted for resolution. Hearings were conducted and on November 13, 2001, the Investigating Commissioner found respondent Atty. Rimorin guilty of grave misconduct and recommended his disbarment. Thus:

The execution of the memorandum of agreement dated November 29, 1997 was made apparently to remedy the fraud committed in the execution of the Special Power of Attorney to give it semblance of legality. However, the dates of the documents is a clear give away that fraud has been committed. The Memorandum of Agreement is dated November 29, 1999 yet the Deed of Sale in favor of Spouses So Hu was executed July 3, 1991; the Special Power of Attorney was executed on June 22, 1991; the executed fraudulent Special Power of Attorney resulted to the subsequent sales, all manipulated by the respondent. These facts remain uncontroverted by the respondent. In view of all the foregoing, it is respectfully recommended that the respondent Atty. Rex C. Rimorin be DISBARRED from practice of law.
[15]

On June 29, 2002, the Board of Governors of the Integrated Bar of the Philippines passed a resolution[16] in Administrative Case No. 5081 resolving and adopting the report and recommendation[17] of the Investigating Commissioner with modification that respondent be suspended instead of disbarred. Said resolution reads as follows:

RESOLUTION NO. XV-2002-227 Adm. Case No. 5081

Emiliana M. Eustaquio, et al. vs. Atty. Rex C. Rimorin RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the aboveentitled case, herein made part of this Resolution/Decision as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and in view of respondents execution of the Memorandum of Agreement was made apparently to remedy the fraud committed in the execution of the Special Power of Attorney to give it semblance of legality, Respondent is hereby SUSPENDED from the practice of law for five (5) years and Revocation of his Notarial Commission and Perpetual Disqualification from being appointed as Notary Public.
[18]

Said resolution is now before us for confirmation. Time and again, we have stressed the settled principle that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.[19] Membership in the bar is a privilege burdened with conditions. A high sense of morality, honesty, and fair dealing is expected and required of a member of the bar. Rule 1.01 of the Code of Professional Responsibility provides that, A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.[20] The nature of the office of a lawyer requires that he shall be of good moral character. This qualification is not only a condition precedent to the admission to the legal profession, but its continued possession is essential to maintain ones good standing in the profession. [21] A lawyer can be deprived of his license for misconduct ascertained and declared by judgment of the Court after giving him the opportunity to be heard.[22] The power of the Court to discipline lawyers should not, however, be exercised in an arbitrary and despotic manner. Neither should it be exercised at the pleasure of the Court or from passion, prejudice or personal hostility. The Courts power to discipline members of the bar should be tempered by a sound and just judicial discretion, whereby the rights and independence of the bar may be scrupulously guarded and maintained by the Court as the rights and dignity of the Court itself.[23] In Montano v. Integrated Bar of the Philippines,[24] we said that the power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment be imposed as a penalty. It should never be decreed where a lesser penalty, such as temporary suspension, would accomplish the end desired. In this case, despite having been furnished copies of orders requiring him to file comment or a verified answer, respondent Atty. Rimorin failed to file any comment or an answer. The dates of the documents attached in the complaint and presented during the investigation before the IBP clearly show, as reported, that fraud has been committed by him. The Memorandum of Agreement, where respondent purportedly bought the subject property from complainant Alicia Rubis, was dated November 29,

1997; yet the Deed of Sale in favor of the Spouses So Hu, signed and executed by respondent purportedly as agent of complainants, was executed earlier on July 3, 1991. In fact, at the time the Memorandum of Agreement was executed, a new TCT had already been issued to the Spouses So Hu on July 5, 1991. The Special Power of Attorney in respondents favor was allegedly executed on June 22, 1991, when complainant spouses were still in the United States and could not have possibly signed it in Baguio City, much less appear before the notary to acknowledge it. These facts remain uncontroverted by respondent. It is clear that respondents execution of the Memorandum of Agreement was made, as alleged by complainants, to remedy the fraud committed in the execution of the Special Power of Attorney and to give it semblance of legality. In the absence of satisfactory explanation, one found in possession of and who used a forged document, taking advantage thereof and profiting thereby, is presumed the forger or the material author of the falsification.[25] This presumption has not been rebutted by respondent. Respondents deceitful conduct makes him less than worthy of his continued practice of law. A lawyer is expected at all times to uphold the integrity of the legal profession.[26] Commission of grossly immoral conduct and deceit are grounds for suspension or disbarment of lawyers.[27]Whenever it is made to appear to the Supreme Court that an attorney is no longer worthy of the trust and confidence of the public, it becomes not only the right but the duty of the Court which made him one of its officers and gave him the privilege of ministering within its bar to withdraw the privilege. [28] On the basis of the records before us, we have no hesitance in confirming the resolution passed by the IBP Board of Governors suspending respondent from the practice of law and revoking his notarial commission as well as disqualifying him perpetually from being appointed as notary public. WHEREFORE, Atty. Rex C. Rimorin is hereby SUSPENDED from the practice of law for five (5) years. His commission as Notary Public is revoked, and he is perpetually disqualified from appointment as Notary Public. Let a copy of this Resolution be FURNISHED to the IBP, the OCA, and the Bar Confidant to be spread on the personal records of respondent and for circulation to all courts in the Philippines. SO ORDERED.

EDUARDO M. COJUANGCO, JR., Complainant,

Adm. Case No. 2474 Present:

DAVIDE, JR., C.J.,

PUNO, PANGANIBAN, versus QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, *AUSTRIA-MARTINEZ, CORONA, *CARPIO MORALES, CALLEJO, SR.,

AZCUNA, TINGA, and

**

CHICO-NAZARIO, JJ.

ATTY. LEO J. PALMA, Respondent.

Promulgated: September 15, 2004

X --------------------------------------------------------------------------------------x

DECISION
PER CURIAM:

The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after

admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal.[1] Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo J. Palma, alleging as grounds deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct. The facts are undisputed: Complainant and respondent met sometime in the 70s. Complainant was a client of Angara Concepcion Regala & Cruz Law Offices (ACCRA) and respondent was the lawyer assigned to handle his cases. Owing to his growing business concerns, complainant decided to hire respondent as his personal counsel. Consequently, respondents relationship with complainants family became intimate. He traveled and dined with them abroad.[2] He frequented their house and even tutored complainants 22-year old daughter Maria Luisa Cojuangco (Lisa), then a student of Assumption Convent. On June 22, 1982, without the knowledge of complainants family, respondent married Lisa in Hongkong. It was only the next day that respondent informed complainant and assured him that everything is legal. Complainant was shocked, knowing fully well that respondent is a married man and has three children. Upon investigation, complainant found

that respondent courted Lisa during their tutoring sessions. Immediately, complainant sent his two sons to Hongkong to convince Lisa to go home to Manila and discuss the matter with the family. Lisa was persuaded. Complainant also came to know that: (a) on the date of the supposed marriage, respondent requested from his (complainants) office an airplane ticket to and from Australia, with stop-over in Hong Kong; (b) respondent misrepresented himself as bachelor before the Hong Kong authorities to facilitate his marriage with Lisa; and Anton and Eduardo Lorenzo. On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a petition[3] for declaration of nullity of the marriage between respondent and Lisa, docketed as Civil Case No. Pq-0401-P. In the Decision[4] dated November 2, 1982, the CFI declared the marriage null and void ab initio. Thereafter, complainant filed with this Court the instant complaint[5] for disbarment, imputing to respondent the following acts:
a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his family and taking undue advantage of his tutoring sessions with Maria Luisa, respondent secretly courted her. The great disparity in intelligence, education, age, experience and maturity between Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as to overcome her scruples and apprehensions about respondents courtship and advances, considering that he is a married man with three (3) children;

(c) respondent was married to

Elizabeth Hermosisima and has three children, namely: Eugene Philippe, Elias

b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her travels abroad under false pretenses that he was traveling on official business for complainant. To break down the final resistance of Maria Luisa and assuage her pangs of guilt, he made representations that there was no legal impediment whatsoever to his marrying;

c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage, respondent succeeded in inducing and beguiling her into marrying him. Without complying with the requirements of Philippine law that he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the advice of Maria Luisas paren ts should first be obtained she being only twenty-two (22) years of age, respondent succeeded in contracting marriage with her in Hongkong on June 22, 1982 by falsely representing himself before the Hongkong authorities that he is a bachelor. x x x.

Respondent filed a motion to dismiss[6] on the ground of lack of cause of action. He contended that the complaint fails to allege acts constituting deceit, malpractice, gross misconduct or violation of his lawyers oath. There is no allegation that he acted with wanton serving recklessness, complainants lack of skill or ignorance of the law in

interest. Anent the charge of grossly immoral conduct, he stressed that he married complainants daughter with utmost sincerity and good faith and that it is contrary to the natural course of things for an immoral man to marry the woman he sincerely loves.

In the Resolution[7] dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and recommendation. Former Assistant Solicitor General Oswaldo D. Agcaoili conducted the investigation. Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 64538[8] a Resolution[9] (a)setting aside the CFI Decision dated November 2, 1982 in Civil Case No. Pq0401-P declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the outcome of this case. On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedings[10] on the ground that the final outcome of Civil Case No. Pq0401-P poses a prejudicial question to the disbarment proceeding. It was denied. Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining Order.[11] In the Resolution dated December 19, 1984, we enjoined the OSG from continuing the investigation of the disbarment proceedings.[12] Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar Discipline. On October 19, 1998, Commissioner Julio C. Elamparo issued the following order:

Considering the length of time that this case has remained pending and as a practical measure to ease the backlog of this Commission, the parties shall within ten (10) days from notice, manifest whether or not they are still interested in prosecuting this case or supervening events have transpired which render this case moot and academic or otherwise, this case shall be deemed closed and terminated.[13]

In his Manifestation,[14] complainant manifested and confirmed his continuing interest in prosecuting his complaint for disbarment against respondent. On the other hand, respondent sought several postponements of hearing on the ground that he needed more time to locate vital documents in support of his defense. The scheduled hearing of December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he fail to appear or present deposition, the case will be deemed submitted for resolution.[15] Respondent again failed to appear on January 24, 2002; hence, the case was considered submitted for resolution.[16] On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and Recommendation finding respondent guilty of grossly immoral conduct and violation of his oath as a lawyer. She recommended that respondent be suspended from the practice of law for a period of three (3) years. Thus:
The main issue to be resolved in this case is whether or not respondent committed the following acts which warrant his disbarment: a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant;

b)

His misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage; The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his oath as a lawyer.

c)

Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor, however, he claimed that the marriage certificate stated a condition no different from term spinster with respect to Luisa. There is no question that respondent as a lawyer well versed in the law knew fully well that in marrying Maria Luisa he was entering into a bigamous marriage defined and penalized under Article 349 of the Revised Penal Code. The respondent betrayed the trust reposed in him by complainant. He was treated as part of the family and was allowed to tutor Maria Luisa. For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and violation of his oath as a lawyer, and it is recommended that respondent be suspended from the practice of law for a period of three (3) years.
SO ORDERED.

The IBP Board of Governors adopted and approved the above Report and Recommendation, but it reduced respondents penalty to only one (1) year suspension. Except for the penalty, we affirm the IBPs Report and Recommendation. At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards among its members. There is no

distinction as to whether the transgression is committed in the lawyers professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.[17] Thus, not only his professional activities but even his private life, insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of inquiry on the part of the proper authorities.[18] Respondent claims that he had served complainant to the best of his ability. In fact, the complaint does not allege that he acted with wanton recklessness, lack of skill and ignorance of the law. While, complainant himself admitted that respondent was a good lawyer,[19] however, professional competency alone does not make a lawyer a worthy member of the Bar. Good moral character is always an indispensable requirement. The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with Elizabeth Hermosisima. The Certification[20] from the Local Civil Registrar of Cebu City shows that he married Elizabeth on December 19, 1971 at Cardials Private Chapel, Cebu City. On the other hand, the Certificate of Marriage[21] from the Deputy Registrar of Marriages, Hong Kong, proves respondents subsequent marriage with Lisa on July 9, 1982. That Elizabeth was alive at the time of respondents second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeths classmate and family friend.[22]

Undoubtedly, respondents act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of Court. He exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage is contrary to honesty, justice, decency and morality.[23] This is not the first occasion that we censure immorality. Thus, we have somehow come up with a common definition of what constitutes immoral conduct, i.e., that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.[24] Measured against this definition, respondents act is manifestly immoral. First, he abandoned his lawful wife and three children. Second, he lured an innocent young woman into marrying him. And third, he misrepresented himself as a bachelor so he could contract marriage in a foreign land. Our rulings in the following cases are relevant: 1) In Macarrubo vs. Macarrubo,[25] respondent entered into multiple marriages and then resorted to legal remedies to sever them. There, we ruled that [S]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and wellbeing of our communities, and for the strengthening of our nation as a whole. As such, there can be no other fate that awaits respondent than to be disbarred.

(2) In Tucay vs. Tucay,[26] respondent contracted marriage with another married woman and left complainant with whom he has been married for thirty years. We ruled that such acts constitute a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession, warranting respondents disbarment. (3) In Villasanta vs. Peralta,[27] respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We held that the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality. Thus, lacking the good moral character required by the Rules of Court, respondent was disqualified from being admitted to the bar. (4) In Cabrera vs. Agustin,[28] respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and integrity, which at all times is expected of members of the bar. He is, therefore, disbarred from the practice of law. (5) In Toledo vs. Toledo,[29] respondent abandoned his wife, who supported him and spent for his law education, and thereafter cohabited with another woman. We ruled that he failed to maintain the highest degree of morality expected and required of a member of the bar. For this, respondent was disbarred.

(6) In Obusan vs. Obusan, Jr.,[30] respondent abandoned his lawful wife and child and resumed cohabitation with his former paramour. Here, we ruled that abandoning ones wife and resuming carnal relations with a former paramour, a married woman, constitute grossly immoral conduct warranting disbarment. The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was respondents closeness to the complainants family as well as the latters complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be complainants legal affairs only, he sneaked at the latters back and courted his daughter. Like the proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of complainants resources by securing a plane ticket from complainants office in order to marry the latters daughter in Hongkong. He did this without complainants knowledge. Afterwards, he even had the temerity to assure complainant that everything is legal. Clearly, respondent had crossed the limits of propriety and decency. Respondent justified his conduct by professing he really loved Lisa and since he married her, he cannot be charged with immorality. His reasoning shows a distorted mind and a brazen regard on the sanctity of marriage. In such relationship, the man and the woman are obliged to live together, observe mutual respect and fidelity.[31] How could respondent perform these obligations to Lisa when he was previously married to Elizabeth? If he really loved her, then the noblest thing he could have done was to walk away.

Respondents culpability is aggravated by the fact that Lisa was just a 22-year old college student of Assumption Convent and was under psychological treatment for emotional immaturity.[32] an easy prey. Anent respondents argument that since the validity of his marriage to Lisa has not yet been determined by the court with finality, the same poses a prejudicial question to the present disbarment proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to the instant disbarment proceeding. As we held in In re Almacen,[33] a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him,[34] or if an affidavit of withdrawal of a disbarment case does not affect its course,[35] then the judgment of annulment of respondents marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof --- clear preponderance of evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches.[36] The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they shall not engage in unlawful, dishonest, immoral or deceitful conduct. This is founded on the lawyers primordial duty to society as spelled out in Canon 1 which states:
CANON 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

Naturally, she was

It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:[37]
Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.

Corollarily, the above responsibility is enshrined in the Attorneys Oath which every lawyer in the country has to take before he is allowed to practice. In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The penalty of one (1) year suspension recommended by the IBP is not commensurate to the gravity of his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of disbarment. WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation of his oath as a lawyer, and is hereby DISBARRED from the practice of law. Let respondents name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision. SO ORDERED.

FELIPE E. ABELLA, Complainant,

A.C. No. 5688 Present: PUNO, C.J., Chairperson, CARPIO, CORONA, LEONARDO-DE CASTRO, and BERSAMIN, JJ.

- versus -

ATTY. ASTERIA E. CRUZABRA, Respondent.

Promulgated: June 4, 2009

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

RESOLUTION

CARPIO, J.:

Felipe E. Abella (complainant) filed a complaint for violation of Canon 1 of the Code of Professional Responsibility and Section 7(b)(2) of Republic Act No. 6713[1] (RA 6713) or the Code of Conduct and Ethical Standards for Public Officials and Employees against Atty. Asteria E. Cruzabra (respondent). In his affidavit-complaint[2] dated 8 May 2002, complainant charged respondent with engaging in private practice while employed in the government service. Complainant alleged that respondent was admitted to the Philippine Bar on 30 May 1986 and was appointed as Deputy Register of Deeds of General Santos City on 11 August 1987.[3] Complainant asserted that as Deputy Register of Deeds, respondent filed a petition for commission as a notary public and was commissioned on 29 February 1988 without obtaining prior authority from the Secretary of the Department of Justice (DOJ).[4] Complainant claimed that respondent has notarized some 3,000 documents.[5]Complainant pointed out that

respondent only stopped notarizing documents when she was reprimanded by the Chief of the Investigation Division of the Land Registration Authority.[6] Complainant contended that respondent could not justify her act by pretending to be in good faith because even non-lawyers are not excused from ignorance of the law. Complainant branded as incredible respondents claim that she was merely motivated by public service in notarizing 3,000 documents. Complainant pointed out that respondent spent money to buy the Notarial Register Books and spent hours going over the documents subscribed before her, thereby prejudicing her efficiency and performance as Deputy Register of Deeds. Complainant believed that even if respondent had obtained authority from the DOJ, respondent would still be guilty of violating Section 7(b)(2) of RA 6713 because her practice as a notary public conflicts with her official functions.[7] In her Comment, respondent admitted that she was a notary public from 29 February 1988 to 31 December 1989.[8]Respondent stated that she was authorized by her superior, the Register of Deeds, to act as a notary public. Respondent pointed out that the Register of Deeds, Atty. Pelagio T. Tolosa, also subscribed petitions and documents that were required to be registered.[9]Respondent explained that the Register of Deeds imposed the following conditions for her application as a notary public:
xxx 4. That the application for commission was on the condition that respondent cannot charge fees for documents required by the Office to be presented and under oath.[10]

Respondent contended that when she filed her petition for commission as a notary public, the requirement of approval from the DOJ Secretary was still the subject of a pending query by one of the Registrars and this fact was not known to respondent.[11]Respondent maintained that she had no intention to violate any rule of law. Respondent, as a new lawyer relying on the competence of her superior, admitted that an honest mistake may have been committed but such mistake was committed without willfulness, malice or corruption.[12]

Respondent argued that she was not engaged in illegal practice as a notary public because she was duly commissioned by the court.[13] Respondent denied that she violated Section 7(b)(2) of RA 6713 because she was authorized by her superior to act as a notary public. Respondent reasoned that her being a notary public complemented her functions as Deputy Register of Deeds because respondent could immediately have documents notarized instead of the registrants going out of the office to look for a notary public. Respondent added that she did not charge fees for the documents required by the office to be presented under oath.[14] Respondent insisted that contrary to complainants claims, she only notarized 135 documents as certified by the Clerk of Court of the 11th Judicial Region, General Santos City.[15] In her Report and Recommendation (Report) dated 25 January 2005, Investigating Commissioner Lydia A. Navarro recommended to the IBP Board of Governors the dismissal of the complaint against respondent for lack of merit. The Report reads in part:
However, the fact that she applied for commission as Notary Public without securing the approval of the proper authority although she was allowed to do so by her superior officer, was not her own undoing for having relied on the ample authority of her superior officer, respondent being a neophyte in the law profession for having newly passed the bar a year after at that time. Records further showed that after having been reprimanded by Atty. Flestado for said mistake which was done in good faith respondent ceased and desisted to perform notarial work since then up to the present as could be gleaned from the Certification issued by Clerk of Court VI Atty. Elmer D. Lastimosa of the 11th Judicial Region General Santos City; dated December 23, 2004 that 135 documents have been notarized by the respondent from February 29, 1988 to December 31 1989 and there was no record of any notarized documents from January 19, 1990 to December 21, 1991.[16]

In a Resolution dated 12 March 2005, the IBP Board of Governors, in adopting and approving the Report, dismissed the case for lack of merit. Complainant claims that in dismissing the complaint for lack of merit despite respondents admission that she acted as a notary public for two years, the IBP Board of Governors committed a serious error amounting to lack of jurisdiction or authority.[17]

Section 7(b)(2) of RA 6713 provides:

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: xxx (b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not: xxx (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or xxx

Memorandum Circular No. 17[18] of the Executive Department allows government employees to engage directly in the private practice of their profession provided there is a written permission from the Department head. It provides:
The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:

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: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors, Subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. (Boldfacing supplied)

It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondents superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986. In Yumol, Jr. v. Ferrer Sr.,[19] we suspended a lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a written authority and approval with a duly approved leave of absence from the CHR. We explained:

Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable. In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent. Thus, he cannot engage in private practice. As to respondents act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary public only on 29 October 2001. Considering the acts of notarization are within the ambit of the term practice of law, for which a prior written request and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.[20]

In Muring, Jr. v. Gatcho,[21] we suspended a lawyer for having filed petitions for commission as a notary public while employed as a court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatchos filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.[22]

Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.[23]

WHEREFORE, we find Atty. Asteria E. Cruzabra guilty of engaging in notarial practice without the written authority from the Secretary of the Department of Justice, and accordingly we REPRIMAND her. She is warned that a repetition of the same or similar act in the future shall merit a more severe sanction.
G.R. No. 176530 June 16, 2009

SPOUSES CONSTANTE AGBULOS AND ZENAIDA PADILLA AGBULOS, Petitioners, vs. NICASIO GUTIERREZ, JOSEFA GUTIERREZ and ELENA G. GARCIA, Respondents. RESOLUTION NACHURA, J.: This petition for review on certiorari seeks the review of the Decision1 of the Court of Appeals (CA) dated February 6, 2007 in CAG.R. CV No. 83994 which set aside the dismissal of a complaint for declaration of nullity of contract, cancellation of title, reconveyance and damages. The case stems from the following antecedents: On October 16, 1997, respondents, Dr. Nicasio G. Gutierrez, Josefa Gutierrez de Mendoza and Elena G. Garcia, through their counsel, Atty. Adriano B. Magbitang, filed with the Regional Trial Court (RTC) of Gapan, Nueva Ecija, a complaint against petitioners, spouses Constante Agbulos and Zenaida Padilla Agbulos, for declaration of nullity of contract, cancellation of title, reconveyance and damages. The complaint alleged that respondents inherited from their father, Maximo Gutierrez, an eight-hectare parcel of land located in Callos, Penaranda, Nueva Ecija, covered by Transfer Certificate of Title (TCT) No. NT-123790 in the name of Maximo Gutierrez. Through fraud and deceit, petitioners succeeded in making it appear that Maximo Gutierrez executed a Deed of Sale on July 21, 1978 when, in truth, he died on April 25, 1977. As a result, TCT No. NT-123790 was cancelled and a new one, TCT No. NT-188664, was issued in the name of petitioners. Based on the notation at the back of the certificate of title, portions of the property were brought under the Comprehensive Agrarian Reform Program (CARP) and awarded to Lorna Padilla, Elenita Nuega and Suzette Nuega who were issued Certificates of Land Ownership Award (CLOAs). In their defense, petitioners averred that respondents were not the real parties in interest, that the Deed of Sale was regularly executed before a notary public, that they were possessors in good faith, and that the action had prescribed. On the day set for the presentation of the respondents (plaintiffs) evidence, petitioners filed a Motion to Dismiss, assailing the jurisdiction of the RTC over the subject matter of the case. Petitioners contended that the Department of Agrarian Reform Adjudication Board (DARAB), not the RTC, had jurisdiction since the subject land was covered by the CARP, and CLOAs had been awarded to tenants. Respondents opposed the motion, arguing that the motion had been filed beyond the period for filing an Answer, that the RTC had jurisdiction over the case based on the allegations in the complaint, and that the DARAB had no jurisdiction since the parties had no tenancy relationship.

In an Order2 dated October 24, 2002, the RTC granted the petitioners motion and dismissed the complaint for lack of jurisdiction. The RTC held that the DARAB had jurisdiction, since the subject property was under the CARP, some portions of it were covered by registered CLOAs, and there was prima facie showing of tenancy. 3 Respondents filed a motion for reconsideration. On November 13, 2003, the RTC denied the motion.4 Atty. Magbitang filed a Notice of Appeal5 with the RTC, which gave due course to the same.6 The records reveal that on December 15, 2003, respondent Elena G. Garcia wrote a letter to Judge Arturo M. Bernardo, Acting Judge of RTC Gapan, Branch 87, stating that they were surprised to receive a communication from the court informing them that their notice of appeal was ready for disposition. She also stated in the letter that there was no formal agreement with Atty. Magbitang as to whether they would pursue an appeal with the CA, because one of the plaintiffs was still in America.7 On February 6, 2007, the CA rendered a Decision in favor of respondents. The dispositive portion of the decision reads: WHEREFORE, premises considered, the appeal is hereby GRANTED and the assailed Order dated October 24, 2002 issued by the Regional Trial Court (RTC) of Gapan, Nueva Ecija, Branch 87, is REVERSED and SET ASIDE. Accordingly, the subject complaint is reinstated and the records of the case is (sic) hereby remanded to the RTC for further proceedings.
1avv phi 1

SO ORDERED.8 The CA concluded that the dispute between the parties was purely civil, not agrarian, in nature. According to the CA, the allegations in the complaint revealed that the principal relief sought was the nullification of the purported deed of sale and reconveyance of the subject property. It also noted that there was no tenurial, leasehold, or any other agrarian relations between the parties. Thus, this petition, raising the following issues for the resolution of this Court: 1. Whether or not the CA erred in not dismissing the appeal despite the undisputed fact that Atty. Magbitang filed the notice of appeal without respondents knowledge and consent; 2. Whether or not the CA erred in giving due course to the appeal despite the fact that Atty. Magbitangs appellants brief failed to comply with the mandatory requirements of Section 13, Rule 44 of the Rules of Court regarding the contents of an appellants brief; and 3. Whether or not the CA erred in ruling that the RTC (Regional Trial Court), not the DARAB (Department of Agrarian Reform Adjudication Board) or the PARAD/RARAD (Provincial/Regional Agrarian Provincial Agrarian Reform Adjudicator), has jurisdiction over respondents complaint.9 The CA did not err in giving due course to the appeal, on both procedural and substantive grounds. A lawyer who represents a client before the trial court is presumed to represent such client before the appellate court. Section 22 of Rule 138 creates this presumption, thus:

SEC. 22. Attorney who appears in lower court presumed to represent client on appeal. An attorney who appears de parte in a case before a lower court shall be presumed to continue representing his client on appeal, unless he files a formal petition withdrawing his appearance in the appellate court. A reading of respondent Elena Garcias letter to the RTC would show that she did not actually withdraw Atty. Magbitangs authority to represent respondents in the case. The letter merely stated that there was, as yet, no agreement that they would pursue an appeal. In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the lawyers first appearance and validates the action taken by him.10 Implied ratification may take various forms, such as by silence or acquiescence, or by acceptance and retention of benefits flowing therefrom.11 Respondents silence or lack of remonstration when the case was finally elevated to the CA means that they have acquiesced to the filing of the appeal. Moreover, a lawyer is mandated to "serve his client with competence and diligence."12 Consequently, a lawyer is entreated not to neglect a legal matter entrusted to him; otherwise, his negligence in connection therewith shall render him liable.13 In light of such mandate, Atty. Magbitangs act of filing the notice of appeal without waiting for her clients to direct him to do so was understandable, if not commendable. The CA was likewise correct in holding that the case is within the jurisdiction of the RTC, not the DARAB. For the DARAB to have jurisdiction over a case, there must be a tenancy relationship between the parties. It is, therefore, essential to establish all the indispensable elements of a tenancy relationship, to wit: (1) that the parties are the landowner and the tenant or agricultural lessee; (2) that the subject matter of the relationship is an agricultural land; (3) that there is consent between the parties to the relationship; (4) that the purpose of the relationship is to bring about agricultural production; (5) that there is personal cultivation on the part of the tenant or agricultural lessee; and (6) that the harvest is shared between the landowner and the tenant or agricultural lessee.14 Basic is the rule that jurisdiction is determined by the allegations in the complaint.15 Respondents complaint did not contain any allegation that would, even in the slightest, imply that there was a tenancy relation between them and the petitioners. We are in full agreement with the following findings of the CA on this point: x x x A reading of the material averments of the complaint reveals that the principal relief sought by plaintiffs-appellants is for the nullification of the supposedly forged deed of sale which resulted in the issuance of TCT No. NT-188664 covering their 8-hectare property as well as its reconveyance, and not for the cancellation of CLOAs as claimed by defendants-appellees. Moreover, the parties herein have no tenurial, leasehold, or any other agrarian relations whatsoever that could have brought this controversy under the ambit of the agrarian reform laws. Neither were the CLOA awardees impleaded as parties in this case nor the latters entitlement thereto questioned. Hence, contrary to the findings of the RTC, the herein dispute is purely civil and not agrarian in nature falling within the exclusive jurisdiction of the trial courts. On the alleged deficiency of the appellants brief filed before the CA by the respondents, suffice it to state that the requirements in Section 13, Rule 44 are intended to aid the appellate court in arriving at a just and proper resolution of the case. Obviously, the CA found the appellants brief sufficient in form and substance as the appellate court was able to arrive at a just decision. We have repeatedly

held that technical and procedural rules are intended to help secure, not to suppress, substantial justice. A deviation from a rigid enforcement of the rules may, thus, be allowed in order to attain this prime objective for, after all, the dispensation of justice is the core reason for the existence of courts.16 WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision dated February 6, 2007 is AFFIRMED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: