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Bar Matter No.

553 June 17, 1993


MAURICIO C. ULEP, petitioner, vs. THE LEGAL CLINIC, INC.,
respondent.
R E SO L U T I O N
REGALADO, J.:
Petitioner prays this Court "to order the respondent to cease
and desist from issuing advertisements similar to or of the same
tenor as that of annexes "A" and "B" (of said petition) and to
perpetually prohibit persons or entities from making
advertisements pertaining to the exercise of the law profession
other than those allowed by law."
The advertisements complained of by herein petitioner are as
follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call: 521-0767 LEGAL 5217232,
5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr.
Victoria Bldg., UN Ave., Mla.
Annex B
GUAM DIVORCE.
DON PARKINSON

an Attorney in Guam, is giving FREE BOOKS on


Guam Divorce through The Legal Clinic beginning
Monday to Friday during office hours.
Guam divorce. Annulment of Marriage.
Immigration Problems, Visa Ext. Quota/Non-quota
Res. & Special Retiree's Visa. Declaration of
Absence. Remarriage to Filipina Fiancees.
Adoption. Investment in the Phil. US/Foreign Visa
for Filipina Spouse/Children. Call Marivic.
THE 7F Victoria Bldg. 429 UN Ave., LEGAL
Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel.
521-7232; 521-7251; 522-2041; 521-0767
It is the submission of petitioner that the advertisements above
reproduced are champterous, unethical, demeaning of the law
profession, and destructive of the confidence of the community
in the integrity of the members of the bar and that, as a member
of the legal profession, he is ashamed and offended by the said
advertisements, hence the reliefs sought in his petition as
hereinbefore quoted.
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 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 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.

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.

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.

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

1. Integrated Bar of the Philippines:


xxx xxx xxx
Notwithstanding the subtle manner by which
respondent endeavored to distinguish the two
terms, i.e., "legal support services" vis-a-vis "legal
services", common sense would readily dictate
that the same are essentially without substantial
distinction. For who could deny that document
search, evidence gathering, assistance to layman
in need of basic institutional services from
government or non-government agencies like
birth, marriage, property, or business registration,
obtaining documents like clearance, passports,
local or foreign visas, constitutes practice of law?
xxx xxx xxx

xxx xxx xxx


A. The use of the name "The Legal Clinic, Inc."
gives the impression that respondent corporation
is being operated by lawyers and that it renders
legal services.
While the respondent repeatedly denies that it
offers legal services to the public, the
advertisements in question give the impression
that respondent is offering legal services. The
Petition in fact simply assumes this to be so, as
earlier mentioned, apparently because this (is) the
effect that the advertisements have on the reading
public.
The impression created by the advertisements in
question can be traced, first of all, to the very
name being used by respondent "The Legal

Clinic, Inc." Such a name, it is respectfully


submitted connotes the rendering of legal services
for legal problems, just like a medical clinic
connotes medical services for medical problems.
More importantly, the term "Legal Clinic" connotes
lawyers, as the term medical clinic connotes
doctors.

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:

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.

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 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

Article 26. . . .

It must not be forgotten, too, that the Family Code


(defines) a marriage as follows:
Article 1. Marriage is special contract
of permanent union between a man
and woman entered into accordance
with law for the establishment of
conjugal and family life. It is the
foundation of the family and an
inviolable social institution whose
nature, consequences, and incidents
are governed by law and not subject
to stipulation, except that marriage
settlements may fix the property
relation during the marriage within
the limits provided by this Code.
By simply reading the questioned advertisements,
it is obvious that the message being conveyed is
that Filipinos can avoid the legal consequences of
a marriage celebrated in accordance with our law,
by simply going to Guam for a divorce. This is not

only misleading, but encourages, or serves to


induce, violation of Philippine law. At the very
least, this can be considered "the dark side" of
legal practice, where certain defects in Philippine
laws are exploited for the sake of profit. At worst,
this is outright malpractice.
Rule 1.02. A lawyer shall not
counsel or abet activities aimed at
defiance of the law or at lessening
confidence in the legal system.
In addition, it may also be relevant to point out that
advertisements such as that shown in Annex "A"
of the Petition, which contains a cartoon of a motor
vehicle with the words "Just Married" on its
bumper and seems to address those planning a
"secret marriage," if not suggesting a "secret
marriage," makes light of the "special contract of
permanent union," the inviolable social institution,"
which is how the Family Code describes marriage,
obviously to emphasize its sanctity and
inviolability. Worse, this particular advertisement
appears to encourage marriages celebrated in
secrecy, which is suggestive of immoral
publication of applications for a marriage license.
If the article "Rx for Legal Problems" is to be
reviewed, it can readily be concluded that the
above impressions one may gather from the
advertisements in question are accurate. The
Sharon Cuneta-Gabby Concepcion example alone
confirms what the advertisements suggest. Here it
can be seen that criminal acts are being
encouraged or committed
(a bigamous marriage in Hong Kong or Las
Vegas) with impunity simply because the
jurisdiction of Philippine courts does not extend to
the place where the crime is committed.

Even if it be assumed, arguendo, (that) the "legal


support services" respondent offers do not
constitute legal services as commonly understood,
the advertisements in question give the impression
that respondent corporation is being operated by
lawyers and that it offers legal services, as earlier
discussed. Thus, the only logical consequence is
that, in the eyes of an ordinary newspaper reader,
members of the bar themselves are encouraging
or inducing the performance of acts which are
contrary to law, morals, good customs and the
public good, thereby destroying and demeaning
the integrity of the Bar.
xxx xxx xxx
It is respectfully submitted that respondent should
be enjoined from causing the publication of the
advertisements in question, or any other
advertisements similar thereto. It is also submitted
that respondent should be prohibited from further
performing or offering some of the services it
presently offers, or, at the very least, from offering
such services to the public in general.
The IBP is aware of the fact that providing
computerized legal research, electronic data
gathering, storage and retrieval, standardized
legal forms, investigators for gathering of
evidence, and like services will greatly benefit the
legal profession and should not be stifled but
instead encouraged. However, when the conduct
of such business by non-members of the Bar
encroaches upon the practice of law, there can be
no choice but to prohibit such business.
Admittedly, many of the services involved in the
case at bar can be better performed by specialists
in other fields, such as computer experts, who by

reason of their having devoted time and effort


exclusively to such field cannot fulfill the exacting
requirements for admission to the Bar. To prohibit
them from "encroaching" upon the legal profession
will deny the profession of the great benefits and
advantages of modern technology. Indeed, a
lawyer using a computer will be doing better than
a lawyer using a typewriter, even if both are
(equal) in skill.
Both the Bench and the Bar, however, should be
careful not to allow or tolerate the illegal practice
of law in any form, not only for the protection of
members of the Bar but also, and more
importantly, for the protection of the public.
Technological development in the profession may
be encouraged without tolerating, but instead
ensuring prevention of illegal practice.
There might be nothing objectionable if
respondent is allowed to perform all of its services,
but only if such services are made available
exclusively to members of the Bench and Bar.
Respondent would then be offering technical
assistance, not legal services. Alternatively, the
more difficult task of carefully distinguishing
between which service may be offered to the
public in general and which should be made
available exclusively to members of the Bar may
be undertaken. This, however, may require further
proceedings because of the factual considerations
involved.

prohibited from simply disseminating information


regarding such matters, it must be required to
include, in the information given, a disclaimer that
it is not authorized to practice law, that certain
course of action may be illegal under Philippine
law, that it is not authorized or capable of
rendering a legal opinion, that a lawyer should be
consulted before deciding on which course of
action to take, and that it cannot recommend any
particular lawyer without subjecting itself to
possible sanctions for illegal practice of law.
If respondent is allowed to advertise, advertising
should be directed exclusively at members of the
Bar, with a clear and unmistakable disclaimer that
it is not authorized to practice law or perform legal
services.
The benefits of being assisted by paralegals
cannot be ignored. But nobody should be allowed
to represent himself as a "paralegal" for profit,
without such term being clearly defined by rule or
regulation, and without any adequate and effective
means of regulating his activities. Also, law
practice in a corporate form may prove to be
advantageous to the legal profession, but before
allowance of such practice may be considered, the
corporation's Article of Incorporation and By-laws
must conform to each and every provision of the
Code of Professional Responsibility and the Rules
of Court. 5
2. Philippine Bar Association:

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

xxx xxx xxx.


Respondent asserts that it "is not engaged in the
practice of law but engaged in giving legal support
services to lawyers and laymen, through

experienced paralegals, with the use of modern


computers and electronic machines" (pars. 2 and
3, Comment). This is absurd. Unquestionably,
respondent's acts of holding out itself to the public
under the trade name "The Legal Clinic, Inc.," and
soliciting employment for its enumerated services
fall within the realm of a practice which thus yields
itself to the regulatory powers of the Supreme
Court. For respondent to say that it is merely
engaged in paralegal work is to stretch credulity.
Respondent's own commercial advertisement
which announces a certain Atty. Don Parkinson to
be handling the fields of law belies its pretense.
From all indications, respondent "The Legal Clinic,
Inc." is offering and rendering legal services
through its reserve of lawyers. It has been held
that the practice of law is not limited to the conduct
of cases in court, but includes drawing of deeds,
incorporation, rendering opinions, and advising
clients as to their legal right and then take them to
an attorney and ask the latter to look after their
case in court See Martin, Legal and Judicial
Ethics, 1984 ed., p. 39).
It is apt to recall that only natural persons can
engage in the practice of law, and such limitation
cannot be evaded by a corporation employing
competent lawyers to practice for it. Obviously, this
is the scheme or device by which respondent "The
Legal Clinic, Inc." holds out itself to the public and
solicits employment of its legal services. It is an
odious vehicle for deception, especially so when
the public cannot ventilate any grievance for
malpractice against the business conduit.
Precisely, the limitation of practice of law to
persons who have been duly admitted as
members of the Bar (Sec. 1, Rule 138, Revised
Rules of Court) is to subject the members to the
discipline of the Supreme Court. Although

respondent uses its business name, the persons


and the lawyers who act for it are subject to court
discipline. The practice of law is not a profession
open to all who wish to engage in it nor can it be
assigned to another (See 5 Am. Jur. 270). It is a
personal right limited to persons who have
qualified themselves under the law. It follows that
not only respondent but also all the persons who
are acting for respondent are the persons
engaged in unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in
answer to the issues stated herein, are wit:
1. The Legal Clinic is engaged in the practice of
law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only
unethical, but also misleading and patently
immoral; and
4. The Honorable Supreme Court has the power to
supress and punish the Legal Clinic and its
corporate officers for its unauthorized practice of
law and for its unethical, misleading and immoral
advertising.
xxx xxx xxx
Respondent posits that is it not engaged in the
practice of law. It claims that it merely renders
"legal support services" to answers, litigants and
the general public as enunciated in the Primary
Purpose Clause of its Article(s) of Incorporation.
(See pages 2 to 5 of Respondent's Comment). But

its advertised services, as enumerated above,


clearly and convincingly show that it is indeed
engaged in law practice, albeit outside of court.
As advertised, it offers the general public its
advisory services on Persons and Family
Relations Law, particularly regarding foreign
divorces, annulment of marriages, secret
marriages, absence and adoption; Immigration
Laws, particularly on visa related problems,
immigration problems; the Investments Law of the
Philippines and such other related laws.
Its advertised services unmistakably require the
application of the aforesaid law, the legal
principles and procedures related thereto, the
legal advices based thereon and which activities
call for legal training, knowledge and experience.
Applying the test laid down by the Court in the
aforecited Agrava Case, the activities of
respondent fall squarely and are embraced in what
lawyers and laymen equally term as "the practice
of law." 7
4. U.P. Women Lawyers' Circle:
In resolving, the issues before this Honorable
Court, paramount consideration should be given to
the protection of the general public from the
danger of being exploited by unqualified persons
or entities who may be engaged in the practice of
law.
At present, becoming a lawyer requires one to
take a rigorous four-year course of study on top of
a four-year bachelor of arts or sciences course
and then to take and pass the bar examinations.
Only then, is a lawyer qualified to practice law.

While the use of a paralegal is sanctioned in many


jurisdiction as an aid to the administration of
justice, there are in those jurisdictions, courses of
study and/or standards which would qualify these
paralegals to deal with the general public as such.
While it may now be the opportune time to
establish these courses of study and/or standards,
the fact remains that at present, these do not exist
in the Philippines. In the meantime, this Honorable
Court may decide to make measures to protect the
general public from being exploited by those who
may be dealing with the general public in the guise
of being "paralegals" without being qualified to do
so.
In the same manner, the general public should
also be protected from the dangers which may be
brought about by advertising of legal services.
While it appears that lawyers are prohibited under
the present Code of Professional Responsibility
from advertising, it appears in the instant case that
legal services are being advertised not by lawyers
but by an entity staffed by "paralegals." Clearly,
measures should be taken to protect the general
public from falling prey to those who advertise
legal services without being qualified to offer such
services. 8
A perusal of the questioned advertisements of
Respondent, however, seems to give the
impression that information regarding validity of
marriages, divorce, annulment of marriage,
immigration, visa extensions, declaration of
absence, adoption and foreign investment, which
are in essence, legal matters , will be given to
them if they avail of its services. The Respondent's
name The Legal Clinic, Inc. does not help
matters. It gives the impression again that
Respondent will or can cure the legal problems

brought to them. Assuming that Respondent is, as


claimed, staffed purely by paralegals, it also gives
the misleading impression that there are lawyers
involved in The Legal Clinic, Inc., as there are
doctors in any medical clinic, when only
"paralegals" are involved in The Legal Clinic, Inc.
Respondent's allegations are further belied by the
very admissions of its President and majority
stockholder, Atty. Nogales, who gave an insight on
the structure and main purpose of Respondent
corporation in the aforementioned "Starweek"
article." 9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly
advertisements to solicit cases for the purpose of
gain which, as provided for under the above cited
law, (are) illegal and against the Code of
Professional Responsibility of lawyers in this
country.
Annex "A" of the petition is not only illegal in that it
is an advertisement to solicit cases, but it is illegal
in that in bold letters it announces that the Legal
Clinic, Inc., could work out/cause the celebration
of a secret marriage which is not only illegal but
immoral in this country. While it is advertised that
one has to go to said agency and pay P560 for a
valid marriage it is certainly fooling the public for
valid marriages in the Philippines are solemnized
only by officers authorized to do so under the law.
And to employ an agency for said purpose of
contracting marriage is not necessary.
No amount of reasoning that in the USA, Canada
and other countries the trend is towards allowing
lawyers to advertise their special skills to enable

people to obtain from qualified practitioners legal


services for their particular needs can justify the
use of advertisements such as are the subject
matter of the petition, for one (cannot) justify an
illegal act even by whatever merit the illegal act
may serve. The law has yet to be amended so that
such act could become justifiable.
We submit further that these advertisements that
seem to project that secret marriages and divorce
are possible in this country for a fee, when in fact it
is not so, are highly reprehensible.
It would encourage people to consult this clinic
about how they could go about having a secret
marriage here, when it cannot nor should ever be
attempted, and seek advice on divorce, where in
this country there is none, except under the Code
of Muslim Personal Laws in the Philippines. It is
also against good morals and is deceitful because
it falsely represents to the public to be able to do
that which by our laws cannot be done (and) by
our Code of Morals should not be done.
In the case (of) In re Taguda, 53 Phil. 37, the
Supreme Court held that solicitation for clients by
an attorney by circulars of advertisements, is
unprofessional, and offenses of this character
justify permanent elimination from the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxx
1.7 That entities admittedly not engaged in the
practice of law, such as management consultancy
firms or travel agencies, whether run by lawyers or
not, perform the services rendered by Respondent
does not necessarily lead to the conclusion that

Respondent is not unlawfully practicing law. In the


same vein, however, the fact that the business of
respondent (assuming it can be engaged in
independently of the practice of law) involves
knowledge of the law does not necessarily make
respondent guilty of unlawful practice of law.
. . . . Of necessity, no one . . . . acting
as a consultant can render effective
service unless he is familiar with
such statutes and regulations. He
must be careful not to suggest a
course of conduct which the law
forbids. It seems . . . .clear that (the
consultant's) knowledge of the law,
and his use of that knowledge as a
factor in determining what measures
he shall recommend, do not
constitute the practice of law . . . . It
is not only presumed that all men
know the law, but it is a fact that
most men have considerable
acquaintance with broad features of
the law . . . . Our knowledge of the
law accurate or inaccurate
moulds our conduct not only when
we are acting for ourselves, but
when we are serving others.
Bankers, liquor dealers and laymen
generally possess rather precise
knowledge of the laws touching their
particular business or profession. A
good example is the architect, who
must be familiar with zoning, building
and fire prevention codes, factory
and tenement house statutes, and
who draws plans and specification in
harmony with the law. This is not
practicing law.

But suppose the architect, asked by


his client to omit a fire tower, replies
that it is required by the statute. Or
the industrial relations expert cites, in
support of some measure that he
recommends, a decision of the
National Labor Relations Board. Are
they practicing law? In my opinion,
they are not, provided no separate
fee is charged for the legal advice or
information, and the legal question is
subordinate and incidental to a major
non-legal problem.
It is largely a matter of degree and of
custom.
If it were usual for one intending to
erect a building on his land to
engage a lawyer to advise him and
the architect in respect to the
building code and the like, then an
architect who performed this function
would probably be considered to be
trespassing on territory reserved for
licensed attorneys. Likewise, if the
industrial relations field had been
pre-empted by lawyers, or custom
placed a lawyer always at the elbow
of the lay personnel man. But this is
not the case. The most important
body of the industrial relations
experts are the officers and business
agents of the labor unions and few of
them are lawyers. Among the larger
corporate employers, it has been the
practice for some years to delegate
special responsibility in employee
matters to a management group

chosen for their practical knowledge


and skill in such matter, and without
regard to legal thinking or lack of it.
More recently, consultants like the
defendants have the same service
that the larger employers get from
their own specialized staff.
The handling of industrial relations is
growing into a recognized profession
for which appropriate courses are
offered by our leading universities.
The court should be very cautious
about declaring [that] a widespread,
well-established method of
conducting business is unlawful, or
that the considerable class of men
who customarily perform a certain
function have no right to do so, or
that the technical education given by
our schools cannot be used by the
graduates in their business.
In determining whether a man is
practicing law, we should consider
his work for any particular client or
customer, as a whole. I can imagine
defendant being engaged primarily
to advise as to the law defining his
client's obligations to his employees,
to guide his client's obligations to his
employees, to guide his client along
the path charted by law. This, of
course, would be the practice of the
law. But such is not the fact in the
case before me. Defendant's
primarily efforts are along economic
and psychological lines. The law only
provides the frame within which he

must work, just as the zoning code


limits the kind of building the limits
the kind of building the architect may
plan. The incidental legal advice or
information defendant may give,
does not transform his activities into
the practice of law. Let me add that
if, even as a minor feature of his
work, he performed services which
are customarily reserved to
members of the bar, he would be
practicing law. For instance, if as part
of a welfare program, he drew
employees' wills.
Another branch of defendant's work
is the representations of the
employer in the adjustment of
grievances and in collective
bargaining, with or without a
mediator. This is not per se the
practice of law. Anyone may use an
agent for negotiations and may
select an agent particularly skilled in
the subject under discussion, and
the person appointed is free to
accept the employment whether or
not he is a member of the bar. Here,
however, there may be an exception
where the business turns on a
question of law. Most real estate
sales are negotiated by brokers who
are not lawyers. But if the value of
the land depends on a disputed
right-of-way and the principal role of
the negotiator is to assess the
probable outcome of the dispute and
persuade the opposite party to the
same opinion, then it may be that

only a lawyer can accept the


assignment. Or if a controversy
between an employer and his men
grows from differing interpretations of
a contract, or of a statute, it is quite
likely that defendant should not
handle it. But I need not reach a
definite conclusion here, since the
situation is not presented by the
proofs.
Defendant also appears to represent
the employer before administrative
agencies of the federal government,
especially before trial examiners of
the National Labor Relations Board.
An agency of the federal
government, acting by virtue of an
authority granted by the Congress,
may regulate the representation of
parties before such agency. The
State of New Jersey is without power
to interfere with such determination
or to forbid representation before the
agency by one whom the agency
admits. The rules of the National
Labor Relations Board give to a
party the right to appear in person, or
by counsel, or by other
representative. Rules and
Regulations, September 11th, 1946,
S. 203.31. 'Counsel' here means a
licensed attorney, and ther
representative' one not a lawyer. In
this phase of his work, defendant
may lawfully do whatever the Labor
Board allows, even arguing
questions purely legal. (Auerbacher
v. Wood, 53 A. 2d 800, cited in

Statsky, Introduction to Paralegalism


[1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a
person engaged in a lawful calling (which may
involve knowledge of the law) is not engaged in
the practice of law provided that:
(a) The legal question is subordinate and
incidental to a major non-legal problem;.
(b) The services performed are not customarily
reserved to members of the bar; .
(c) No separate fee is charged for the legal advice
or information.
All these must be considered in relation to the
work for any particular client as a whole.
1.9. If the person involved is both lawyer and nonlawyer, 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 nonlawyer, such as the Legal Clinic, renders such
services then it is engaged in the unauthorized
practice of law.
1.11. The Legal Clinic also appears to give
information on divorce, absence, annulment of
marriage and visas (See Annexes "A" and "B"
Petition). Purely giving informational materials may
not constitute of law. The business is similar to that
of a bookstore where the customer buys materials
on the subject and determines on the subject and
determines by himself what courses of action to
take.
It is not entirely improbable, however, that aside
from purely giving information, the Legal Clinic's
paralegals may apply the law to the particular
problem of the client, and give legal advice. Such
would constitute unauthorized practice of law.
It cannot be claimed that the
publication of a legal text which
publication of a legal text which
purports to say what the law is
amount to legal practice. And the
mere fact that the principles or rules
stated in the text may be accepted
by a particular reader as a solution to
his problem does not affect this. . . . .
Apparently it is urged that the
conjoining of these two, that is, the
text and the forms, with advice as to
how the forms should be filled out,
constitutes the unlawful practice of
law. But that is the situation with
many approved and accepted texts.
Dacey's book is sold to the public at
large. There is no personal contact

or relationship with a particular


individual. Nor does there exist that
relation of confidence and trust so
necessary to the status of attorney
and client. THIS IS THE ESSENTIAL
OF LEGAL PRACTICE THE
REPRESENTATION AND ADVISING
OF A PARTICULAR PERSON IN A
PARTICULAR SITUATION. At most
the book assumes to offer general
advice on common problems, and
does not purport to give personal
advice on a specific problem peculiar
to a designated or readily identified
person. Similarly the defendant's
publication does not purport to give
personal advice on a specific
problem peculiar to a designated or
readily identified person in a
particular situation in their
publication and sale of the kits, such
publication and sale did not
constitutes the unlawful practice of
law . . . . There being no legal
impediment under the statute to the
sale of the kit, there was no proper
basis for the injunction against
defendant maintaining an office for
the purpose of selling to persons
seeking a divorce, separation,
annulment or separation agreement
any printed material or writings
relating to matrimonial law or the
prohibition in the memorandum of
modification of the judgment against
defendant having an interest in any
publishing house publishing his
manuscript on divorce and against
his having any personal contact with

any prospective purchaser. The


record does fully support, however,
the finding that for the change of $75
or $100 for the kit, the defendant
gave legal advice in the course of
personal contacts concerning
particular problems which might
arise in the preparation and
presentation of the purchaser's
asserted matrimonial cause of action
or pursuit of other legal remedies
and assistance in the preparation of
necessary documents (The
injunction therefore sought to) enjoin
conduct constituting the practice of
law, particularly with reference to the
giving of advice and counsel by the
defendant relating to specific
problems of particular individuals in
connection with a divorce,
separation, annulment of separation
agreement sought and should be
affirmed. (State v. Winder, 348, NYS
2D 270 [1973], cited in Statsky,
supra at p. 101.).
1.12. Respondent, of course, states that its
services are "strictly non-diagnostic, non-advisory.
"It is not controverted, however, that if the services
"involve giving legal advice or counselling," such
would constitute practice of law (Comment, par.
6.2). It is in this light that FIDA submits that a
factual inquiry may be necessary for the judicious
disposition of this case.
xxx xxx xxx
2.10. Annex "A" may be ethically objectionable in
that it can give the impression (or perpetuate the

wrong notion) that there is a secret marriage. With


all the solemnities, formalities and other requisites
of marriages (See Articles 2, et seq., Family
Code), no Philippine marriage can be secret.
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:

. . . . for valuable consideration engages in the


business of advising person, firms, associations or
corporations as to their right under the law, or
appears in a representative capacity as an
advocate in proceedings, pending or prospective,
before any court, commissioner, referee, board,
body, committee, or commission constituted by law
or authorized to settle controversies and there, in
such representative capacity, performs any act or
acts for the purpose of obtaining or defending the
rights of their clients under the law. Otherwise
stated, one who, in a representative capacity,
engages in the business of advising clients as to
their rights under the law, or while so engaged
performs any act or acts either in court or outside
of court for that purpose, is engaged in the
practice of law. (State ex. rel. Mckittrick v. C.S.
Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852).

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:

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
money-changers of old defiled the temple of
Jehovah. "The most worthy and effective
advertisement possible, even for a young
lawyer, . . . . is the establishment of a well-merited
reputation for professional capacity and fidelity to
trust. This cannot be forced but must be the
outcome of character and conduct." (Canon 27,
Code of Ethics.).
We repeat, the canon of the profession tell us that the best
advertising possible for a lawyer is a well-merited reputation for
professional capacity and fidelity to trust, which must be earned
as the outcome of character and conduct. Good and efficient
service to a client as well as to the community has a way of
publicizing itself and catching public attention. That publicity is a
normal by-product of effective service which is right and proper.
A good and reputable lawyer needs no artificial stimulus to
generate it and to magnify his success. He easily sees the
difference between a normal by-product of able service and the
unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation are
prohibited. The canons of the profession enumerate exceptions
to the rule against advertising or solicitation and define the
extent to which they may be undertaken. The exceptions are of
two broad categories, namely, those which are expressly
allowed and those which are necessarily implied from the
restrictions. 41
The first of such exceptions is the publication in reputable law
lists, in a manner consistent with the standards of conduct
imposed by the canons, of brief biographical and informative
data. "Such data must not be misleading and may include only a
statement of the lawyer's name and the names of his
professional associates; addresses, telephone numbers, cable
addresses; branches of law practiced; date and place of birth
and admission to the bar; schools attended with dates of

graduation, degrees and other educational distinction; public or


quasi-public offices; posts of honor; legal authorships; legal
teaching positions; membership and offices in bar associations
and committees thereof, in legal and scientific societies and
legal fraternities; the fact of listings in other reputable law lists;
the names and addresses of references; and, with their written
consent, the names of clients regularly represented." 42
The law list must be a reputable law list published primarily for
that purpose; it cannot be a mere supplemental feature of a
paper, magazine, trade journal or periodical which is published
principally for other purposes. For that reason, a lawyer may not
properly publish his brief biographical and informative data in a
daily paper, magazine, trade journal or society program. Nor
may a lawyer permit his name to be published in a law list the
conduct, management or contents of which are calculated or
likely to deceive or injure the public or the bar, or to lower the
dignity or standing of the profession. 43
The use of an ordinary simple professional card is also
permitted. The card may contain only a statement of his name,
the name of the law firm which he is connected with, address,
telephone number and special branch of law practiced. The
publication of a simple announcement of the opening of a law
firm or of changes in the partnership, associates, firm name or
office address, being for the convenience of the profession, is
not objectionable. He may likewise have his name listed in a
telephone directory but not under a designation of special
branch of law. 44
Verily, taking into consideration the nature and contents of the
advertisements for which respondent is being taken to task,
which even includes a quotation of the fees charged by said
respondent corporation for services rendered, we find and so
hold that the same definitely do not and conclusively cannot fall
under any of the above-mentioned exceptions.
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.

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.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino,


Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur

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

July 30, 1979


PETITION FOR AUTHORITY TO CONTINUE USE OF THE
FIRM NAME "SYCIP, SALAZAR, FELICIANO, HERNANDEZ &
CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P.
FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R.
CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES. JR.,
ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL
A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C.
IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG,
ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO
CONTINUE USE OF THE FIRM NAME "OZAETA, ROMULO,
DE LEON, MABANTA & REYES." RICARDO J. ROMULO,
BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA,
REYES, JESUS S. J. SAYOC, EDUARDO DE LOS ANGELES,
and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:+.wph!1

Petitioners base their petitions on the following arguments:

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 wellpublicized 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 lawyerpredecessor. 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.
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
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
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. 25
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.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and
De Castro, JJ., concur
Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for
granting them, seven of the Justices being of the contrary view,
as explained in the plurality opinion of Justice Ameurfina
Melencio-Herrera. It is out of delicadeza that the undersigned
did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo
started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing,
being the father-in-law of the undersigned, and the most junior
partner then, Norberto J. Quisumbing, being his brother- in-law.
For the record, the undersigned wishes to invite the attention of
all concerned, and not only of petitioners, to the last sentence of
the opinion of Justice Ameurfina Melencio-Herrera: 'Those
names [Sycip and Ozaeta] may, however, be included in the
listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar,
Feliciano, Hernandez & Castillo, in their petition of June 10,
1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May
5, 1975 (May he rest in peace). He was the founder of the firm
which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm,
Ozaeta, Romulo, De Leon, Mabanta & Reyes, in their petition of
August 13, 1976, prayed that they be allowed to continue using
the said firm name notwithstanding the death of two partners,
former Justice Roman Ozaeta and his son, Herminio, on May 1,
1972 and February 14, 1976, respectively.

partnership name, is cited to justify the petitions. Also invoked is


the canon that the continued use by a law firm of the name of a
deceased partner, "when permissible by local custom, is not
unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the
condition that it be indicated in the letterheads of the two firms
(as the case may be) that Alexander Sycip, former Justice
Ozaeta and Herminio Ozaeta are dead or the period when they
served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of
the names of their deceased founders is to retain the clients
who had customarily sought the legal services of Attorneys
Sycip and Ozaeta and to benefit from the goodwill attached to
the names of those respected and esteemed law practitioners.
That is a legitimate motivation.
The retention of their names is not illegal per se. That practice
was followed before the war by the law firm of James Ross.
Notwithstanding the death of Judge Ross the founder of the law
firm of Ross, Lawrence, Selph and Carrascoso, his name was
retained in the firm name with an indication of the year when he
died. No one complained that the retention of the name of
Judge Ross in the firm name was illegal or unethical.

# Separate Opinions
FERNANDO, C.J., concurring:

They alleged that the said law firm was a continuation of the
Ozaeta Law Office which was established in 1957 by Justice
Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the
partnership of the name of a deceased partner as part of the

The petitions are denied, as there are only four votes for
granting them, seven of the Justices being of the contrary view,
as explained in the plurality opinion of Justice Ameurfina
Melencio-Herrera. It is out of delicadeza that the undersigned
did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo

started with the partnership of Quisumbing, Sycip, and


Quisumbing, the senior partner, the late Ramon Quisumbing,
being the father-in-law of the undersigned, and the most junior
partner then, Norberto J. Quisumbing, being his brother- in-law.
For the record, the undersigned wishes to invite the attention of
all concerned, and not only of petitioners, to the last sentence of
the opinion of Justice Ameurfina Melencio-Herrera: 'Those
names [Sycip and Ozaeta] may, however, be included in the
listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar,
Feliciano, Hernandez & Castillo, in their petition of June 10,
1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May
5, 1975 (May he rest in peace). He was the founder of the firm
which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm,
Ozaeta, Romulo, De Leon, Mabanta & Reyes, in their petition of
August 13, 1976, prayed that they be allowed to continue using
the said firm name notwithstanding the death of two partners,
former Justice Roman Ozaeta and his son, Herminio, on May 1,
1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the
Ozaeta Law Office which was established in 1957 by Justice
Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the
partnership of the name of a deceased partner as part of the
partnership name, is cited to justify the petitions. Also invoked is
the canon that the continued use by a law firm of the name of a
deceased partner, "when permissible by local custom, is not
unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).

I am of the opinion that the petition may be granted with the


condition that it be indicated in the letterheads of the two firms
(as the case may be) that Alexander Sycip, former Justice
Ozaeta and Herminio Ozaeta are dead or the period when they
served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of
the names of their deceased founders is to retain the clients
who had customarily sought the legal services of Attorneys
Sycip and Ozaeta and to benefit from the goodwill attached to
the names of those respected and esteemed law practitioners.
That is a legitimate motivation.
The retention of their names is not illegal per se. That practice
was followed before the war by the law firm of James Ross.
Notwithstanding the death of Judge Ross the founder of the law
firm of Ross, Lawrence, Selph and Carrascoso, his name was
retained in the firm name with an indication of the year when he
died. No one complained that the retention of the name of
Judge Ross in the firm name was illegal or unethical.

Adm. Case No. 2131 May 10, 1985


ADRIANO E. DACANAY, complainant
vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA.
GUERRERO, VICENTE A. TORRES, RAFAEL E.
EVANGELISTA, JR., ROMEO L. SALONGA, JOSE R.
SANDEJAS, LUCAS M. NUNAG, J. CLARO TESORO,
NATIVIDAD B. KWAN and JOSE A. CURAMMENG, JR.,
respondents.
Adriano E. Dacanay for and his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for
respondents.

McKenzie is not authorized to practise law here. (See Ruben E.


Agpalo, Legal Ethics, 1983 Ed., p. 115.)
AQUINO, J.:
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 &

WHEREFORE, the respondents are enjoined from practising


law under the firm name Baker & McKenzie.

A.C. No. 3944

July 27, 2007

LEA P. PAYOD, Petitioner,


vs.
ATTY. ROMEO P. METILA, Respondent.
RESOLUTION
CARPIO MORALES, J.:
Lea P. Payod (Lea) charges Atty. Romeo P. Metila (respondent)
with "willful neglect and gross misconduct" in connection with
this Courts dismissal of her petition in G.R. No. 102764, "Lea P.
Payod v. Court of Appeals," by Resolution dated February 3,
1992, reading:
Acting on the pleadings filed in this case, the Court resolved: to
DENY: (a) petitioners second motion for extension of time to file
petition for review on certiorari, as petitioners first motion for
extension was denied in the resolution of December 16, 1991
for failure to comply with the requirement of No. two (2) of
Revised Circular 1-88. Moreover, the said second motion for
extension still fails to comply with the same requirement of
Revised Circular 1-88, and (b) the petition itself, for having been
filed late and for failure to comply with requirement No. four (4)
of Revised Circular 1-88, and for failure to submit the
certification required under Circular 28-91 on forum shopping. 1
Petitioner submits that:

It is difficult to believe that practicing lawyers cannot submit very


important documents considered regular pieces of information in
their practice of law leading to default with serious
consequences prejudicial to the client if the said counsel is not
ill motivated or not due to gross misconduct and willful
negligence inimical to the best interest of the client.
Together with my mother Mrs. Restituta Pelio and my sister
Mrs. Portia P. Velasco, I have found difficulty making follow-up
with Atty. Romeo P. Metila for him to comply with the submission
of required documents to the Supreme Court because of his
unreasonable excuses for non-performance despite our
persistent follow-ups, payments of expenses and attorneys
fees, and willingness to supply him with materials and needed
facts. More often, we got lame excuse[s] and had his no-shows
in appointed meetings at the Supreme Court. 2
Respondent denies the charges and gives his side of the case
as follows:
The case was referred to him by Leas mother on November 29,
1991, six days before the period to perfect an appeal to this
Court expired, without supplying him with any document bearing
on the case other than the Court of Appeals resolution denying
Leas motion for reconsideration.3
He thus told Leas mother that he would only file a motion to
stay the running of the prescriptive period of appeal and advised
her to look for another lawyer who could assist her in getting the
complete certified records of the case from the Court of Appeals
and in filing a petition for review with this Court.
Neither Lea nor her mother communicated with him, however,
until January 21, 1992, forcing him to finance and defray all the
expenses for the initiation of the appeal.
He concludes there was no attorney-client relationship between
him and Lea, there being no Special Power of Attorney
authorizing her mother to hire him as a lawyer in her behalf. 4

After investigation, the Integrated Bar of the Philippines (IBP)


Committee on Bar Discipline, to which the complaint was
referred, found respondent guilty of simple negligence and
recommended that he be seriously admonished and required to
undergo three units of Mandatory Continuing Legal Education in
Remedial law for his failure to update himself with the
developments in the legal profession and for the cavalier
manner by which he denied the existence of an attorney-client
relationship when one in fact existed.5
The IBP Board of Directors adopted the Report and
Recommendation of the Investigating Commissioner that
respondent be seriously admonished.
This Court upholds the finding and recommendation of the IBP.
In failing to comply with the requirements in initiating
complainants appeal before this Court in G.R. No. 102764 even
after his attention to it was called by this Court, respondent fell
short of the standards required in the Canon of Professional
Responsibility for a lawyer to "keep abreast of legal
developments"6 and "serve his client with competence and
diligence."7
That Leas mother did not have a Special Power of Attorney to
hire respondent on Leas behalf is immaterial, given that he
actually initiated the appeal, albeit unsuccessfully.
It need not be underlined that a lawyer who accepts a case
must give it his full attention, diligence, skill, and competence, 8
and his negligence in connection therewith renders him liable. 9
The circumstances attendant to respondents initial handle of
Leas case do not warrant a finding of gross negligence, or
sheer absence of real effort on his part to defend her cause. 10
1avvphi1
Respondent accepted Leas case upon her mothers insistence,
with only six days for him to file a petition for review before this

Court, and without her furnishing him with complete records, not
to mention money, for the reproduction of the needed
documents. Despite these constraints, respondent exerted
efforts, albeit lacking in care, to defend his clients cause by
filing two motions for extension of time to file petition. And he in
fact filed the petition within the time he requested, 11 thus
complying with the guideline of this Court that lawyers should at
least file their pleadings within the extended period requested
should their motions for extension of time to file a pleading be
unacted upon.12
Neither do the circumstances warrant a finding that respondent
was motivated by ill-will. In the absence of proof to the contrary,
a lawyer enjoys a presumption of good faith in his favor.13
WHEREFORE, respondent, Atty. Romeo Metila, is SERIOUSLY
ADMONISHED with WARNING that similar charges will be
severely dealt with.

THE SANDIGANBAYAN and THE REPUBLIC OF THE


PHILIPPINES, respondents.

KAPUNAN, J.:
These case touch the very cornerstone of every State's judicial
system, upon which the workings of the contentious and
adversarial system in the Philippine legal process are based
the sanctity of fiduciary duty in the client-lawyer relationship.
The fiduciary duty of a counsel and advocate is also what
makes the law profession a unique position of trust and
confidence, which distinguishes it from any other calling. In this
instance, we have no recourse but to uphold and strengthen the
mantle of protection accorded to the confidentiality that
proceeds from the performance of the lawyer's duty to his client.
The facts of the case are undisputed.

G.R. No. 105938 September 20, 1996


TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V.
CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN,
VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, First Division,
REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT,
and RAUL S. ROCO, respondents.
G.R. No. 108113 September 20, 1996
PARAJA G. HAYUDINI, petitioner,
vs.

The matters raised herein are an offshoot of the institution of the


Complaint on July 31, 1987 before the Sandiganbayan by the
Republic of the Philippines, through the Presidential
Commission on Good Government against Eduardo M.
Cojuangco, Jr., as one of the principal defendants, for the
recovery of alleged ill-gotten wealth, which includes shares of
stocks in the named corporations in PCGG Case No. 33 (Civil
Case No. 0033), entitled "Republic of the Philippines versus
Eduardo Cojuangco, et al." 1
Among the dependants named in the case are herein petitioners
Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
Escueta and Paraja G. Hayudini, and herein private respondent
Raul S. Roco, who all were then partners of the law firm Angara,
Abello, Concepcion, Regala and Cruz Law Offices (hereinafter
referred to as the ACCRA Law Firm). ACCRA Law Firm
performed legal services for its clients, which included, among
others, the organization and acquisition of business

associations and/or organizations, with the correlative and


incidental services where its members acted as incorporators,
or simply, as stockholders. More specifically, in the performance
of these services, the members of the law firm delivered to its
client documents which substantiate the client's equity holdings,
i.e., stock certificates endorsed in blank representing the shares
registered in the client's name, and a blank deed of trust or
assignment covering said shares. In the course of their dealings
with their clients, the members of the law firm acquire
information relative to the assets of clients as well as their
personal and business circumstances. As members of the
ACCRA Law Firm, petitioners and private respondent Raul Roco
admit that they assisted in the organization and acquisition of
the companies included in Civil Case No. 0033, and in keeping
with the office practice, ACCRA lawyers acted as nomineesstockholders of the said corporations involved in sequestration
proceedings. 2
On August 20, 1991, respondent Presidential Commission on
Good Government (hereinafter referred to as respondent
PCGG) filed a "Motion to Admit Third Amended Complaint" and
"Third Amended Complaint" which excluded private respondent
Raul S. Roco from the complaint in PCGG Case No. 33 as
party-defendant. 3 Respondent PCGG based its exclusion of
private respondent Roco as party-defendant on his undertaking
that he will reveal the identity of the principal/s for whom he
acted as nominee/stockholder in the companies involved in
PCGG Case No. 33. 4
Petitioners were included in the Third Amended Complaint on
the strength of the following allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo
J. Angara, Jose C. Concepcion, Teodoro Regala,
Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U.
Escueta, Paraja G. Hayudini and Raul Roco of the
Angara Concepcion Cruz Regala and Abello law
offices (ACCRA) plotted, devised, schemed
conspired and confederated with each other in

setting up, through the use of the coconut levy


funds, the financial and corporate framework and
structures that led to the establishment of UCPB,
UNICOM, COCOLIFE, COCOMARK, CIC, and
more than twenty other coconut levy funded
corporations, including the acquisition of San
Miguel Corporation shares and its
institutionalization through presidential directives
of the coconut monopoly. Through insidious
means and machinations, ACCRA, being the
wholly-owned investment arm, ACCRA
Investments Corporation, became the holder of
approximately fifteen million shares representing
roughly 3.3% of the total outstanding capital stock
of UCPB as of 31 March 1987. This ranks ACCRA
Investments Corporation number 44 among the
top 100 biggest stockholders of UCPB which has
approximately 1,400,000 shareholders. On the
other hand, corporate books show the name
Edgardo J. Angara as holding approximately
3,744 shares as of February, 1984. 5
In their answer to the Expanded Amended Complaint,
petitioners ACCRA lawyers alleged that:
4.4 Defendants-ACCRA lawyers' participation in
the acts with which their codefendants are
charged, was in furtherance of legitimate
lawyering.
4.4.1 In the course of rendering
professional and legal services to
clients, defendants-ACCRA lawyers,
Jose C. Concepcion, Teodoro D.
Regala, Rogelio A. Vinluan and
Eduardo U. Escueta, became
holders of shares of stock in the
corporations listed under their
respective names in Annex "A" of the

expanded Amended Complaint as


incorporating or acquiring
stockholders only and, as such, they
do not claim any proprietary interest
in the said shares of stock.
4.5 Defendant ACCRA-lawyer Avelino V. Cruz was
one of the incorporators in 1976 of Mermaid
Marketing Corporation, which was organized for
legitimate business purposes not related to the
allegations of the expanded Amended Complaint.
However, he has long ago transferred any material
interest therein and therefore denies that the
"shares" appearing in his name in Annex "A" of the
expanded Amended Complaint are his assets. 6
Petitioner Paraja Hayudini, who had separated from ACCRA law
firm, filed a separate answer denying the allegations in the
complaint implicating him in the alleged ill-gotten wealth. 7
Petitioners ACCRA lawyers subsequently filed their "COMMENT
AND/OR OPPOSITION" dated October 8, 1991 with CounterMotion that respondent PCGG similarly grant the same
treatment to them (exclusion as parties-defendants) as
accorded private respondent Roco. 8 The Counter-Motion for
dropping petitioners from the complaint was duly set for hearing
on October 18, 1991 in accordance with the requirements of
Rule 15 of the Rules of Court.
In its "Comment," respondent PCGG set the following conditions
precedent for the exclusion of petitioners, namely: (a) the
disclosure of the identity of its clients; (b) submission of
documents substantiating the lawyer-client relationship; and (c)
the submission of the deeds of assignments petitioners
executed in favor of its client covering their respective
shareholdings. 9
Consequently, respondent PCGG presented supposed proof to
substantiate compliance by private respondent Roco of the

conditions precedent to warrant the latter's exclusion as partydefendant in PCGG Case No. 33, to wit: (a) Letter to respondent
PCGG of the counsel of respondent Roco dated May 24, 1989
reiterating a previous request for reinvestigation by the PCGG in
PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed
by private respondent Roco as Attachment to the letter
aforestated in (a); and (c) Letter of the Roco, Bunag, and
Kapunan Law Offices dated September 21, 1988 to the
respondent PCGG in behalf of private respondent Roco
originally requesting the reinvestigation and/or re-examination of
the evidence of the PCGG against Roco in its Complaint in
PCGG Case No. 33. 10
It is noteworthy that during said proceedings, private respondent
Roco did not refute petitioners' contention that he did actually
not reveal the identity of the client involved in PCGG Case No.
33, nor had he undertaken to reveal the identity of the client for
whom he acted as nominee-stockholder. 11
On March 18, 1992, respondent Sandiganbayan promulgated
the Resolution, herein questioned, denying the exclusion of
petitioners in PCGG Case No. 33, for their refusal to comply
with the conditions required by respondent PCGG. It held:
xxx xxx xxx
ACCRA lawyers may take the heroic stance of not
revealing the identity of the client for whom they
have acted, i.e. their principal, and that will be their
choice. But until they do identify their clients,
considerations of whether or not the privilege
claimed by the ACCRA lawyers exists cannot even
begin to be debated. The ACCRA lawyers cannot
excuse themselves from the consequences of
their acts until they have begun to establish the
basis for recognizing the privilege; the existence
and identity of the client.

This is what appears to be the cause for which


they have been impleaded by the PCGG as
defendants herein.

certiorari, docketed as G.R. No. 105938, invoking the following


grounds:
I

5. The PCGG is satisfied that defendant Roco has


demonstrated his agency and that Roco has
apparently identified his principal, which revelation
could show the lack of cause against him. This in
turn has allowed the PCGG to exercise its power
both under the rules of Agency and under Section
5 of E.O. No. 14-A in relation to the Supreme
Court's ruling in Republic v. Sandiganbayan (173
SCRA 72).
The PCGG has apparently offered to the ACCRA
lawyers the same conditions availed of by Roco;
full disclosure in exchange for exclusion from
these proceedings (par. 7, PCGG's COMMENT
dated November 4, 1991). The ACCRA lawyers
have preferred not to make the disclosures
required by the PCGG.
The ACCRA lawyers cannot, therefore, begrudge
the PCGG for keeping them as party defendants.
In the same vein, they cannot compel the PCGG
to be accorded the same treatment accorded to
Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated October
8, 1991 filed by the ACCRA lawyers and joined in
by Atty. Paraja G. Hayudini for the same treatment
by the PCGG as accorded to Raul S. Roco is
DENIED for lack of merit. 12
ACCRA lawyers moved for a reconsideration of the above
resolution but the same was denied by the respondent
Sandiganbayan. Hence, the ACCRA lawyers filed the petition for

The Honorable Sandiganbayan gravely abused its


discretion in subjecting petitioners ACCRA lawyers
who undisputably acted as lawyers in serving as
nominee-stockholders, to the strict application of
the law of agency.
II
The Honorable Sandiganbayan committed grave
abuse of discretion in not considering petitioners
ACCRA lawyers and Mr. Roco as similarly situated
and, therefore, deserving of equal treatment.
1. There is absolutely no evidence
that Mr. Roco had revealed, or had
undertaken to reveal, the identities of
the client(s) for whom he acted as
nominee-stockholder.
2. Even assuming that Mr. Roco had
revealed, or had undertaken to
reveal, the identities of the client(s),
the disclosure does not constitute a
substantial distinction as would make
the classification reasonable under
the equal protection clause.
3. Respondent Sandiganbayan
sanctioned favoritism and undue
preference in favor of Mr. Roco in
violation of the equal protection
clause.
III

The Honorable Sandiganbayan committed grave


abuse of discretion in not holding that, under the
facts of this case, the attorney-client privilege
prohibits petitioners ACCRA lawyers from
revealing the identity of their client(s) and the other
information requested by the PCGG.
1. Under the peculiar facts of this
case, the attorney-client privilege
includes the identity of the client(s).
2. The factual disclosures required
by the PCGG are not limited to the
identity of petitioners ACCRA
lawyers' alleged client(s) but extend
to other privileged matters.
IV
The Honorable Sandiganbayan committed grave
abuse of discretion in not requiring that the
dropping of party-defendants by the PCGG must
be based on reasonable and just grounds and with
due consideration to the constitutional right of
petitioners ACCRA lawyers to the equal protection
of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own motion for
reconsideration of the March 18, 1991 resolution which was
denied by respondent Sandiganbayan. Thus, he filed a separate
petition for certiorari, docketed as G.R. No. 108113, assailing
respondent Sandiganbayan's resolution on essentially the same
grounds averred by petitioners in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as
party-defendant in PCGG Case No. 33 grants him a favorable
treatment, on the pretext of his alleged undertaking to divulge
the identity of his client, giving him an advantage over them who
are in the same footing as partners in the ACCRA law firm.

Petitioners further argue that even granting that such an


undertaking has been assumed by private respondent Roco,
they are prohibited from revealing the identity of their principal
under their sworn mandate and fiduciary duty as lawyers to
uphold at all times the confidentiality of information obtained
during such lawyer-client relationship.
Respondent PCGG, through its counsel, refutes petitioners'
contention, alleging that the revelation of the identity of the client
is not within the ambit of the lawyer-client confidentiality
privilege, nor are the documents it required (deeds of
assignment) protected, because they are evidence of nominee
status. 13
In his comment, respondent Roco asseverates that respondent
PCGG acted correctly in excluding him as party-defendant
because he "(Roco) has not filed an Answer. PCGG had
therefore the right to dismiss Civil Case No. 0033 as to Roco
'without an order of court by filing a notice of dismissal'," 14 and
he has undertaken to identify his principal. 15
Petitioners' contentions are impressed with merit.
I
It is quite apparent that petitioners were impleaded by the
PCGG as co-defendants to force them to disclose the identity of
their clients. Clearly, respondent PCGG is not after petitioners
but the "bigger fish" as they say in street parlance. This ploy is
quite clear from the PCGG's willingness to cut a deal with
petitioners the names of their clients in exchange for
exclusion from the complaint. The statement of the
Sandiganbayan in its questioned resolution dated March 18,
1992 is explicit:
ACCRA lawyers may take the heroic stance of not
revealing the identity of the client for whom they
have acted, i.e, their principal, and that will be their
choice. But until they do identify their clients,

considerations of whether or not the privilege


claimed by the ACCRA lawyers exists cannot even
begin to be debated. The ACCRA lawyers cannot
excuse themselves from the consequences of
their acts until they have begun to establish the
basis for recognizing the privilege; the existence
and identity of the client.
This is what appears to be the cause for which
they have been impleaded by the PCGG as
defendants herein. (Emphasis ours)
In a closely related case, Civil Case No. 0110 of the
Sandiganbayan, Third Division, entitled "Primavera Farms, Inc.,
et al. vs. Presidential Commission on Good Government"
respondent PCGG, through counsel Mario Ongkiko, manifested
at the hearing on December 5, 1991 that the PCGG wanted to
establish through the ACCRA that their "so called client is Mr.
Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in
corporations included in Annex "A" of the Third Amended
Complaint; that the ACCRA lawyers executed deeds of trust and
deeds of assignment, some in the name of particular persons;
some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I propose
to establish through these ACCRA lawyers that,
one, their so-called client is Mr. Eduardo
Cojuangco. Second, it was Mr. Eduardo
Cojuangco who furnished all the monies to these
subscription payments of these corporations who
are now the petitioners in this case. Third, that
these lawyers executed deeds of trust, some in
the name of a particular person, some in blank.
Now, these blank deeds are important to our claim

that some of the shares are actually being held by


the nominees for the late President Marcos.
Fourth, they also executed deeds of assignment
and some of these assignments have also blank
assignees. Again, this is important to our claim
that some of the shares are for Mr. Conjuangco
and some are for Mr. Marcos. Fifth, that most of
thes e corporations are really just paper
corporations. Why do we say that? One: There are
no really fixed sets of officers, no fixed sets of
directors at the time of incorporation and even up
to 1986, which is the crucial year. And not only
that, they have no permits from the municipal
authorities in Makati. Next, actually all their
addresses now are care of Villareal Law Office.
They really have no address on records. These
are some of the principal things that we would ask
of these nominees stockholders, as they called
themselves. 16
It would seem that petitioners are merely standing in for their
clients as defendants in the complaint. Petitioners are being
prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite
obviously, petitioners' inclusion as co-defendants in the
complaint is merely being used as leverage to compel them to
name their clients and consequently to enable the PCGG to nail
these clients. Such being the case, respondent PCGG has no
valid cause of action as against petitioners and should exclude
them from the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the
Roman Law concepts of locatio conductio operarum (contract of
lease of services) where one person lets his services and
another hires them without reference to the object of which the
services are to be performed, wherein lawyers' services may be
compensated by honorarium or for hire, 17 and mandato

(contract of agency) wherein a friend on whom reliance could be


placed makes a contract in his name, but gives up all that he
gained by the contract to the person who requested him. 18 But
the lawyer-client relationship is more than that of the principalagent and lessor-lessee.
In modern day perception of the lawyer-client relationship, an
attorney is more than a mere agent or servant, because he
possesses special powers of trust and confidence reposed on
him by his client. 19 A lawyer is also as independent as the judge
of the court, thus his powers are entirely different from and
superior to those of an ordinary agent. 20 Moreover, an attorney
also occupies what may be considered as a "quasi-judicial
office" since he is in fact an officer of the Court 21 and exercises
his judgment in the choice of courses of action to be taken
favorable to his client.
Thus, in the creation of lawyer-client relationship, there are
rules, ethical conduct and duties that breathe life into it, among
those, the fiduciary duty to his client which is of a very delicate,
exacting and confidential character, requiring a very high degree
of fidelity and good faith, 22 that is required by reason of
necessity and public interest 23 based on the hypothesis that
abstinence from seeking legal advice in a good cause is an evil
which is fatal to the administration of justice. 24
It is also the strict sense of fidelity of a lawyer to
his client that distinguishes him from any other
professional in society. This conception is
entrenched and embodies centuries of established
and stable tradition. 25 In Stockton v. Ford, 26 the U.
S. Supreme Court held:

and it is the duty of the court to administer them in


a corresponding spirit, and to be watchful and
industrious, to see that confidence thus reposed
shall not be used to the detriment or prejudice of
the rights of the party bestowing it. 27
In our jurisdiction, this privilege takes off from the old Code of
Civil Procedure enacted by the Philippine Commission on
August 7, 1901. Section 383 of the Code specifically "forbids
counsel, without authority of his client to reveal any
communication made by the client to him or his advice given
thereon in the course of professional employment." 28 Passed on
into various provisions of the Rules of Court, the attorney-client
privilege, as currently worded provides:
Sec. 24. Disqualification by reason of privileged
communication. The following persons cannot
testify as to matters learned in confidence in the
following cases:
xxx xxx xxx
An attorney cannot, without the consent of his
client, be examined as to any communication
made by the client to him, or his advice given
thereon in the course of, or with a view to,
professional employment, can an attorney's
secretary, stenographer, or clerk be examined,
without the consent of the client and his employer,
concerning any fact the knowledge of which has
been acquired in such capacity. 29
Further, Rule 138 of the Rules of Court states:

There are few of the business relations of life


involving a higher trust and confidence than that of
attorney and client, or generally speaking, one
more honorably and faithfully discharged; few
more anxiously guarded by the law, or governed
by the sterner principles of morality and justice;

Sec. 20. It is the duty of an attorney: (e) to


maintain inviolate the confidence, and at every
peril to himself, to preserve the secrets of his
client, and to accept no compensation in

connection with his client's business except from


him or with his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of
Professional Responsibility which provides that:
Canon 17. A lawyer owes fidelity to the cause of
his client and he shall be mindful of the trust and
confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a
lawyer's fidelity to client:
The lawyers owes "entire devotion to the interest
of the client, warm zeal in the maintenance and
defense of his rights and the exertion of his utmost
learning and ability," to the end that nothing be
taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or
public popularity should restrain him from the full
discharge of his duty. In the judicial forum the
client is entitled to the benefit of any and every
remedy and defense that is authorized by the law
of the land, and he may expect his lawyer to
assert every such remedy or defense. But it is
steadfastly to be borne in mind that the great trust
of the lawyer is to be performed within and not
without the bounds of the law. The office of
attorney does not permit, much less does it
demand of him for any client, violation of law or
any manner of fraud or chicanery. He must obey
his own conscience and not that of his client.

and disclosure and legal representation with all his secrets


revealed then he might be compelled, in some instances, to
either opt to stay away from the judicial system or to lose the
right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information would
be curtailed thereby rendering the right practically nugatory. The
threat this represents against another sacrosanct individual
right, the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal
services opens the door to a whole spectrum of legal options
which would otherwise be circumscribed by limited information
engendered by a fear of disclosure. An effective lawyer-client
relationship is largely dependent upon the degree of confidence
which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and
flow of information. It necessarily follows that in order to attain
effective representation, the lawyer must invoke the privilege not
as a matter of option but as a matter of duty and professional
responsibility.
The question now arises whether or not this duty may be
asserted in refusing to disclose the name of petitioners' client(s)
in the case at bar. Under the facts and circumstances obtaining
in the instant case, the answer must be in the affirmative.
As a matter of public policy, a client's identity should not be
shrouded in mystery 30 Under this premise, the general rule in
our jurisdiction as well as in the United States is that a lawyer
may not invoke the privilege and refuse to divulge the name or
identity of this client. 31
The reasons advanced for the general rule are well established.

Considerations favoring confidentially in lawyer-client


relationships are many and serve several constitutional and
policy concerns. In the constitutional sphere, the privilege gives
flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose
between legal representation without effective communication

First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.

Second, the privilege begins to exist only after the attorneyclient relationship has been established. The attorney-client
privilege does not attach until there is a client.

probability exists that the disclosure of the client's identity would


implicate the client in the very criminal activity for which the
lawyer's legal advice was obtained.

Third, the privilege generally pertains to the subject matter of


the relationship.

The Hodge case involved federal grand jury proceedings


inquiring into the activities of the "Sandino Gang," a gang
involved in the illegal importation of drugs in the United States.
The respondents, law partners, represented key witnesses and
suspects including the leader of the gang, Joe Sandino.

Finally, due process considerations require that the opposing


party should, as a general rule, know his adversary. "A party
suing or sued is entitled to know who his opponent is." 32 He
cannot be obliged to grope in the dark against unknown forces.
33

Notwithstanding these considerations, the general rule is


however qualified by some important exceptions.
1) Client identity is privileged where a strong probability exists
that revealing the client's name would implicate that client in the
very activity for which he sought the lawyer's advice.
In Ex-Parte Enzor, 34 a state supreme court reversed a lower
court order requiring a lawyer to divulge the name of her client
on the ground that the subject matter of the relationship was so
closely related to the issue of the client's identity that the
privilege actually attached to both. In Enzor, the unidentified
client, an election official, informed his attorney in confidence
that he had been offered a bribe to violate election laws or that
he had accepted a bribe to that end. In her testimony, the
attorney revealed that she had advised her client to count the
votes correctly, but averred that she could not remember
whether her client had been, in fact, bribed. The lawyer was
cited for contempt for her refusal to reveal his client's identity
before a grand jury. Reversing the lower court's contempt
orders, the state supreme court held that under the
circumstances of the case, and under the exceptions described
above, even the name of the client was privileged.
U .S. v. Hodge and Zweig, 35 involved the same exception, i.e.
that client identity is privileged in those instances where a strong

In connection with a tax investigation in November of 1973, the


IRS issued summons to Hodge and Zweig, requiring them to
produce documents and information regarding payment
received by Sandino on behalf of any other person, and vice
versa. The lawyers refused to divulge the names. The Ninth
Circuit of the United States Court of Appeals, upholding nondisclosure under the facts and circumstances of the case, held:
A client's identity and the nature of that client's fee
arrangements may be privileged where the person
invoking the privilege can show that a strong
probability exists that disclosure of such
information would implicate that client in the very
criminal activity for which legal advice was sought
Baird v. Koerner, 279 F. 2d at 680. While in Baird
Owe enunciated this rule as a matter of California
law, the rule also reflects federal law. Appellants
contend that the Baird exception applies to this
case.
The Baird exception is entirely consonant with the
principal policy behind the attorney-client privilege.
"In order to promote freedom of consultation of
legal advisors by clients, the apprehension of
compelled disclosure from the legal advisors must
be removed; hence, the law must prohibit such
disclosure except on the client's consent." 8 J.
Wigmore, supra sec. 2291, at 545. In furtherance
of this policy, the client's identity and the nature of

his fee arrangements are, in exceptional cases,


protected as confidential communications. 36
2) Where disclosure would open the client to civil liability; his
identity is privileged. For instance, the peculiar facts and
circumstances of Neugass v. Terminal Cab Corporation, 37
prompted the New York Supreme Court to allow a lawyer's claim
to the effect that he could not reveal the name of his client
because this would expose the latter to civil litigation.
In the said case, Neugass, the plaintiff, suffered injury when the
taxicab she was riding, owned by respondent corporation,
collided with a second taxicab, whose owner was unknown.
Plaintiff brought action both against defendant corporation and
the owner of the second cab, identified in the information only
as John Doe. It turned out that when the attorney of defendant
corporation appeared on preliminary examination, the fact was
somehow revealed that the lawyer came to know the name of
the owner of the second cab when a man, a client of the
insurance company, prior to the institution of legal action, came
to him and reported that he was involved in a car accident. It
was apparent under the circumstances that the man was the
owner of the second cab. The state supreme court held that the
reports were clearly made to the lawyer in his professional
capacity. The court said:
That his employment came about through the fact
that the insurance company had hired him to
defend its policyholders seems immaterial. The
attorney is such cases is clearly the attorney for
the policyholder when the policyholder goes to him
to report an occurrence contemplating that it would
be used in an action or claim against him. 38
xxx xxx xxx
All communications made by a client to his
counsel, for the purpose of professional advice or
assistance, are privileged, whether they relate to a

suit pending or contemplated, or to any other


matter proper for such advice or aid; . . . And
whenever the communication made, relates to a
matter so connected with the employment as
attorney or counsel as to afford presumption that it
was the ground of the address by the client, then it
is privileged from disclosure. . .
It appears . . . that the name and address of the
owner of the second cab came to the attorney in
this case as a confidential communication. His
client is not seeking to use the courts, and his
address cannot be disclosed on that theory, nor is
the present action pending against him as service
of the summons on him has not been effected.
The objections on which the court reserved
decision are sustained. 39
In the case of Matter of Shawmut Mining Company, 40 the lawyer
involved was required by a lower court to disclose whether he
represented certain clients in a certain transaction. The purpose
of the court's request was to determine whether the unnamed
persons as interested parties were connected with the purchase
of properties involved in the action. The lawyer refused and
brought the question to the State Supreme Court. Upholding the
lawyer's refusal to divulge the names of his clients the court
held:
If it can compel the witness to state, as directed by
the order appealed from, that he represented
certain persons in the purchase or sale of these
mines, it has made progress in establishing by
such evidence their version of the litigation. As
already suggested, such testimony by the witness
would compel him to disclose not only that he was
attorney for certain people, but that, as the result
of communications made to him in the course of
such employment as such attorney, he knew that
they were interested in certain transactions. We

feel sure that under such conditions no case has


ever gone to the length of compelling an attorney,
at the instance of a hostile litigant, to disclose not
only his retainer, but the nature of the transactions
to which it related, when such information could be
made the basis of a suit against his client. 41
3) Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the said
name would furnish the only link that would form the chain of
testimony necessary to convict an individual of a crime, the
client's name is privileged.
In Baird vs. Korner, 42 a lawyer was consulted by the
accountants and the lawyer of certain undisclosed taxpayers
regarding steps to be taken to place the undisclosed taxpayers
in a favorable position in case criminal charges were brought
against them by the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayers' returns of previous years were
probably incorrect and the taxes understated. The clients
themselves were unsure about whether or not they violated tax
laws and sought advice from Baird on the hypothetical
possibility that they had. No investigation was then being
undertaken by the IRS of the taxpayers. Subsequently, the
attorney of the taxpayers delivered to Baird the sum of $12,
706.85, which had been previously assessed as the tax due,
and another amount of money representing his fee for the
advice given. Baird then sent a check for $12,706.85 to the IRS
in Baltimore, Maryland, with a note explaining the payment, but
without naming his clients. The IRS demanded that Baird
identify the lawyers, accountants, and other clients involved.
Baird refused on the ground that he did not know their names,
and declined to name the attorney and accountants because
this constituted privileged communication. A petition was filed for
the enforcement of the IRS summons. For Baird's repeated
refusal to name his clients he was found guilty of civil contempt.
The Ninth Circuit Court of Appeals held that, a lawyer could not
be forced to reveal the names of clients who employed him to

pay sums of money to the government voluntarily in settlement


of undetermined income taxes, unsued on, and with no
government audit or investigation into that client's income tax
liability pending. The court emphasized the exception that a
client's name is privileged when so much has been revealed
concerning the legal services rendered that the disclosure of the
client's identity exposes him to possible investigation and
sanction by government agencies. The Court held:
The facts of the instant case bring it squarely
within that exception to the general rule. Here
money was received by the government, paid by
persons who thereby admitted they had not paid a
sufficient amount in income taxes some one or
more years in the past. The names of the clients
are useful to the government for but one purpose
to ascertain which taxpayers think they were
delinquent, so that it may check the records for
that one year or several years. The voluntary
nature of the payment indicates a belief by the
taxpayers that more taxes or interest or penalties
are due than the sum previously paid, if any. It
indicates a feeling of guilt for nonpayment of
taxes, though whether it is criminal guilt is
undisclosed. But it may well be the link that could
form the chain of testimony necessary to convict
an individual of a federal crime. Certainly the
payment and the feeling of guilt are the reasons
the attorney here involved was employed to
advise his clients what, under the circumstances,
should be done. 43
Apart from these principal exceptions, there exist other
situations which could qualify as exceptions to the general rule.
For example, the content of any client communication to a
lawyer lies within the privilege if it is relevant to the subject
matter of the legal problem on which the client seeks legal
assistance. 44 Moreover, where the nature of the attorney-client

relationship has been previously disclosed and it is the identity


which is intended to be confidential, the identity of the client has
been held to be privileged, since such revelation would
otherwise result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege when
the client's name itself has an independent significance, such
that disclosure would then reveal client confidences. 46
The circumstances involving the engagement of lawyers in the
case at bench, therefore, clearly reveal that the instant case
falls under at least two exceptions to the general rule. First,
disclosure of the alleged client's name would lead to establish
said client's connection with the very fact in issue of the case,
which is privileged information, because the privilege, as stated
earlier, protects the subject matter or the substance (without
which there would be not attorney-client relationship).
The link between the alleged criminal offense and the legal
advice or legal service sought was duly establishes in the case
at bar, by no less than the PCGG itself. The key lies in the three
specific conditions laid down by the PCGG which constitutes
petitioners' ticket to non-prosecution should they accede
thereto:
(a) the disclosure of the identity of its clients;
(b) submission of documents substantiating the
lawyer-client relationship; and
(c) the submission of the deeds of assignment
petitioners executed in favor of their clients
covering their respective shareholdings.
From these conditions, particularly the third, we can readily
deduce that the clients indeed consulted the petitioners, in their
capacity as lawyers, regarding the financial and corporate
structure, framework and set-up of the corporations in question.

In turn, petitioners gave their professional advice in the form of,


among others, the aforementioned deeds of assignment
covering their client's shareholdings.
There is no question that the preparation of the aforestated
documents was part and parcel of petitioners' legal service to
their clients. More important, it constituted an integral part of
their duties as lawyers. Petitioners, therefore, have a legitimate
fear that identifying their clients would implicate them in the very
activity for which legal advice had been sought, i.e., the alleged
accumulation of ill-gotten wealth in the aforementioned
corporations.
Furthermore, under the third main exception, revelation of the
client's name would obviously provide the necessary link for the
prosecution to build its case, where none otherwise exists. It is
the link, in the words of Baird, "that would inevitably form the
chain of testimony necessary to convict the (client) of a . . .
crime." 47
An important distinction must be made between a case where a
client takes on the services of an attorney for illicit purposes,
seeking advice about how to go around the law for the purpose
of committing illegal activities and a case where a client thinks
he might have previously committed something illegal and
consults his attorney about it. The first case clearly does not fall
within the privilege because the same cannot be invoked for
purposes illegal. The second case falls within the exception
because whether or not the act for which the client sought
advice turns out to be illegal, his name cannot be used or
disclosed if the disclosure leads to evidence, not yet in the
hands of the prosecution, which might lead to possible action
against him.
These cases may be readily distinguished, because the
privilege cannot be invoked or used as a shield for an illegal act,
as in the first example; while the prosecution may not have a
case against the client in the second example and cannot use
the attorney client relationship to build up a case against the

latter. The reason for the first rule is that it is not within the
professional character of a lawyer to give advice on the
commission of a crime. 48 The reason for the second has been
stated in the cases above discussed and are founded on the
same policy grounds for which the attorney-client privilege, in
general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court
therein stated that "under such conditions no case has ever yet
gone to the length of compelling an attorney, at the instance of a
hostile litigant, to disclose not only his retainer, but the nature of
the transactions to which it related, when such information could
be made the basis of a suit against his client." 49
"Communications made to an attorney in the course of any
personal employment, relating to the subject thereof, and which
may be supposed to be drawn out in consequence of the
relation in which the parties stand to each other, are under the
seal of confidence and entitled to protection as privileged
communications." 50 Where the communicated information,
which clearly falls within the privilege, would suggest possible
criminal activity but there would be not much in the information
known to the prosecution which would sustain a charge except
that revealing the name of the client would open up other
privileged information which would substantiate the
prosecution's suspicions, then the client's identity is so
inextricably linked to the subject matter itself that it falls within
the protection. The Baird exception, applicable to the instant
case, is consonant with the principal policy behind the privilege,
i.e., that for the purpose of promoting freedom of consultation of
legal advisors by clients, apprehension of compelled disclosure
from attorneys must be eliminated. This exception has likewise
been sustained in In re Grand Jury Proceedings 51 and Tillotson
v. Boughner. 52 What these cases unanimously seek to avoid is
the exploitation of the general rule in what may amount to a
fishing expedition by the prosecution.
There are, after all, alternative source of information available to
the prosecutor which do not depend on utilizing a defendant's
counsel as a convenient and readily available source of

information in the building of a case against the latter.


Compelling disclosure of the client's name in circumstances
such as the one which exists in the case at bench amounts to
sanctioning fishing expeditions by lazy prosecutors and litigants
which we cannot and will not countenance. When the nature of
the transaction would be revealed by disclosure of an attorney's
retainer, such retainer is obviously protected by the privilege. 53
It follows that petitioner attorneys in the instant case owe their
client(s) a duty and an obligation not to disclose the latter's
identity which in turn requires them to invoke the privilege.
In fine, the crux of petitioners' objections ultimately hinges on
their expectation that if the prosecution has a case against their
clients, the latter's case should be built upon evidence
painstakingly gathered by them from their own sources and not
from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about
the nature of the transaction which may or may not be illegal.
The logical nexus between name and nature of transaction is so
intimate in this case the it would be difficult to simply dissociate
one from the other. In this sense, the name is as much
"communication" as information revealed directly about the
transaction in question itself, a communication which is clearly
and distinctly privileged. A lawyer cannot reveal such
communication without exposing himself to charges of violating
a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his client
therefore imposes a strict liability for negligence on the former.
The ethical duties owing to the client, including confidentiality,
loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions
have been zealously sustained. In Milbank, Tweed, Hadley and
McCloy v. Boon, 54 the US Second District Court rejected the
plea of the petitioner law firm that it breached its fiduciary duty
to its client by helping the latter's former agent in closing a deal
for the agent's benefit only after its client hesitated in proceeding
with the transaction, thus causing no harm to its client. The

Court instead ruled that breaches of a fiduciary relationship in


any context comprise a special breed of cases that often loosen
normally stringent requirements of causation and damages, and
found in favor of the client.
To the same effect is the ruling in Searcy, Denney, Scarola,
Barnhart, and Shipley P.A. v. Scheller 55 requiring strict
obligation of lawyers vis-a-vis clients. In this case, a contingent
fee lawyer was fired shortly before the end of completion of his
work, and sought payment quantum meruit of work done. The
court, however, found that the lawyer was fired for cause after
he sought to pressure his client into signing a new fee
agreement while settlement negotiations were at a critical stage.
While the client found a new lawyer during the interregnum,
events forced the client to settle for less than what was originally
offered. Reiterating the principle of fiduciary duty of lawyers to
clients in Meinhard v. Salmon 56 famously attributed to Justice
Benjamin Cardozo that "Not honesty alone, but the punctilio of
an honor the most sensitive, is then the standard of behavior,"
the US Court found that the lawyer involved was fired for cause,
thus deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyerclient confidentiality privilege and lawyer's loyalty to his client is
evident in the duration of the protection, which exists not only
during the relationship, but extends even after the termination of
the relationship. 57
Such are the unrelenting duties required by lawyers vis-a-vis
their clients because the law, which the lawyers are sworn to
uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an
exacting goddess, demanding of her votaries in intellectual and
moral discipline." The Court, no less, is not prepared to accept
respondents' position without denigrating the noble profession
that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly pursued. But
what other gives such scope to realize the
spontaneous energy of one's soul? In what other

does one plunge so deep in the stream of life


so share its passions its battles, its despair, its
triumphs, both as witness and actor? . . . But that
is not all. What a subject is this in which we are
united this abstraction called the Law, wherein
as in a magic mirror, we see reflected, not only in
our lives, but the lives of all men that have been.
When I think on this majestic theme my eyes
dazzle. If we are to speak of the law as our
mistress, we who are here know that she is a
mistress only to be won with sustained and lonely
passion only to be won by straining all the
faculties by which man is likened to God.
We have no choice but to uphold petitioners' right not to reveal
the identity of their clients under pain of the breach of fiduciary
duty owing to their clients, because the facts of the instant case
clearly fall within recognized exceptions to the rule that the
client's name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client
confidential privilege under the circumstances obtaining here
does not cover the identity of the client, then it would expose the
lawyers themselves to possible litigation by their clients in view
of the strict fiduciary responsibility imposed on them in the
exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the
defendants therein, including herein petitioners and
Eduardo Cojuangco, Jr. conspired with each other in
setting up through the use of coconut levy funds the
financial and corporate framework and structures that led
to the establishment of UCPB, UNICOM and others and
that through insidious means and machinations, ACCRA,
using its wholly-owned investment arm, ACCRA
Investment Corporation, became the holder of
approximately fifteen million shares representing roughly
3.3% of the total capital stock of UCPB as of 31 March
1987. The PCGG wanted to establish through the

ACCRA lawyers that Mr. Cojuangco is their client and it


was Cojuangco who furnished all the monies to the
subscription payment; hence, petitioners acted as
dummies, nominees and/or agents by allowing
themselves, among others, to be used as instrument in
accumulating ill-gotten wealth through government
concessions, etc., which acts constitute gross abuse of
official position and authority, flagrant breach of public
trust, unjust enrichment, violation of the Constitution and
laws of the Republic of the Philippines.
By compelling petitioners, not only to reveal the identity
of their clients, but worse, to submit to the PCGG
documents substantiating the client-lawyer relationship,
as well as deeds of assignment petitioners executed in
favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a
link "that would inevitably form the chain of testimony
necessary to convict the (client) of a crime."
III
In response to petitioners' last assignment of error,
respondents alleged that the private respondent was
dropped as party defendant not only because of his
admission that he acted merely as a nominee but also
because of his undertaking to testify to such facts and
circumstances "as the interest of truth may require, which
includes . . . the identity of the principal." 59
First, as to the bare statement that private respondent
merely acted as a lawyer and nominee, a statement
made in his out-of-court settlement with the PCGG, it is
sufficient to state that petitioners have likewise made the
same claim not merely out-of-court but also in the Answer
to plaintiff's Expanded Amended Complaint, signed by
counsel, claiming that their acts were made in
furtherance of "legitimate lawyering." 60 Being "similarly
situated" in this regard, public respondents must show

that there exist other conditions and circumstances which


would warrant their treating the private respondent
differently from petitioners in the case at bench in order to
evade a violation of the equal protection clause of the
Constitution.
To this end, public respondents contend that the primary
consideration behind their decision to sustain the
PCGG's dropping of private respondent as a defendant
was his promise to disclose the identities of the clients in
question. However, respondents failed to show and
absolute nothing exists in the records of the case at bar
that private respondent actually revealed the identity
of his client(s) to the PCGG. Since the undertaking
happens to be the leitmotif of the entire arrangement
between Mr. Roco and the PCGG, an undertaking which
is so material as to have justified PCGG's special
treatment exempting the private respondent from
prosecution, respondent Sandiganbayan should have
required proof of the undertaking more substantial than a
"bare assertion" that private respondent did indeed
comply with the undertaking. Instead, as manifested by
the PCGG, only three documents were submitted for the
purpose, two of which were mere requests for reinvestigation and one simply disclosed certain clients
which petitioners (ACCRA lawyers) were themselves
willing to reveal. These were clients to whom both
petitioners and private respondent rendered legal
services while all of them were partners at ACCRA, and
were not the clients which the PCGG wanted disclosed
for the alleged questioned transactions. 61
To justify the dropping of the private respondent from the
case or the filing of the suit in the respondent court
without him, therefore, the PCGG should conclusively
show that Mr. Roco was treated as species apart from
the rest of the ACCRA lawyers on the basis of a
classification which made substantial distinctions based
on real differences. No such substantial distinctions exist

from the records of the case at bench, in violation of the


equal protection clause.
The equal protection clause is a guarantee which
provides a wall of protection against uneven application
of status and regulations. In the broader sense, the
guarantee operates against uneven application of legal
norms so
that all persons under similar circumstances would be
accorded the same treatment. 62 Those who fall within a
particular class ought to be treated alike not only as to
privileges granted but also as to the liabilities imposed.
. . . What is required under this constitutional
guarantee is the uniform operation of legal norms
so that all persons under similar circumstances
would be accorded the same treatment both in the
privileges conferred and the liabilities imposed. As
was noted in a recent decision: "Favoritism and
undue preference cannot be allowed. For the
principle is that equal protection and security shall
be given to every person under circumstances,
which if not identical are analogous. If law be
looked upon in terms of burden or charges, those
that fall within a class should be treated in the
same fashion, whatever restrictions cast on some
in the group equally binding the rest. 63
We find that the condition precedent required by the
respondent PCGG of the petitioners for their exclusion as
parties-defendants in PCGG Case No. 33 violates the
lawyer-client confidentiality privilege. The condition also
constitutes a transgression by respondents
Sandiganbayan and PCGG of the equal protection clause
of the Constitution. 64 It is grossly unfair to exempt one
similarly situated litigant from prosecution without
allowing the same exemption to the others. Moreover, the
PCGG's demand not only touches upon the question of
the identity of their clients but also on documents related

to the suspected transactions, not only in violation of the


attorney-client privilege but also of the constitutional right
against self-incrimination. Whichever way one looks at it,
this is a fishing expedition, a free ride at the expense of
such rights.
An argument is advanced that the invocation by
petitioners of the privilege of attorney-client confidentiality
at this stage of the proceedings is premature and that
they should wait until they are called to testify and
examine as witnesses as to matters learned in
confidence before they can raise their objections. But
petitioners are not mere witnesses. They are coprincipals in the case for recovery of alleged ill-gotten
wealth. They have made their position clear from the very
beginning that they are not willing to testify and they
cannot be compelled to testify in view of their
constitutional right against self-incrimination and of their
fundamental legal right to maintain inviolate the privilege
of attorney-client confidentiality.
It is clear then that the case against petitioners should
never be allowed to take its full course in the
Sandiganbayan. Petitioners should not be made to suffer
the effects of further litigation when it is obvious that their
inclusion in the complaint arose from a privileged
attorney-client relationship and as a means of coercing
them to disclose the identities of their clients. To allow the
case to continue with respect to them when this Court
could nip the problem in the bud at this early opportunity
would be to sanction an unjust situation which we should
not here countenance. The case hangs as a real and
palpable threat, a proverbial Sword of Damocles over
petitioners' heads. It should not be allowed to continue a
day longer.
While we are aware of respondent PCGG's legal
mandate to recover ill-gotten wealth, we will not sanction
acts which violate the equal protection guarantee and the

right against self-incrimination and subvert the lawyerclient confidentiality privilege.

No. 47

the death of a seaman in the sinking of the tug filed numerous


interrogatories directed to the defendants, including one
inquiring whether any statements of members of the crew were
taken in connection with the accident and requesting that exact
copies of all such written statements be attached and that the
defendant "set forth in detail the exact provisions of any such
oral statements or reports." There was no showing of necessity
or other justification for these requests. A public hearing had
been held before the United States Steamboat Inspectors at
which the survivors of the accident had been examined and
their testimony recorded and made available to all interested
parties. Defendants answered all other interrogatories, stating
objective facts and giving the names and addresses of
witnesses, but declined to summarize or set forth the
statements taken from witnesses, on the ground that they were
"privileged matter obtained in preparation for litigation." After a
hearing on objections to the interrogatories, the District Court
held that the requested matters were not privileged and decreed
that they be produced and that memoranda of defendants'
counsel containing statements of fact by witnesses either be
produced or submitted to the court for determination of those
portions which should be revealed to plaintiff. Defendants and
their counsel refused, and were adjudged guilty of contempt.

Argued November 13, 1946

Held:

Decided January 13, 1947

1. In these circumstances, Rules 26, 33 and 34 of the Federal


Rules of Civil Procedure do not require the production as of right
of oral and written statements of witnesses secured by an
adverse party's counsel in the course of preparation for possible
litigation after a claim has arisen. Pp. 329 U. S. 509-514.

WHEREFORE, IN VIEW OF THE FOREGOING, the


Resolutions of respondent Sandiganbayan (First
Division) promulgated on March 18, 1992 and May 21,
1992 are hereby ANNULLED and SET ASIDE.
Respondent Sandiganbayan is further ordered to exclude
petitioners Teodoro D. Regala, Edgardo J. Angara,
Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin,
Eduardo U. Escueta and Paraja G. Hayuduni as partiesdefendants in SB Civil Case No. 0033 entitled "Republic
of the Philippines v. Eduardo Cojuangco, Jr., et al."
SO ORDERED.

Hickman v. Taylor, 329 U.S. 495 (1947)


Hickman v. Taylor

329 U.S. 495


CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE THIRD CIRCUIT
Syllabus
Under the Federal Rules of Civil Procedure, plaintiff in a suit in a
federal district court against certain tug owners to recover for

2. Since plaintiff addressed simple interrogatories to adverse


parties, did not direct them to such parties or their counsel by
way of deposition under Rule 26, and it does not appear that he
filed a
Page 329 U. S. 496

motion under Rule 34 for a court order directing the production


of the documents in question, he was proceeding primarily
under Rule 33, relating to interrogatories to parties. P. 329 U. S.
504.
3. Rules 33 and 34 are limited to parties, thereby excluding their
counsel or agents. P. 329 U. S. 504.
4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to
interrogatories addressed to defendants, memoranda and
statements prepared by their counsel after a claim had arisen.
P. 329 U. S. 504.
5. The District Court erred in holding defendants in contempt for
failure to produce that which was in the possession of their
counsel, and in holding their counsel in contempt for failure to
produce that which he could not be compelled to produce under
either Rule 33 or Rule 34. P. 329 U. S. 505.
6. Memoranda, statements, and mental impressions prepared or
obtained from interviews with witnesses by counsel in preparing
for litigation after a claim has arisen are not within the attorneyclient privilege, and are not protected from discovery on that
basis. P. 329 U. S. 508.
7. The general policy against invading the privacy of an
attorney's course of preparation is so essential to an orderly
working of our system of legal procedure that a burden rests on
the one who would invade that privacy to establish adequate
reasons to justify production through a subpoena or court order.
P. 329 U. S. 512.
8. Rule 30(b) gives the trial judge the requisite discretion to
make a judgment as to whether discovery should be allowed as
to written statements secured from witnesses; but, in this case,
there was no ground for the exercise of that discretion in favor
of plaintiff. P. 329 U. S. 512.

9. Under the circumstances of this case, no showing of


necessity could be made which would justify requiring the
production of oral statements made by witnesses to defendants'
counsel, whether presently in the form of his mental impressions
or in the form of memoranda. P. 329 U. S. 512.
153 F.2d 212 affirmed.
A District Court adjudged respondents guilty of contempt for
failure to produce, in response to interrogatories, copies of
certain written statements and memoranda prepared by counsel
in connection with pending litigation. 4 F.R.D. 479. The Circuit
Court of Appeals reversed. 153 F.2d 212. This Court granted
certiorari. 328 U.S. 876. Affirmed, p. 329 U. S. 514.
Page 329 U. S. 497
MR. JUSTICE MURPHY delivered the opinion of the Court.
This case presents an important problem under the Federal
Rules of Civil Procedure as to the extent to which a party may
inquire into oral and written statements of witnesses, or other
information, secured by an adverse party's counsel in the
course of preparation for possible litigation after a claim has
arisen. Examination into a person's files and records, including
those resulting from the professional activities of an attorney,
must be judged with care. It is not without reason that various
safeguards have been established to preclude unwarranted
excursions into the privacy of a man's work. At the same time,
public policy supports reasonable and necessary inquiries.
Properly to balance these competing interests is a delicate and
difficult task.
Page 329 U. S. 498
On February 7, 1943, the tug "J. M. Taylor" sank while engaged
in helping to tow a car float of the Baltimore & Ohio Railroad
across the Delaware River at Philadelphia. The accident was
apparently unusual in nature, the cause of it still being unknown.

Five of the nine crew members were drowned. Three days later,
the tug owners and the underwriters employed a law firm, of
which respondent Fortenbaugh is a member, to defend them
against potential suits by representatives of the deceased crew
members and to sue the railroad for damages to the tug.
A public hearing was held on March 4, 1943, before the United
States Steamboat Inspectors at which the four survivors were
examined. This testimony was recorded and made available to
all interested parties. Shortly thereafter, Fortenbaugh privately
interviewed the survivors and took statements from them with
an eye toward the anticipated litigation; the survivors signed
these statements on March 29. Fortenbaugh also interviewed
other persons believed to have some information relating to the
accident, and in some cases he made memoranda of what they
told him. At the time when Fortenbaugh secured the statements
of the survivors, representatives of two of the deceased crew
members had been in communication with him. Ultimately
claims were presented by representatives of all five of the
deceased; four of the claims, however, were settled without
litigation. The fifth claimant, petitioner herein, brought suit in a
federal court under the Jones Act on November 26, 1943,
naming as defendants the two tug owners, individually and as
partners, and the railroad.
One year later, petitioner filed 39 interrogatories directed to the
tug owners. The 38th interrogatory read:
"State whether any statements of the members of the crews of
the Tugs 'J. M. Taylor' and 'Philadelphia' or of any other vessel
were taken in connection with the towing of the car float and the
sinking of the Tug 'John M. Taylor.'
Page 329 U. S. 499
Attach hereto exact copies of all such statements if in writing,
and if oral, set forth in detail the exact provisions of any such
oral statements or reports."

Supplemental interrogatories asked whether any oral or written


statements, records, reports, or other memoranda had been
made concerning any matter relative to the towing operation,
the sinking of the tug, the salvaging and repair of the tug, and
the death of the deceased. If the answer was in the affirmative,
the tug owners were then requested to set forth the nature of all
such records, reports, statements, or other memoranda.
The tug owners, through Fortenbaugh, answered all of the
interrogatories except No. 38 and the supplemental ones just
described. While admitting that statements of the survivors had
been taken, they declined to summarize or set forth the
contents. They did so on the ground that such requests called
"for privileged matter obtained in preparation for litigation," and
constituted "an attempt to obtain indirectly counsel's private
files." It was claimed that answering these requests "would
involve practically turning over not only the complete files, but
also the telephone records and, almost, the thoughts, of
counsel."
In connection with the hearing on these objections, Fortenbaugh
made a written statement and gave an informal oral deposition
explaining the circumstances under which he had taken the
statements. But he was not expressly asked in the deposition to
produce the statements. The District Court for the Eastern
District of Pennsylvania, sitting en banc, held that the requested
matters were not privileged. 4 F.R.D. 479. The court then
decreed that the tug owners and Fortenbaugh, as counsel and
agent for the tug owners forthwith
"answer Plaintiff's 38th interrogatory and supplemental
interrogatories; produce all written statements of witnesses
obtained by Mr. Fortenbaugh, as counsel and agent for
Defendants;
Page 329 U. S. 500
state in substance any fact concerning this case which
Defendants learned through oral statements made by witnesses

to Mr. Fortenbaugh, whether or not included in his private


memoranda, and produce Mr. Fortenbaugh's memoranda
containing statements of fact by witnesses or to submit these
memoranda to the Court for determination of those portions
which should be revealed to Plaintiff."
Upon their refusal, the court adjudged them in contempt and
ordered them imprisoned until they complied.
The Third Circuit Court of Appeals, also sitting en banc,
reversed the judgment of the District Court. 153 F.2d 212. It held
that the information here sought was part of the "work product of
the lawyer," and hence privileged from discovery under the
Federal Rules of Civil Procedure. The importance of the
problem, which has engendered a great divergence of views
among district courts, [Footnote 1] led us to grant certiorari. 328
U.S. 876.
The pretrial deposition-discovery mechanism established by
Rules 26 to 37 is one of the most significant innovations of the
Federal Rules of Civil Procedure. Under the prior federal
practice, the pretrial functions of notice-giving, issueformulation, and fact-revelation were performed primarily and
inadequately by the pleadings. [Footnote 2] Inquiry into the
issues and the facts before trial was
Page 329 U. S. 501
narrowly confined, and was often cumbersome in method.
[Footnote 3] The new rules, however, restrict the pleadings to
the task of general notice-giving, and invest the depositiondiscovery process with a vital role in the preparation for trial.
The various instruments of discovery now serve (1) as a device,
along with the pretrial hearing under Rule 16, to narrow and
clarify the basic issues between the parties, and (2) as a device
for ascertaining the facts, or information as to the existence or
whereabouts of facts, relative to those issues. Thus, civil trials in
the federal courts no longer need be carried on in the dark. The
way is now clear, consistent with recognized privileges, for the

parties to obtain the fullest possible knowledge of the issues


and facts before trial. [Footnote 4]
There is an initial question as to which of the depositiondiscovery rules is involved in this case. Petitioner, in filing his
interrogatories, thought that he was proceeding under Rule 33.
That rule provides that a party may serve upon any adverse
party written interrogatories to be answered by the party served.
[Footnote 5] The District Court proceeded
Page 329 U. S. 502
on the same assumption in its opinion, although its order to
produce and its contempt order stated that both Rules 33 and
34 were involved. Rule 34 establishes a procedure whereby,
upon motion of any party showing good cause therefor and
upon notice to all other parties, the court may order any party to
produce and permit the inspection and copying or
photographing of any designated documents, etc., not
privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession,
custody, or control. [Footnote 6]
The Circuit Court of Appeals, however, felt that Rule 26 was the
crucial one. Petitioner, it said, was proceeding by
interrogatories, and, in connection with those interrogatories,
wanted copies of memoranda and statements secured from
witnesses. While the court believed that Rule 33 was involved at
least as to the defending tug owners, it stated that this rule
could not be used as the basis for condemning Fortenbaugh's
failure to disclose or produce
Page 329 U. S. 503
the memoranda and statements, since the rule applies only to
interrogatories addressed to adverse parties, not to their agents
or counsel. And Rule 34 was said to be inapplicable since
petitioner was not trying to see an original document and to
copy or photograph it, within the scope of that rule. The court

then concluded that Rule 26 must be the one really involved.


That provides that the testimony of any person, whether a party
or not, may be taken by any party by deposition upon oral
examination or written interrogatories for the purpose of
discovery or for use as evidence, and that the deponent may be
examined regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending action, whether
relating to the claim or defense of the examining party or of any
other party, including the existence, description, nature, custody,
condition and location of any books, documents or other
tangible things. [Footnote 7]
Page 329 U. S. 504
The matter is not without difficulty in light of the events that
transpired below. We believe, however, that petitioner was
proceeding primarily under Rule 33. He addressed simple
interrogatories solely to the individual tug owners, the adverse
parties, as contemplated by that rule. He did not, and could not
under Rule 33, address such interrogatories to their counsel,
Fortenbaugh. Nor did he direct these interrogatories either to
the tug owners or to Fortenbaugh by way of deposition; Rule 26
thus could not come into operation. And it does not appear from
the record that petitioner filed a motion under Rule 34 for a court
order directing the production of the documents in question.
Indeed, such an order could not have been entered as to
Fortenbaugh, since Rule 34, like Rule 33, is limited to parties to
the proceeding, thereby excluding their counsel or agents.
Thus, to the extent that petitioner was seeking the production of
the memoranda and statements gathered by Fortenbaugh in the
course of his activities as counsel, petitioner misconceived his
remedy. Rule 33 did not permit him to obtain such memoranda
and statements as adjuncts to the interrogatories addressed to
the individual tug owners. A party clearly cannot refuse to
answer interrogatories on the ground that the information sought
is solely within the knowledge of his attorney. But that is not this
case. Here, production was sought of documents prepared by a
party's attorney after the claim has arisen. Rule 33 does not

make provision for such production, even when sought in


connection with permissible interrogatories. Moreover, since
petitioner was also foreclosed from securing them through an
order under Rule 34, his only recourse was to take
Fortenbaugh's deposition under Rule 26 and to attempt to force
Fortenbaugh to produce the materials by use of a subpoena
duces tecum in accordance with Rule 45. Holtzoff, "Instruments
of Discovery under the Federal Rules of Civil Procedure," 41
Page 329 U. S. 505
Mich.L.Rev. 205, 220. But, despite petitioner's faulty choice of
action, the District Court entered an order, apparently under
Rule 34, commanding the tug owners and Fortenbaugh, as their
agent and counsel, to produce the materials in question. Their
refusal led to the anomalous result of holding the tug owners in
contempt for failure to produce that which was in the possession
of their counsel, and of holding Fortenbaugh in contempt for
failure to produce that which he could not be compelled to
produce under either Rule 33 or Rule 34.
But, under the circumstances, we deem it unnecessary and
unwise to rest our decision upon this procedural irregularity, an
irregularity which is not strongly urged upon us and which was
disregarded in the two courts below. It matters little at this later
stage whether Fortenbaugh fails to answer interrogatories filed
under Rule 26 or under Rule 33 or whether he refuses to
produce the memoranda and statements pursuant to a
subpoena under Rule 45 or a court order under Rule 34. The
deposition-discovery rules create integrated procedural devices.
And the basic question at stake is whether any of those devices
may be used to inquire into materials collected by an adverse
party's counsel in the course of preparation for possible
litigation. The fact that the petitioner may have used the wrong
method does not destroy the main thrust of his attempt. Nor
does it relieve us of the responsibility of dealing with the
problem raised by that attempt. It would be inconsistent with the
liberal atmosphere surrounding these rules to insist that
petitioner now go through the empty formality of pursuing the

right procedural device only to reestablish precisely the same


basic problem now confronting us. We do not mean to say,
however, that there may not be situations in which the failure to
proceed in accordance with a specific rule would be important or
decisive. But, in the present circumstances, for the purposes of
this decision, the procedural

its large staff of attorneys and claim agents. At the same time,
the individual plaintiff, who often has direct knowledge of the
matter in issue and has no counsel until some time after his
claim arises, could be compelled to disclose all the intimate
details of his case. By endowing with
Page 329 U. S. 507

Page 329 U. S. 506


irregularity is not material. Having noted the proper procedure,
we may accordingly turn our attention to the substance of the
underlying problem.
In urging that he has a right to inquire into the materials secured
and prepared by Fortenbaugh, petitioner emphasizes that the
deposition-discovery portions of the Federal Rules of Civil
Procedure are designed to enable the parties to discover the
true facts, and to compel their disclosure wherever they may be
found. It is said that inquiry may be made under these rules,
epitomized by Rule 26, as to any relevant matter which is not
privileged, and, since the discovery provisions are to be applied
as broadly and liberally as possible, the privilege limitation must
be restricted to its narrowest bounds. On the premise that the
attorney-client privilege is the one involved in this case,
petitioner argues that it must be strictly confined to confidential
communications made by a client to his attorney. And, since the
materials here in issue were secured by Fortenbaugh from third
persons, rather than from his clients, the tug owners, the
conclusion is reached that these materials are proper subjects
for discovery under Rule 26.
As additional support for this result, petitioner claims that to
prohibit discovery under these circumstances would give a
corporate defendant a tremendous advantage in a suit by an
individual plaintiff. Thus, in a suit by an injured employee against
a railroad or in a suit by an insured person against an insurance
company, the corporate defendant could pull a dark veil of
secrecy over all the pertinent facts it can collect after the claim
arises merely on the assertion that such facts were gathered by

immunity from disclosure all that a lawyer discovers in the


course of his duties, it is said, the rights of individual litigants in
such cases are drained of vitality, and the lawsuit becomes
more of a battle of deception than a search for truth.
But framing the problem in terms of assisting individual plaintiffs
in their suits against corporate defendants is unsatisfactory.
Discovery concededly may work to the disadvantage as well as
to the advantage of individual plaintiffs. Discovery, in other
words, is not a one-way proposition. It is available in all types of
cases at the behest of any party, individual or corporate, plaintiff
or defendant. The problem thus far transcends the situation
confronting this petitioner. And we must view that problem in
light of the limitless situations where the particular kind of
discovery sought by petitioner might be used.
We agree, of course, that the deposition-discovery rules are to
be accorded a broad and liberal treatment. No longer can the
time-honored cry of "fishing expedition" serve to preclude a
party from inquiring into the facts underlying his opponent's
case. [Footnote 8] Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation. To that
end, either party may compel the other to disgorge whatever
facts he has in his possession. The deposition-discovery
procedure simply advances the stage at which the disclosure
can be compelled from the time of trial to the period preceding
it, thus reducing the possibility of surprise. But discovery, like all
matters of procedure, has ultimate and necessary boundaries.
As indicated by Rules 30(b) and (d) and 31(d), limitations
inevitably arise when it can be shown

Page 329 U. S. 508

Page 329 U. S. 509

that the examination is being conducted in bad faith or in such a


manner as to annoy, embarrass, or oppress the person subject
to the inquiry. And, as Rule 26(b) provides, further limitations
come into existence when the inquiry touches upon the
irrelevant or encroaches upon the recognized domains of
privilege.

pertinent information gleaned by Fortenbaugh through his


interviews with the witnesses. Petitioner makes no suggestion,
and we cannot assume, that the tug owners or Fortenbaugh
were incomplete or dishonest in the framing of their answers. In
addition, petitioner was free to examine the public testimony of
the witnesses taken before the United States Steamboat
Inspectors. We are thus dealing with an attempt to secure the
production of written statements and mental impressions
contained in the files and the mind of the attorney Fortenbaugh
without any showing of necessity or any indication or claim that
denial of such production would unduly prejudice the
preparation of petitioner's case or cause him any hardship or
injustice. For aught that appears, the essence of what petitioner
seeks either has been revealed to him already through the
interrogatories or is readily available to him direct from the
witnesses for the asking.

We also agree that the memoranda, statements, and mental


impressions in issue in this case fall outside the scope of the
attorney-client privilege, and hence are not protected from
discovery on that basis. It is unnecessary here to delineate the
content and scope of that privilege as recognized in the federal
courts. For present purposes, it suffices to note that the
protective cloak of this privilege does not extend to information
which an attorney secures from a witness while acting for his
client in anticipation of litigation. Nor does this privilege concern
the memoranda, briefs, communications, and other writings
prepared by counsel for his own use in prosecuting his client's
case, and it is equally unrelated to writings which reflect an
attorney's mental impressions, conclusions, opinions, or legal
theories.
But the impropriety of invoking that privilege does not provide an
answer to the problem before us. Petitioner has made more
than an ordinary request for relevant, nonprivileged facts in the
possession of his adversaries or their counsel. He has sought
discovery as of right of oral and written statements of witnesses
whose identity is well known and whose availability to petitioner
appears unimpaired. He has sought production of these matters
after making the most searching inquiries of his opponents as to
the circumstances surrounding the fatal accident, which
inquiries were sworn to have been answered to the best of their
information and belief. Interrogatories were directed toward all
the events prior to, during, and subsequent to the sinking of the
tug. Full and honest answers to such broad inquiries would
necessarily have included all

The District Court, after hearing objections to petitioner's


request, commanded Fortenbaugh to produce all written
statements of witnesses and to state in substance any facts
learned through oral statements of witnesses to him.
Fortenbaugh was to submit any memoranda he had made of the
oral statements, so that the court might determine what portions
should be revealed to petitioner. All of this was ordered without
any showing by petitioner, or any requirement that he make a
proper showing, of the necessity for the production of any of this
material or any demonstration that denial of production would
cause hardship or injustice. The court simply ordered production
on the theory that the facts sought were material and were not
privileged as constituting attorney-client communications.
In our opinion, neither Rule 26 nor any other rule dealing with
discovery contemplates production under such circumstances.
That is not because the subject matter is privileged or irrelevant,
as those concepts are used in these
Page 329 U. S. 510

rules. [Footnote 9] Here is simply an attempt, without purported


necessity or justification, to secure written statements, private
memoranda, and personal recollections prepared or formed by
an adverse party's counsel in the course of his legal duties. As
such, it falls outside the arena of discovery and contravenes the
public policy underlying the orderly prosecution and defense of
legal claims. Not even the most liberal of discovery theories can
justify unwarranted inquiries into the files and the mental
impressions of an attorney.
Historically, a lawyer is an officer of the court, and is bound to
work for the advancement of justice while faithfully protecting
the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel.
Page 329 U. S. 511
Proper preparation of a client's case demands that he assemble
information, sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories, and plan his strategy
without undue and needless interference. That is the historical
and the necessary way in which lawyers act within the
framework of our system of jurisprudence to promote justice and
to protect their clients' interests. This work is reflected, of
course, in interviews, statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs, and countless other
tangible and intangible ways -- aptly though roughly termed by
the Circuit Court of Appeals in this case as the "work product of
the lawyer." Were such materials open to opposing counsel on
mere demand, much of what is now put down in writing would
remain unwritten. An attorney's thoughts, heretofore inviolate,
would not be his own. Inefficiency, unfairness, and sharp
practices would inevitably develop in the giving of legal advice
and in the preparation of cases for trial. The effect on the legal
profession would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served.

We do not mean to say that all written materials obtained or


prepared by an adversary's counsel with an eye toward litigation
are necessarily free from discovery in all cases. Where relevant
and nonprivileged facts remain hidden in an attorney's file, and
where production of those facts is essential to the preparation of
one's case, discovery may properly be had. Such written
statements and documents might, under certain circumstances,
be admissible in evidence, or give clues as to the existence or
location of relevant facts. Or they might be useful for purposes
of impeachment or corroboration. And production might be
justified where the witnesses are no longer available or can be
reached only with difficulty. Were production of written
statements and documents to be precluded under
Page 329 U. S. 512
such circumstances, the liberal ideals of the depositiondiscovery portions of the Federal Rules of Civil Procedure would
be stripped of much of their meaning. But the general policy
against invading the privacy of an attorney's course of
preparation is so well recognized and so essential to an orderly
working of our system of legal procedure that a burden rests on
the one who would invade that privacy to establish adequate
reasons to justify production through a subpoena or court order.
That burden, we believe, is necessarily implicit in the rules as
now constituted. [Footnote 10]
Rule 30(b), as presently written, gives the trial judge the
requisite discretion to make a judgment as to whether discovery
should be allowed as to written statements secured from
witnesses. But, in the instant case, there was no room for that
discretion to operate in favor of the petitioner. No attempt was
made to establish any reason why Fortenbaugh should be
forced to produce the written statements. There was only a
naked, general demand for these materials as of right, and a
finding by the District Court that no recognizable privilege was
involved. That was insufficient to justify discovery under these
circumstances, and the court should have sustained the refusal
of the tug owners and Fortenbaugh to produce.

But, as to oral statements made by witnesses to Fortenbaugh,


whether presently in the form of his mental impressions or
memoranda, we do not believe that any showing of necessity
can be made under the circumstances of this case so as to
justify production. Under ordinary conditions, forcing an attorney
to repeat or write out all that witnesses have told him and to
deliver the account
Page 329 U. S. 513
to his adversary gives rise to grave dangers of inaccuracy and
untrustworthiness. No legitimate purpose is served by such
production. The practice forces the attorney to testify as to what
he remembers or what he saw fit to write down regarding
witnesses' remarks. Such testimony could not qualify as
evidence, and to use it for impeachment or corroborative
purposes would make the attorney much less an officer of the
court and much more an ordinary witness. The standards of the
profession would thereby suffer.

We fully appreciate the widespread controversy among the


members of the legal profession over the problem raised by this
case. [Footnote 11] It is a problem that rests on what
Page 329 U. S. 514
has been one of the most hazy frontiers of the discovery
process. But, until some rule or statute definitely prescribes
otherwise, we are not justified in permitting discovery in a
situation of this nature as a matter of unqualified right. When
Rule 26 and the other discovery rules were adopted, this Court
and the members of the bar in general certainly did not believe
or contemplate that all the files and mental processes of lawyers
were thereby opened to the free scrutiny of their adversaries.
And we refuse to interpret the rules at this time so as to reach
so harsh and unwarranted a result.
We therefore affirm the judgment of the Circuit Court of Appeals.
Affirmed.

Denial of production of this nature does not mean that any


material, nonprivileged facts can be hidden from the petitioner in
this case. He need not be unduly hindered in the preparation of
his case, in the discovery of facts, or in his anticipation of his
opponents' position. Searching interrogatories directed to
Fortenbaugh and the tug owners, production of written
documents and statements upon a proper showing, and direct
interviews with the witnesses themselves all serve to reveal the
facts in Fortenbaugh's possession to the fullest possible extent
consistent with public policy. Petitioner's counsel frankly admits
that he wants the oral statements only to help prepare himself to
examine witnesses and to make sure that he has overlooked
nothing. That is insufficient under the circumstances to permit
him an exception to the policy underlying the privacy of
Fortenbaugh's professional activities. If there should be a rare
situation justifying production of these matters, petitioner's case
is not of that type.

A.C. No. 5108

May 26, 2005

ROSA F. MERCADO, complainant,


vs.
ATTY. JULITO D. VITRIOLO, respondent.
DECISION
PUNO, J.:
Rosa F. Mercado filed the instant administrative complaint
against Atty. Julito D. Vitriolo, seeking his disbarment from the
practice of law. The complainant alleged that respondent
maliciously instituted a criminal case for falsification of public

document against her, a former client, based on confidential


information gained from their attorney-client relationship.
Let us first hearken to the facts.
Complainant is a Senior Education Program Specialist of the
Standards Development Division, Office of Programs and
Standards while respondent is a Deputy Executive Director IV of
the Commission on Higher Education (CHED).1
Complainant's husband filed Civil Case No. 40537 entitled
"Ruben G. Mercado v. Rosa C. Francisco," for annulment of
their marriage with the Regional Trial Court (RTC) of Pasig City.
This annulment case had been dismissed by the trial court, and
the dismissal became final and executory on July 15, 1992. 2
In August 1992, Atty. Anastacio P. de Leon, counsel of
complainant, died. On February 7, 1994, respondent entered his
appearance before the trial court as collaborating counsel for
complainant.3
On March 16, 1994, respondent filed his Notice of Substitution
of Counsel,4 informing the RTC of Pasig City that he has been
appointed as counsel for the complainant, in substitution of Atty.
de Leon.
It also appears that on April 13, 1999, respondent filed a
criminal action against complainant before the Office of the City
Prosecutor, Pasig City, entitled "Atty. Julito Vitriolo, et al. v. Rose
Dela Cruz F. Mercado," and docketed as I.S. No. PSG 99-9823,
for violation of Articles 171 and 172 (falsification of public
document) of the Revised Penal Code. 5 Respondent alleged
that complainant made false entries in the Certificates of Live
Birth of her children, Angelica and Katelyn Anne. More
specifically, complainant allegedly indicated in said Certificates
of Live Birth that she is married to a certain Ferdinand
Fernandez, and that their marriage was solemnized on April 11,
1979, when in truth, she is legally married to Ruben G. Mercado
and their marriage took place on April 11, 1978.

Complainant denied the accusations of respondent against her.


She denied using any other name than "Rosa F. Mercado." She
also insisted that she has gotten married only once, on April 11,
1978, to Ruben G. Mercado.
In addition, complainant Mercado cited other charges against
respondent that are pending before or decided upon by other
tribunals (1) libel suit before the Office of the City Prosecutor,
Pasig City;6 (2) administrative case for dishonesty, grave
misconduct, conduct prejudicial to the best interest of the
service, pursuit of private business, vocation or profession
without the permission required by Civil Service rules and
regulations, and violations of the "Anti-Graft and Corrupt
Practices Act," before the then Presidential Commission Against
Graft and Corruption;7 (3) complaint for dishonesty, grave
misconduct, and conduct prejudicial to the best interest of the
service before the Office of the Ombudsman, where he was
found guilty of misconduct and meted out the penalty of one
month suspension without pay; 8 and, (4) the Information for
violation of Section 7(b)(2) of Republic Act No. 6713, as
amended, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees before the
Sandiganbayan.9
Complainant Mercado alleged that said criminal complaint for
falsification of public document (I.S. No. PSG 99-9823)
disclosed confidential facts and information relating to the civil
case for annulment, then handled by respondent Vitriolo as her
counsel. This prompted complainant Mercado to bring this
action against respondent. She claims that, in filing the criminal
case for falsification, respondent is guilty of breaching their
privileged and confidential lawyer-client relationship, and should
be disbarred.
Respondent filed his Comment/Motion to Dismiss on November
3, 1999 where he alleged that the complaint for disbarment was
all hearsay, misleading and irrelevant because all the
allegations leveled against him are subject of separate factfinding bodies. Respondent claimed that the pending cases

against him are not grounds for disbarment, and that he is


presumed to be innocent until proven otherwise. 10 He also
states that the decision of the Ombudsman finding him guilty of
misconduct and imposing upon him the penalty of suspension
for one month without pay is on appeal with the Court of
Appeals. He adds that he was found guilty, only of simple
misconduct, which he committed in good faith.11
In addition, respondent maintains that his filing of the criminal
complaint for falsification of public documents against
complainant does not violate the rule on privileged
communication between attorney and client because the bases
of the falsification case are two certificates of live birth which are
public documents and in no way connected with the confidence
taken during the engagement of respondent as counsel.
According to respondent, the complainant confided to him as
then counsel only matters of facts relating to the annulment
case. Nothing was said about the alleged falsification of the
entries in the birth certificates of her two daughters. The birth
certificates are filed in the Records Division of CHED and are
accessible to anyone.12

On August 6, 2003, complainant, upon receiving a copy of the


IBP report and recommendation, wrote Chief Justice Hilario
Davide, Jr., a letter of desistance. She stated that after the
passage of so many years, she has now found forgiveness for
those who have wronged her.
At the outset, we stress that we shall not inquire into the merits
of the various criminal and administrative cases filed against
respondent. It is the duty of the tribunals where these cases are
pending to determine the guilt or innocence of the respondent.
We also emphasize that the Court is not bound by any
withdrawal of the complaint or desistance by the complainant.
The letter of complainant to the Chief Justice imparting
forgiveness upon respondent is inconsequential in disbarment
proceedings.
We now resolve whether respondent violated the rule on
privileged communication between attorney and client when he
filed a criminal case for falsification of public document against
his former client.

In a Resolution dated February 9, 2000, this Court referred the


administrative case to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation. 13

A brief discussion of the nature of the relationship between


attorney and client and the rule on attorney-client privilege that
is designed to protect such relation is in order.

The IBP Commission on Bar Discipline set two dates for hearing
but complainant failed to appear in both. Investigating
Commissioner Rosalina R. Datiles thus granted respondent's
motion to file his memorandum, and the case was submitted for
resolution based on the pleadings submitted by the parties. 14

In engaging the services of an attorney, the client reposes on


him special powers of trust and confidence. Their relationship is
strictly personal and highly confidential and fiduciary. The
relation is of such delicate, exacting and confidential nature that
is required by necessity and public interest. 15 Only by such
confidentiality and protection will a person be encouraged to
repose his confidence in an attorney. The hypothesis is that
abstinence from seeking legal advice in a good cause is an evil
which is fatal to the administration of justice. 16 Thus, the
preservation and protection of that relation will encourage a
client to entrust his legal problems to an attorney, which is of
paramount importance to the administration of justice. 17 One
rule adopted to serve this purpose is the attorney-client

On June 21, 2003, the IBP Board of Governors approved the


report of investigating commissioner Datiles, finding the
respondent guilty of violating the rule on privileged
communication between attorney and client, and recommending
his suspension from the practice of law for one (1) year.

privilege: an attorney is to keep inviolate his client's secrets or


confidence and not to abuse them.18 Thus, the duty of a lawyer
to preserve his client's secrets and confidence outlasts the
termination of the attorney-client relationship, 19 and continues
even after the client's death.20 It is the glory of the legal
profession that its fidelity to its client can be depended on, and
that a man may safely go to a lawyer and converse with him
upon his rights or supposed rights in any litigation with absolute
assurance that the lawyer's tongue is tied from ever disclosing
it.21 With full disclosure of the facts of the case by the client to
his attorney, adequate legal representation will result in the
ascertainment and enforcement of rights or the prosecution or
defense of the client's cause.
Now, we go to the rule on attorney-client privilege. Dean
Wigmore cites the factors essential to establish the existence of
the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except the protection be
waived.22
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a prospective
attorney-client relationship, and it is by reason of this
relationship that the client made the communication.
Matters disclosed by a prospective client to a lawyer are
protected by the rule on privileged communication even if the
prospective client does not thereafter retain the lawyer or the
latter declines the employment. 23 The reason for this is to make
the prospective client free to discuss whatever he wishes with
the lawyer without fear that what he tells the lawyer will be

divulged or used against him, and for the lawyer to be equally


free to obtain information from the prospective client. 24
On the other hand, a communication from a (prospective) client
to a lawyer for some purpose other than on account of the
(prospective) attorney-client relation is not privileged. Instructive
is the case of Pfleider v. Palanca,25 where the client and his
wife leased to their attorney a 1,328-hectare agricultural land for
a period of ten years. In their contract, the parties agreed,
among others, that a specified portion of the lease rentals would
be paid to the client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The client
alleged that the list of creditors which he had "confidentially"
supplied counsel for the purpose of carrying out the terms of
payment contained in the lease contract was disclosed by
counsel, in violation of their lawyer-client relation, to parties
whose interests are adverse to those of the client. As the client
himself, however, states, in the execution of the terms of the
aforesaid lease contract between the parties, he furnished
counsel with the "confidential" list of his creditors. We ruled that
this indicates that client delivered the list of his creditors to
counsel not because of the professional relation then existing
between them, but on account of the lease agreement. We then
held that a violation of the confidence that accompanied the
delivery of that list would partake more of a private and civil
wrong than of a breach of the fidelity owing from a lawyer to his
client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a
presumption of confidentiality.26 The client must intend the
communication to be confidential.27
A confidential communication refers to information transmitted
by voluntary act of disclosure between attorney and client in
confidence and by means which, so far as the client is aware,
discloses the information to no third person other than one

reasonably necessary for the transmission of the information or


the accomplishment of the purpose for which it was given. 28
Our jurisprudence on the matter rests on quiescent ground.
Thus, a compromise agreement prepared by a lawyer pursuant
to the instruction of his client and delivered to the opposing
party,29 an offer and counter-offer for settlement,30 or a
document given by a client to his counsel not in his professional
capacity,31 are not privileged communications, the element of
confidentiality not being present. 32
(3) The legal advice must be sought from the attorney in his
professional capacity.33
The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking
legal advice from his attorney as to his rights or obligations. The
communication must have been transmitted by a client to his
attorney for the purpose of seeking legal advice. 34
If the client seeks an accounting service, 35 or business or
personal assistance,36 and not legal advice, the privilege does
not attach to a communication disclosed for such purpose.
Applying all these rules to the case at bar, we hold that the
evidence on record fails to substantiate complainant's
allegations. We note that complainant did not even specify the
alleged communication in confidence disclosed by respondent.
All her claims were couched in general terms and lacked
specificity. She contends that respondent violated the rule on
privileged communication when he instituted a criminal action
against her for falsification of public documents because the
criminal complaint disclosed facts relating to the civil case for
annulment then handled by respondent. She did not, however,
spell out these facts which will determine the merit of her
complaint. The Court cannot be involved in a guessing game as
to the existence of facts which the complainant must prove.

Indeed, complainant failed to attend the hearings at the IBP.


Without any testimony from the complainant as to the specific
confidential information allegedly divulged by respondent
without her consent, it is difficult, if not impossible to determine if
there was any violation of the rule on privileged communication.
Such confidential information is a crucial link in establishing a
breach of the rule on privileged communication between
attorney and client. It is not enough to merely assert the
attorney-client privilege.37 The burden of proving that the
privilege applies is placed upon the party asserting the
privilege.38
IN VIEW WHEREOF, the complaint against respondent Atty.
Julito D. Vitriolo is hereby DISMISSED for lack of merit.
SO ORDERED.

A.C. No. 6711

July 3, 2007

MA. LUISA HADJULA, complainant,


vs.
ATTY. ROCELES F. MADIANDA, respondent.
DECISION
GARCIA, J.:
Under consideration is Resolution No. XVI-2004-472 of the
Board of Governors, Integrated Bar of the Philippines (IBP),
relative to the complaint for disbarment filed by herein
complainant Ma. Luisa Hadjula against respondent Atty.
Roceles F. Madianda.
The case started when, in an AFFIDAVIT-COMPLAINT1 bearing
date September 7, 2002 and filed with the IBP Commission on
Bar Discipline, complainant charged Atty. Roceles F. Madianda

with violation of Article 2092 of the Revised Penal Code and


Canon Nos. 15.02 and 21.02 of the Code of Professional
Responsibility.
In said affidavit-complaint, complainant alleged that she and
respondent used to be friends as they both worked at the
Bureau of Fire Protection (BFP) whereat respondent was the
Chief Legal Officer while she was the Chief Nurse of the
Medical, Dental and Nursing Services. Complainant claimed
that, sometime in 1998, she approached respondent for some
legal advice. Complainant further alleged that, in the course of
their conversation which was supposed to be kept confidential,
she disclosed personal secrets and produced copies of a
marriage contract, a birth certificate and a baptismal certificate,
only to be informed later by the respondent that she
(respondent) would refer the matter to a lawyer friend. It was
malicious, so complainant states, of respondent to have refused
handling her case only after she had already heard her secrets.
Continuing, complainant averred that her friendship with
respondent soured after her filing, in the later part of 2000, of
criminal and disciplinary actions against the latter. What, per
complainant's account, precipitated the filing was when
respondent, then a member of the BFP promotion board,
demanded a cellular phone in exchange for the complainant's
promotion.
According to complainant, respondent, in retaliation to the filing
of the aforesaid actions, filed a COUNTER COMPLAINT 3 with
the Ombudsman charging her (complainant) with violation of
Section 3(a) of Republic Act No. 3019,4 falsification of public
documents and immorality, the last two charges being based on
the disclosures complainant earlier made to respondent. And
also on the basis of the same disclosures, complainant further
stated, a disciplinary case was also instituted against her before
the Professional Regulation Commission.
Complainant seeks the suspension and/or disbarment of
respondent for the latter's act of disclosing personal secrets and

confidential information she revealed in the course of seeking


respondent's legal advice.
In an order dated October 2, 2002, the IBP Commission on Bar
Discipline required respondent to file her answer to the
complaint.
In her answer, styled as COUNTER-AFFIDAVIT,5 respondent
denied giving legal advice to the complainant and dismissed any
suggestion about the existence of a lawyer-client relationship
between them. Respondent also stated the observation that the
supposed confidential data and sensitive documents adverted to
are in fact matters of common knowledge in the BFP. The
relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA
C. HADJULA in paragraph 4 of her AFFIDAVITCOMPLAINT for reason that she never WAS MY CLIENT
nor we ever had any LAWYER-CLIENT RELATIONSHIP
that ever existed ever since and that never obtained any
legal advice from me regarding her PERSONAL
PROBLEMS or PERSONAL SECRETS. She likewise
never delivered to me legal documents much more told
me some confidential information or secrets. That is
because I never entertain LEGAL QUERIES or
CONSULTATION regarding PERSONAL MATTERS since
I know as a LAWYER of the Bureau of Fire Protection
that I am not allowed to privately practice law and it might
also result to CONFLICT OF INTEREST. As a matter of
fact, whenever there will be PERSONAL MATTERS
referred to me, I just referred them to private law
practitioners and never entertain the same, NOR listen to
their stories or examine or accept any document.
9. I specifically deny the allegation of F/SUPT. MA. LUISA
C. HADJULA in paragraph 8 of her AFFIDAVITCOMPLAINT, the truth of the matter is that her ILLICIT
RELATIONSHIP and her illegal and unlawful activities are
known in the Bureau of Fire Protection since she also

filed CHILD SUPPORT case against her lover where


she has a child .
Moreover, the alleged DOCUMENTS she purportedly
have shown to me sometime in 1998, are all part of
public records .
Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing
the instant case just to get even with me or to force me to
settle and withdraw the CASES I FILED AGAINST HER
since she knows that she will certainly be DISMISSED
FROM SERVICE, REMOVED FROM THE PRC ROLL
and CRIMINALLY CONVICTED of her ILLICIT,
IMMORAL, ILLEGAL and UNLAWFUL ACTS.
On October 7, 2004, the Investigating Commissioner of the IBP
Commission on Bar Discipline came out with a Report and
Recommendation, stating that the information related by
complainant to the respondent is "protected under the attorneyclient privilege communication." Prescinding from this postulate,
the Investigating Commissioner found the respondent to have
violated legal ethics when she "[revealed] information given to
her during a legal consultation," and accordingly recommended
that respondent be reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully
recommended that respondent Atty. Roceles Madianda
be reprimanded for revealing the secrets of the
complainant.
On November 4, 2004, the IBP Board of Governors issued
Resolution No. XVI-2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this
Resolution as Annex "A"; and , finding the
recommendation fully supported by the evidence on

record and the applicable laws and rules, and


considering the actuation of revealing information given
to respondent during a legal consultation, Atty. Roceles
Madianda is hereby REPRIMANDED.
We AGREE with the recommendation and the premises holding
it together.
As it were, complainant went to respondent, a lawyer who
incidentally was also then a friend, to bare what she considered
personal secrets and sensitive documents for the purpose of
obtaining legal advice and assistance. The moment complainant
approached the then receptive respondent to seek legal advice,
a veritable lawyer-client relationship evolved between the two.
Such relationship imposes upon the lawyer certain restrictions
circumscribed by the ethics of the profession. Among the
burdens of the relationship is that which enjoins the lawyer,
respondent in this instance, to keep inviolate confidential
information acquired or revealed during legal consultations. The
fact that one is, at the end of the day, not inclined to handle the
client's case is hardly of consequence. Of little moment, too, is
the fact that no formal professional engagement follows the
consultation. Nor will it make any difference that no contract
whatsoever was executed by the parties to memorialize the
relationship. As we said in Burbe v. Magulta,6 A lawyer-client relationship was established from the very
first moment complainant asked respondent for legal
advise regarding the former's business. To constitute
professional employment, it is not essential that the client
employed the attorney professionally on any previous
occasion.
It is not necessary that any retainer be paid, promised, or
charged; neither is it material that the attorney consulted
did not afterward handle the case for which his service
had been sought.

It a person, in respect to business affairs or troubles of


any kind, consults a lawyer with a view to obtaining
professional advice or assistance, and the attorney
voluntarily permits or acquiesces with the consultation,
then the professional employments is established.
Likewise, a lawyer-client relationship exists
notwithstanding the close personal relationship between
the lawyer and the complainant or the non-payment of
the former's fees.
Dean Wigmore lists the essential factors to establish the
existence of the attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except the protection be waived. 7
With the view we take of this case, respondent indeed breached
his duty of preserving the confidence of a client. As found by the
IBP Investigating Commissioner, the documents shown and the
information revealed in confidence to the respondent in the
course of the legal consultation in question, were used as bases
in the criminal and administrative complaints lodged against the
complainant.
The purpose of the rule of confidentiality is actually to protect
the client from possible breach of confidence as a result of a
consultation with a lawyer.
The seriousness of the respondent's offense notwithstanding,
the Court feels that there is room for compassion, absent
compelling evidence that the respondent acted with ill-will.
Without meaning to condone the error of respondent's ways,
what at bottom is before the Court is two former friends
becoming bitter enemies and filing charges and counter-charges

against each other using whatever convenient tools and data


were readily available. Unfortunately, the personal information
respondent gathered from her conversation with complainant
became handy in her quest to even the score. At the end of the
day, it appears clear to us that respondent was actuated by the
urge to retaliate without perhaps realizing that, in the process of
giving vent to a negative sentiment, she was violating the rule
on confidentiality.
IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is
hereby REPRIMANDED and admonished to be circumspect in
her handling of information acquired as a result of a lawyerclient relationship. She is also STERNLY WARNED against a
repetition of the same or similar act complained of.
A.C. No. 9094

August 15, 2012

SANTOS VENTURA HOCORMA FOUNDATION, INC.,


represented by GABRIEL H. ABAD, Complainant,
vs.
ATTY. RICHARD V. FUNK, Respondent.
DECISION
ABAD, J.:
This is a disbarment case against a lawyer who sued a former
client in representation of a new one.
The Facts and the Case
Complainant Santos Ventura Hocorma Foundation, Inc.
(Hocorma Foundation) filed a complaint for disbarment against
respondent Atty. Richard Funk. It alleged that Atty. Funk used to
work as corporate secretary, counsel, chief executive officer,
and trustee of the foundation from 1983 to 1985. 1 He also
served as its counsel in several criminal and civil cases.

Hocorma Foundation further alleged that on November 25, 2006


Atty. Funk filed an action for quieting of title and damages
against Hocorma Foundation on behalf of Mabalacat Institute,
Inc. (Mabalacat Institute). Atty. Funk did so, according to the
foundation, using information that he acquired while serving as
its counsel in violation of the Code of Professional
Responsibility (CPR) and in breach of attorney-client
relationship.2
In his answer, Atty. Funk averred that Don Teodoro V. Santos
(Santos) organized Mabalacat Institute in 1950 and Hocorma
Foundation in 1979. Santos hired him in January 1982 to assist
Santos and the organizations he established, including the
Mabalacat Institute, in its legal problems. In 1983 the Mabalacat
Institute made Atty. Funk serve as a director and legal counsel. 3
Subsequently, according to Atty. Funk, when Santos got
involved in various litigations, he sold or donated substantial
portions of his real and personal properties to the Hocorma
Foundation. Santos hired Atty. Funk for this purpose. The latter
emphasized that, in all these, the attorney-client relationship
was always between Santos and him. He was more of Santos'
personal lawyer than the lawyer of Hocorma Foundation. 4
Atty. Funk claimed that before Santos left for America in August
1983 for medical treatment, he entered into a retainer
agreement with him. They agreed that Atty. Funk would be paid
for his legal services out of the properties that he donated or
sold to the Hocorma Foundation. The foundation approved that
compensation agreement on December 13, 1983. But it
reneged and would not pay Atty. Funk's legal fees. 5
Atty. Funk also claimed that Santos executed a Special Power
of Attorney (SPA) in his favor on August 13, 1983. The SPA
authorized him to advise Hocorma Foundation and follow up
with it Santos' sale or donation of a 5-hectare land in Pampanga
to Mabalacat Institute, covered by TCT 19989-R. Out of these,
two hectares already comprised its school site. The remaining
three hectares were for campus expansion.

Atty. Funk was to collect all expenses for the property transfer
from Hocorma Foundation out of funds that Santos provided. It
was Santos' intention since 1950 to give the land to Mabalacat
Institute free of rent and expenses. The SPA also authorized
Atty. Funk to register the 5-hectare land in the name of
Mabalacat Institute so a new title could be issued to it, separate
from the properties of Hocorma Foundation. 6 When Santos
issued the SPA, Atty. Funk was Mabalacat Institute's director
and counsel. He was not yet Hocorma Foundation's counsel. 7
When Santos executed the deeds of conveyances, Atty. Funk's
clients were only Santos and Mabalacat Institute. 8
According to Atty. Funk, on August 15, 1983 Santos suggested
to Hocorma Foundation's Board of Trustees the inclusion of Atty.
Funk in that board, a suggestion that the foundation followed. 9
After Santos died on September 14, 1983, Atty. Funk was
elected President of Mabalacat Institute, a position he had since
held.10
Atty. Funk claims that in 1985 when Hocorma Foundation
refused to pay his attorney's fees, he severed his professional
relationship with it. On November 9, 1989, four years later, he
filed a complaint against the foundation for collection of his
attorney's fees. The trial court, the Court of Appeals (CA), and
the Supreme Court decided the claim in his favor.11
After hearing, the Committee on Bar Discipline (CBD) found
Atty. Funk to have violated Canon 15, Rule 15.03 12 of the Code
of Professional Responsibility (CPR) with the aggravating
circumstance of a pattern of misconduct consisting of four court
appearances against his former client, the Hocorma Foundation.
The CBD recommended Atty. Funk's suspension from the
practice of law for one year.13 On April 16, 2010 the IBP Board of
Governors adopted and approved the CBD's report and
recommendation.14 Atty. Funk moved for reconsideration but the
IBP Board of Governors denied it on June 26, 2011.
The Issue Presented

The issue here is whether or not Atty. Funk betrayed the trust
and confidence of a former client in violation of the CPR when
he filed several actions against such client on behalf of a new
one.

foundation. Indeed, Atty. Funk collected attorney's fees from the


foundation for such services. Thus, he had an obligation not to
use any knowledge he acquired during that relationship,
including the fact that the property under litigation existed at all,
when he sued the foundation.

The Court's Ruling


Canon 15, Rule 15.03 of the CPR provides that a lawyer cannot
represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts. Here, it is
undeniable that Atty. Funk was formerly the legal counsel of
Hocorma Foundation. Years after terminating his relationship
with the foundation, he filed a complaint against it on behalf of
another client, the Mabalacat Institute, without the foundation's
written consent.
An attorney owes his client undivided allegiance. Because of the
highly fiduciary nature of their relationship, sound public policy
dictates that he be prohibited from representing conflicting
interests or discharging inconsistent duties.1wphi1 An attorney
may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his
present or former client. This rule is so absolute that good faith
and honest intention on the erring lawyer's part does not make it
inoperative.15
The reason for this is that a lawyer acquires knowledge of his
former client's doings, whether documented or not, that he
would ordinarily not have acquired were it not for the trust and
confidence that his client placed on him in the light of their
relationship. It would simply be impossible for the lawyer to
identify and erase such entrusted knowledge with faultless
precision or lock the same into an iron box when suing the
former client on behalf of a new one.
Here, the evidence shows that Hocorma Foundation availed
itself of the legal services of Atty. Funk in connection with,
among others, the transfer of one of the properties subject of
the several suits that the lawyer subsequently filed against the

The Court finds it fitting ti adopt the CBD's recommendation as


well as the IBP Board of Governor's resolution respecting the
case.
WHEREFORE, the Court AFFIRMS the resolution of the Board
of Governors of the Integrated Bar of the Philippines dated April
16, 2010 and June 26, 2011 and SUSPENDS Atty. Richard Funk
from the practice of law for one year effective immediately.
Serve copies of this decision upon the Office of the Court
Administration for dissemination, the Integrated Bar of the
Philippines, and the Office of the Bar Confidant so the latter may
attach its copy to his record.
SO ORDERED.

A.C. No. 6174

November 16, 2011

LYDIA CASTRO-JUSTO, Complainant,


vs.
ATTY. RODOLFO T. GALING, Respondent.
DECISION
PEREZ, J.:
Before us for consideration is Resolution No. XVIII-2007-196 1 of
the Board of Governors, Integrated Bar of the Philippines (IBP),
relative to the complaint2 for disbarment filed by Lydia CastroJusto against Atty. Rodolfo T. Galing.

Complainant Justo alleged that sometime in April 2003, she


engaged the services of respondent Atty. Galing in connection
with dishonored checks issued by Manila City Councilor Arlene
W. Koa (Ms. Koa). After she paid his professional fees, the
respondent drafted and sent a letter to Ms. Koa demanding
payment of the checks.3 Respondent advised complainant to
wait for the lapse of the period indicated in the demand letter
before filing her complaint.
On 10 July 2003, complainant filed a criminal complaint against
Ms. Koa for estafa and violation of Batas Pambansa Blg. 22
before the Office of the City Prosecutor of Manila.4
On 27 July 2003, she received a copy of a Motion for
Consolidation5 filed by respondent for and on behalf of Ms. Koa,
the accused in the criminal cases, and the latters daughter
Karen Torralba (Ms. Torralba). Further, on 8 August 2003,
respondent appeared as counsel for Ms. Koa before the
prosecutor of Manila.
Complainant submits that by representing conflicting interests,
respondent violated the Code of Professional Responsibility.
In his Comment,6 respondent denied the allegations against
him. He admitted that he drafted a demand letter for
complainant but argued that it was made only in deference to
their long standing friendship and not by reason of a
professional engagement as professed by complainant. He
denied receiving any professional fee for the services he
rendered. It was allegedly their understanding that complainant
would have to retain the services of another lawyer. He alleged
that complainant, based on that agreement, engaged the
services of Atty. Manuel A. Ao.
To bolster this claim, respondent pointed out that the complaint
filed by complainant against Ms. Koa for estafa and violation of
B.P. Blg. 22 was based not on the demand letter he drafted but
on the demand letter prepared by Atty. Manuel A. Ao.

Respondent contended that he is a close friend of the opposing


parties in the criminal cases. He further contended that
complainant Justo and Ms. Koa are likewise long time friends,
as in fact, they are "comares" for more than 30 years since
complainant is the godmother of Ms. Torralba.7 Respondent
claimed that it is in this light that he accommodated Ms. Koa
and her daughters request that they be represented by him in
the cases filed against them by complainant and complainants
daughter. He maintained that the filing of the Motion for
Consolidation which is a non-adversarial pleading does not
evidence the existence of a lawyer-client relationship between
him and Ms. Koa and Ms. Torralba. Likewise, his appearance in
the joint proceedings should only be construed as an effort on
his part to assume the role of a moderator or arbiter of the
parties.
He insisted that his actions were merely motivated by an
intention to help the parties achieve an out of court settlement
and possible reconciliation. He reported that his efforts proved
fruitful insofar as he had caused Ms. Koa to pay complainant the
amount of P50,000.00 in settlement of one of the two checks
subject of I.S. No. 03G-19484-86.
Respondent averred that the failure of Ms. Koa and Ms. Torralba
to make good the other checks caused a lot of consternation on
the part of complainant. This allegedly led her to vent her ire on
respondent and file the instant administrative case for conflict of
interest.
In a resolution dated 19 October 2007, the Board of Governors
of the IBP adopted and approved with modification the findings
of its Investigating Commissioner. They found respondent guilty
of violating Canon 15, Rule 15.03 of the Code of Professional
Responsibility by representing conflicting interests and for his
daring audacity and for the pronounced malignancy of his act. It
was recommended that he be suspended from the practice of
law for one (1) year with a warning that a repetition of the same
or similar acts will be dealt with more severely.8

We agree with the Report and Recommendation of the


Investigating Commissioner,9 as adopted by the Board of
Governors of the IBP.
It was established that in April 2003, respondent was
approached by complainant regarding the dishonored checks
issued by Manila City Councilor Koa.
It was also established that on 25 July 2003, a Motion for
Consolidation was filed by respondent in I.S. No. 03G-19484-86
entitled "Lydia Justo vs. Arlene Koa" and I.S. No. 03G-19582-84
entitled "Lani C. Justo vs. Karen Torralba". Respondent stated
that the movants in these cases are mother and daughter while
complainants are likewise mother and daughter and that these
cases arose out from the same transaction. Thus, movants and
complainants will be adducing the same sets of evidence and
witnesses.
Respondent argued that no lawyer-client relationship existed
between him and complainant because there was no
professional fee paid for the services he rendered. Moreover, he
argued that he drafted the demand letter only as a personal
favor to complainant who is a close friend.
We are not persuaded. A lawyer-client relationship can exist
notwithstanding the close friendship between complainant and
respondent. The relationship was established the moment
complainant sought legal advice from respondent regarding the
dishonored checks. By drafting the demand letter respondent
further affirmed such relationship. The fact that the demand
letter was not utilized in the criminal complaint filed and that
respondent was not eventually engaged by complainant to
represent her in the criminal cases is of no moment. As
observed by the Investigating Commissioner, by referring to
complainant Justo as "my client" in the demand letter sent to the
defaulting debtor10, respondent admitted the existence of the
lawyer-client relationship. Such admission effectively estopped
him from claiming otherwise.

Likewise, the non-payment of professional fee will not exculpate


respondent from liability. Absence of monetary consideration
does not exempt lawyers from complying with the prohibition
against pursuing cases with conflicting interests. The prohibition
attaches from the moment the attorney-client relationship is
established and extends beyond the duration of the professional
relationship.11 We held in Burbe v. Atty. Magulta12 that it is not
necessary that any retainer be paid, promised or charged;
neither is it material that the attorney consulted did not afterward
handle the case for which his service had been sought. 13
Under Rule 15.03, Canon 15 of the Code of Professional
Responsibility, "[a] lawyer shall not represent conflicting
interests except by written consent of all concerned given after a
full disclosure of the facts." Respondent was therefore bound to
refrain from representing parties with conflicting interests in a
controversy. By doing so, without showing any proof that he had
obtained the written consent of the conflicting parties,
respondent should be sanctioned.
The prohibition against representing conflicting interest is
founded on principles of public policy and good taste. 14 In the
course of the lawyer-client relationship, the lawyer learns of the
facts connected with the clients case, including the weak and
strong points of the case. The nature of the relationship is,
therefore, one of trust and confidence of the highest degree. 15
It behooves lawyers not only to keep inviolate the clients
confidence, but also to avoid the appearance of treachery and
double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is of paramount
importance in the administration of justice.16
The case of Hornilla v. Atty. Salunat17 is instructive on this
concept, thus:
There is conflict of interest when a lawyer represents
inconsistent interests of two or more opposing parties.1awp++i1
The test is whether or not in behalf of one client, it is the

lawyers duty to fight for an issue or claim, but it is his duty to


oppose it for the other client. In brief, if he argues for one client,
this argument will be opposed by him when he argues for the
other client.18 This rule covers not only cases in which
confidential communications have been confided, but also those
in which no confidence has been bestowed or will be used. 19
Also, there is conflict of interests if the acceptance of the new
retainer will require the attorney to perform an act which will
injuriously affect his first client in any matter in which he
represents him and also whether he will be called upon in his
new relation to use against his first client any knowledge
acquired through their connection.20 Another test of the
inconsistency of interests is whether the acceptance of a new
relation will prevent an attorney from the full discharge of his
duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double dealing in the performance
thereof.21

guidance. The Office of the Bar Confidant is directed to append


a copy of this Decision to respondents record as member of the
Bar.

The excuse proffered by respondent that it was not him but Atty.
Ao who was eventually engaged by complainant will not
exonerate him from the clear violation of Rule 15.03 of the Code
of Professional Responsibility. The take- over of a clients cause
of action by another lawyer does not give the former lawyer the
right to represent the opposing party. It is not only malpractice
but also constitutes a violation of the confidence resulting from
the attorney-client relationship.

We resolve this disbarment complaint against Atty. Clemencio


Sabitsana, Jr. who is charged of: (1) violating the lawyers duty
to preserve confidential information received from his client; 1
and (2) violating the prohibition on representing conflicting
interests.2

Considering that this is respondents first infraction, the


disbarment sought in the complaint is deemed to be too severe.
As recommended by the Board of Governors of the IBP, the
suspension from the practice of law for one (1) year is
warranted.
Accordingly, the Court resolved to SUSPEND Atty. Rodolfo T.
Galing from the practice of law for one (1) year, with a
WARNING that a repetition of the same or similar offense will
warrant a more severe penalty. Let copies of this Decision be
furnished all courts, the Office of the Bar Confidant and the
Integrated Bar of the Philippines for their information and

SO ORDERED.

A.C. No. 5098

April 11, 2012

JOSEFINA M. ANION, Complainant,


vs.
ATTY. CLEMENCIO SABITSANA, JR., Respondent.
DECISION
BRION, J.:

In her complaint, Josefina M. Anion (complainant) related that


she previously engaged the legal services of Atty. Sabitsana in
the preparation and execution in her favor of a Deed of Sale
over a parcel of land owned by her late common-law husband,
Brigido Caneja, Jr. Atty. Sabitsana allegedly violated her
confidence when he subsequently filed a civil case against her
for the annulment of the Deed of Sale in behalf of Zenaida L.
Caete, the legal wife of Brigido Caneja, Jr. The complainant
accused Atty. Sabitsana of using the confidential information he
obtained from her in filing the civil case.
Atty. Sabitsana admitted having advised the complainant in the
preparation and execution of the Deed of Sale. However, he
denied having received any confidential information. Atty.
Sabitsana asserted that the present disbarment complaint was

instigated by one Atty. Gabino Velasquez, Jr., the notary of the


disbarment complaint who lost a court case against him (Atty.
Sabitsana) and had instigated the complaint for this reason.
The Findings of the IBP Investigating Commissioner
In our Resolution dated November 22, 1999, we referred the
disbarment complaint to the Commission on Bar Discipline of
the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation. In his Report and
Recommendation dated November 28, 2003, IBP
Commissioner Pedro A. Magpayo Jr. found Atty. Sabitsana
administratively liable for representing conflicting interests. The
IBP Commissioner opined:
In Bautista vs. Barrios, it was held that a lawyer may not handle
a case to nullify a contract which he prepared and thereby take
up inconsistent positions. Granting that Zenaida L. Caete,
respondents present client in Civil Case No. B-1060 did not
initially learn about the sale executed by Bontes in favor of
complainant thru the confidences and information divulged by
complainant to respondent in the course of the preparation of
the said deed of sale, respondent nonetheless has a duty to
decline his current employment as counsel of Zenaida Caete in
view of the rule prohibiting representation of conflicting interests.
In re De la Rosa clearly suggests that a lawyer may not
represent conflicting interests in the absence of the written
consent of all parties concerned given after a full disclosure of
the facts. In the present case, no such written consent was
secured by respondent before accepting employment as Mrs.
Caetes counsel-of-record. x x x

for that which his duty to another client requires him to oppose.
In brief, if he argues for one client this argument will be opposed
by him when he argues for the other client. Such is the case
with which we are now confronted, respondent being asked by
one client to nullify what he had formerly notarized as a true and
valid sale between Bontes and the complainant. (footnotes
omitted)3
The IBP Commissioner recommended that Atty. Sabitsana be
suspended from the practice of law for a period of one (1) year.4
The Findings of the IBP Board of Governors
In a resolution dated February 27, 2004, the IBP Board of
Governors resolved to adopt and approve the Report and
Recommendation of the IBP Commissioner after finding it to be
fully supported by the evidence on record, the applicable laws
and rules.5 The IBP Board of Governors agreed with the IBP
Commissioners recommended penalty.
Atty. Sabitsana moved to reconsider the above resolution, but
the IBP Board of Governors denied his motion in a resolution
dated July 30, 2004.
The Issue
The issue in this case is whether Atty. Sabitsana is guilty of
misconduct for representing conflicting interests.
The Courts Ruling

xxx

After a careful study of the records, we agree with the findings


and recommendations of the IBP Commissioner and the IBP
Board of Governors.

Complainant and respondents present client, being contending


claimants to the same property, the conflict of interest is
obviously present. There is said to be inconsistency of interest
when on behalf of one client, it is the attorneys duty to contend

The relationship between a lawyer and his/her client should


ideally be imbued with the highest level of trust and confidence.
This is the standard of confidentiality that must prevail to
promote a full disclosure of the clients most confidential

information to his/her lawyer for an unhampered exchange of


information between them. Needless to state, a client can only
entrust confidential information to his/her lawyer based on an
expectation from the lawyer of utmost secrecy and discretion;
the lawyer, for his part, is duty-bound to observe candor,
fairness and loyalty in all dealings and transactions with the
client.6 Part of the lawyers duty in this regard is to avoid
representing conflicting interests, a matter covered by Rule
15.03, Canon 15 of the Code of Professional Responsibility
quoted below:
Rule 15.03. -A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts.
"The proscription against representation of conflicting interests
applies to a situation where the opposing parties are present
clients in the same action or in an unrelated action." 7 The
prohibition also applies even if the "lawyer would not be called
upon to contend for one client that which the lawyer has to
oppose for the other client, or that there would be no occasion
to use the confidential information acquired from one to the
disadvantage of the other as the two actions are wholly
unrelated."8 To be held accountable under this rule, it is "enough
that the opposing parties in one case, one of whom would lose
the suit, are present clients and the nature or conditions of the
lawyers respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients." 9
Jurisprudence has provided three tests in determining whether a
violation of the above rule is present in a given case.
One test is whether a lawyer is duty-bound to fight for an issue
or claim in behalf of one client and, at the same time, to oppose
that claim for the other
client.http://sc.judiciary.gov.ph/jurisprudence/2005/aug2005/ac_
6708.htm - _ftn Thus, if a lawyers argument for one client has
to be opposed by that same lawyer in arguing for the other
client, there is a violation of the rule.

Another test of inconsistency of interests is whether the


acceptance of a new relation would prevent the full discharge of
the lawyers duty of undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or double-dealing in the
performance of that
duty.http://sc.judiciary.gov.ph/jurisprudence/2005/aug2005/ac_6
708.htm - _ftn Still another test is whether the lawyer would be
called upon in the new relation to use against a former client
any confidential information acquired through their connection or
previous
employment.10http://sc.judiciary.gov.ph/jurisprudence/2005/aug2
005/ac_6708.htm - _ftn [emphasis ours]
On the basis of the attendant facts of the case, we find
substantial evidence to support Atty. Sabitsanas violation of the
above rule, as established by the following circumstances on
record:
One, his legal services were initially engaged by the
complainant to protect her interest over a certain
property. The records show that upon the legal advice of
Atty. Sabitsana, the Deed of Sale over the property was
prepared and executed in the complainants favor.
Two, Atty. Sabitsana met with Zenaida Caete to discuss
the latters legal interest over the property subject of the
Deed of Sale. At that point, Atty. Sabitsana already had
knowledge that Zenaida Caetes interest clashed with
the complainants interests.
Three, despite the knowledge of the clashing interests
between his two clients, Atty. Sabitsana accepted the
engagement from Zenaida Caete.
Four, Atty. Sabitsanas actual knowledge of the conflicting
interests between his two clients was demonstrated by
his own actions: first, he filed a case against the
complainant in behalf of Zenaida Caete; second, he
impleaded the complainant as the defendant in the case;

and third, the case he filed was for the annulment of the
Deed of Sale that he had previously prepared and
executed for the complainant.
By his acts, not only did Atty. Sabitsana agree to represent one
client against another client in the same action; he also
accepted a new engagement that entailed him to contend and
oppose the interest of his other client in a property in which his
legal services had been previously retained.
To be sure, Rule 15.03, Canon 15 of the Code of Professional
Responsibility provides an exception to the above prohibition.
However, we find no reason to apply the exception due to Atty.
Sabitsanas failure to comply with the requirements set forth
under the rule. Atty. Sabitsana did not make a full disclosure of
facts to the complainant and to Zenaida Caete before he
accepted the new engagement with Zenaida Caete. The
records likewise show that although Atty. Sabitsana wrote a
letter to the complainant informing her of Zenaida Caetes
adverse claim to the property covered by the Deed of Sale and,
urging her to settle the adverse claim; Atty. Sabitsana however
did not disclose to the complainant that he was also being
engaged as counsel by Zenaida Caete.11 Moreover, the
records show that Atty. Sabitsana failed to obtain the written
consent of his two clients, as required by Rule 15.03, Canon 15
of the Code of Professional Responsibility.
Accordingly, we find as the IBP Board of Governors did
Atty. Sabitsana guilty of misconduct for representing conflicting
interests. We likewise agree with the penalty of suspension for
one (1) year from the practice of law recommended by the IBP
Board of Governors. This penalty is consistent with existing
jurisprudence on the administrative offense of representing
conflicting interests.12
We note that Atty. Sabitsana takes exception to the IBP
recommendation on the ground that the charge in the complaint
was only for his alleged disclosure of confidential information,
not for representation of conflicting interests. To Atty. Sabitsana,

finding him liable for the latter offense is a violation of his due
process rights since he only answered the designated charge.
We find no violation of Atty. Sabitsanas due process rights.
Although there was indeed a specific charge in the complaint,
we are not unmindful that the complaint itself contained
allegations of acts sufficient to constitute a violation of the rule
on the prohibition against representing conflicting interests. As
stated in paragraph 8 of the complaint:
Atty. Sabitsana, Jr. accepted the commission as a Lawyer of
ZENAIDA CANEJA, now Zenaida Caete, to recover lands from
Complainant, including this land where lawyer Atty. Sabitsana,
Jr. has advised his client [complainant] to execute the second
sale[.]
Interestingly, Atty. Sabitsana even admitted these allegations in
his answer.13 He also averred in his Answer that:
6b. Because the defendant-to-be in the complaint (Civil Case
No. B-1060) that he would file on behalf of Zenaida CanejaCaete was his former client (herein complainant), respondent
asked [the] permission of Mrs. Caete (which she granted) that
he would first write a letter (Annex "4") to the complainant
proposing to settle the case amicably between them but
complainant ignored it. Neither did she object to respondents
handling the case in behalf of Mrs. Caete on the ground she is
now invoking in her instant complaint. So respondent felt free to
file the complaint against her.141wphi1
We have consistently held that the essence of due process is
simply the opportunity to be informed of the charge against
oneself and to be heard or, as applied to administrative
proceedings, the opportunity to explain ones side or the
opportunity to seek a reconsideration of the action or ruling
complained of.15 These opportunities were all afforded to Atty.
Sabitsana, as shown by the above circumstances.

All told, disciplinary proceedings against lawyers are sui


generis.16 In the exercise of its disciplinary powers, the Court
merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession. We likewise aim to
ensure the proper and honest administration of justice by
purging the profession of members who, by their misconduct,
have proven themselves no longer worthy to be entrusted with
the duties and responsibilities of an attorney.17 This is all that we
did in this case. Significantly, we did this to a degree very much
lesser than what the powers of this Court allows it to do in terms
of the imposable penalty. In this sense, we have already been
lenient towards respondent lawyer.
WHEREFORE, premises considered, the Court resolves to
ADOPT the findings and recommendations of the Commission
on Bar Discipline of the Integrated Bar of the Philippines. Atty.
Clemencio C. Sabitsana, Jr. is found GUILTY of misconduct for
representing conflicting interests in violation of Rule 15.03,
Canon 15 of the Code of Professional Responsibility. He is
hereby SUSPENDED for one (1) year from the practice of law.
Atty. Sabitsana is DIRECTED to inform the Court of the date of
his receipt of this Decision so that we can determine the
reckoning point when his suspension shall take effect.
SO ORDERED.

Adm. Case No. 6708 August 25, 2005


(CBD Case No. 01-874)
FELICITAS S. QUIAMBAO, Complainant,
vs.
ATTY. NESTOR A. BAMBA, Respondent.
RESOLUTION

DAVIDE, JR., C.J.:


We are aware of the hapless fact that there are not enough
lawyers to serve an exploding population. This unfortunate state
of affairs, however, will not seize this Court from exercising its
disciplinary power over lawyers culpable of serious
indiscretions. The incidence of public force must be deployed to
bear upon the community to eventually forge a legal profession
that provides quality, ethical, accessible, and cost-effective legal
service to our people and whose members are willing and able
to answer the call to public service.
In this administrative case for disbarment, complainant Felicitas
S. Quiambao charges respondent Atty. Nestor A. Bamba with
violation of the Code of Professional Responsibility for
representing conflicting interests when the latter filed a case
against her while he was at that time representing her in another
case, and for committing other acts of disloyalty and doubledealing.
From June 2000 to January 2001, the complainant was the
president and managing director of Allied Investigation Bureau,
Inc. (AIB), a family-owned corporation engaged in providing
security and investigation services. She avers that she procured
the legal services of the respondent not only for the corporate
affairs of AIB but also for her personal case. Particularly, the
respondent acted as her counsel of record in an ejectment case
against Spouses Santiago and Florita Torroba filed by her on 29
December 2000 before the Metropolitan Trial Court (MeTC) of
Paraaque City, which was docketed as Civil Case No. 11928.
She paid attorneys fees for respondents legal services in that
case.1 About six months after she resigned as AIB president, or
on 14 June 2001, the respondent filed on behalf of AIB a
complaint for replevin and damages against her before the
MeTC of Quezon City for the purpose of recovering from her the
car of AIB assigned to her as a service vehicle. This he did
without withdrawing as counsel of record in the ejectment case,
which was then still pending.2

Apart from the foregoing litigation matter, the complainant, in her


Position Paper, charges the respondent with acts of disloyalty
and double-dealing. She avers that the respondent proposed to
her that she organize her own security agency and that he
would assist her in its organization, causing her to resign as
president of AIB. The respondent indeed assisted her in
December 2000 in the formation of another security agency,
Quiambao Risk Management Specialists, Inc., (QRMSI), which
was later registered under complainants name, with the
respondent as a "silent partner" represented by his associate
Atty. Gerardo P. Hernandez. The respondent was paid attorneys
fees for his legal services in organizing and incorporating
QRMSI. He also planned to "steal" or "pirate" some of the more
important clients of AIB. While serving as legal counsel for AIB
and a "silent partner" of QRMSI, he convinced complainants
brother Leodegario Quiambao to organize another security
agency, San Esteban Security Services, Inc. (SESSI) where he
(the respondent) served as its incorporator, director, and
president. The respondent and Leodegario then illegally
diverted the funds of AIB to fund the incorporation of SESSI,
and likewise planned to eventually close down the operations of
AIB and transfer the business to SESSI.3
For his part, the respondent admits that he represented the
complainant in the aforementioned ejectment case and later
represented AIB in the replevin case against her. He, however,
denies that he was the "personal lawyer" of the complainant,
and avers that he was made to believe that it was part of his
function as counsel for AIB to handle even the "personal cases"
of its officers. Even assuming that the complainant confided to
him privileged information about her legal interests, the
ejectment case and the replevin case are unrelated cases
involving different issues and parties and, therefore, the
privileged information which might have been gathered from one
case would have no use in the other. At any rate, it was the
complainant herself who insisted that he stay as her counsel
despite the perceived differences among her, her brother, and
AIB over the motor vehicle subject of the replevin case. The

complainant even asked him to assist her in her monetary


claims against AIB.4
The respondent also denies the charge raised by the
complainant in her position paper that he agreed to be a "silent
partner" of QRMSI through his nominee, Atty. Gerardo P.
Hernandez, who was his former law partner. He declined
complainants offer to assume that role and suggested Atty.
Hernandez in his place; thus, 375 shares of stock were
registered in Atty. Hernandezs name as consideration of his
(Atty. Hernandezs) legal services as corporate secretary and
legal counsel of QRMSI. The respondent also denies that he
convinced complainants brother Leodegario to organize
another security agency and that the funds of AIB were
unlawfully diverted to SESSI. It was to complement the business
of AIB, which was then in danger of collapse, that SESSI was
established. Leodegarios wife and her son have the effective
control over SESSI. Respondents subscribed shareholdings in
SESSI comprise only 800 shares out of 12,500 subscribed
shares. He serves AIB and SESSI in different capacities: as
legal counsel of the former and as president of the latter.5
In his Report and Recommendation6 dated 31 August 2004, the
investigating commissioner of the IBP found the respondent
guilty of representing conflicting interests based on the following
undisputed facts: first, the respondent was still complainants
counsel of record in the ejectment case when he filed, as legal
counsel of AIB, the replevin case against her; and second, the
respondent was still the legal counsel of AIB when he advised
the complainant on the incorporation of another security agency,
QRMSI, and recommended his former law partner, Atty. Gerardo
Hernandez, to be its corporate secretary and legal counsel and
also when he conferred with Leodegario to organize another
security agency, SESSI, where the respondent became an
incorporator, stockholder, and president. Thus, the investigating
commissioner recommended that the respondent be suspended
from the practice of law for one year.

The IBP Board of Governors adopted and approved the


investigating commissioners report and recommendation, but
reduced the penalty from one year to a stern reprimand. 7
The issue in this case is whether the respondent is guilty of
misconduct for representing conflicting interests in contravention
of the basic tenets of the legal profession.
Rule 15.03, Canon 5 of the Code of Professional Responsibility
provides: "A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts." This prohibition is founded on principles
of public policy and good taste.8 In the course of a lawyer-client
relationship, the lawyer learns all the facts connected with the
clients case, including the weak and strong points of the case.
The nature of that relationship is, therefore, one of trust and
confidence of the highest degree.9 It behooves lawyers not only
to keep inviolate the clients confidence, but also to avoid the
appearance of treachery and double-dealing for only then can
litigants be encouraged to entrust their secrets to their lawyers,
which is of paramount importance in the administration of
justice.10
In broad terms, lawyers are deemed to represent conflicting
interests when, in behalf of one client, it is their duty to contend
for that which duty to another client requires them to oppose. 11
Developments in jurisprudence have particularized various tests
to determine whether a lawyers conduct lies within this
proscription. One test is whether a lawyer is duty-bound to fight
for an issue or claim in behalf of one client and, at the same
time, to oppose that claim for the other client.12 Thus, if a
lawyers argument for one client has to be opposed by that
same lawyer in arguing for the other client, there is a violation of
the rule.
Another test of inconsistency of interests is whether the
acceptance of a new relation would prevent the full discharge of
the lawyers duty of undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or double-dealing in the

performance of that duty.13 Still another test is whether the


lawyer would be called upon in the new relation to use against a
former client any confidential information acquired through their
connection or previous employment.14
The proscription against representation of conflicting interests
applies to a situation where the opposing parties are present
clients in the same action or in an unrelated action. It is of no
moment that the lawyer would not be called upon to contend for
one client that which the lawyer has to oppose for the other
client, or that there would be no occasion to use the confidential
information acquired from one to the disadvantage of the other
as the two actions are wholly unrelated. It is enough that the
opposing parties in one case, one of whom would lose the suit,
are present clients and the nature or conditions of the lawyers
respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients. 15
In this case, it is undisputed that at the time the respondent filed
the replevin case on behalf of AIB he was still the counsel of
record of the complainant in the pending ejectment case. We do
not sustain respondents theory that since the ejectment case
and the replevin case are unrelated cases fraught with different
issues, parties, and subject matters, the prohibition is
inapplicable. His representation of opposing clients in both
cases, though unrelated, obviously constitutes conflict of
interest or, at the least, invites suspicion of double-dealing.
While the respondent may assert that the complainant expressly
consented to his continued representation in the ejectment
case, the respondent failed to show that he fully disclosed the
facts to both his clients and he failed to present any written
consent of the complainant and AIB as required under Rule
15.03, Canon 15 of the Code of Professional Responsibility.
Neither can we accept respondents plea that he was dutybound to handle all the cases referred to him by AIB, including
the personal cases of its officers which had no connection to its
corporate affairs. That the representation of conflicting interest is
in good faith and with honest intention on the part of the lawyer

does not make the prohibition inoperative. 16 Moreover, lawyers


are not obliged to act either as an adviser or advocate for every
person who may wish to become their client. They have the right
to decline such employment, subject, however, to Canon 14 of
the Code of Professional Responsibility.17 Although there are
instances where lawyers cannot decline representation, 18 they
cannot be made to labor under conflict of interest between a
present client and a prospective one.19
Additionally, in his position paper, the respondent alleges that
when the complainant invited the respondent to join QRMSI, he
"vehemently refused to join them due to his perception of
conflicting interest as he was then (and still is at present) the
Legal Counsel" of AIB, which is also a security agency.20 To
bolster his allegation, he invoked the affidavits of complainants
witnesses which contained statements of his apprehension of
conflict of interest should he join QRMSI. 21
Surprisingly, despite his apprehension or awareness of a
possible conflict of interest should he join QRMSI, the
respondent later allowed himself to become an incorporator,
stockholder, and president of SESSI, which is also a security
agency. He justified his act by claiming that that while both AIB
and SESSI are engaged in security agency business, he is
serving in different capacities. As the in-house legal counsel of
AIB, he "serves its legal interest the parameter of which evolves
around legal matters" such as protecting the legal rights and
interest of the corporation; conducting an investigation or a
hearing on violations of company rules and regulations of their
office employees and security guards; sending demand letters
in collection cases; and representing the corporation in any
litigation for or against it. And as president of SESSI, he serves
the operational aspects of the business such as "how does it
operate[], how much do they price their services, what kind or
how do they train[] their security guards, how they solicit
clients." Thus, conflict of interest is far-fetched. Moreover, the
respondent argues that the complainant, not being a
stockholder of AIB and SESSI, has no right to question his
alleged conflict of interest in serving the two security agencies. 22

While the complainant lacks personality to question the alleged


conflict of interests on the part of the respondent in serving both
security agencies, we cannot just turn a blind eye to
respondents act. It must be noted that the proscription against
representation of conflicting interests finds application where the
conflicting interests arise with respect to the same general
matter however slight the adverse interest may be. It applies
even if the conflict pertains to the lawyers private activity or in
the performance of a function in a non-professional capacity.23 In
the process of determining whether there is a conflict of interest,
an important criterion is probability, not certainty, of conflict.
Since the respondent has financial or pecuniary interest in
SESSI, which is engaged in a business competing with his
clients, and, more importantly, he occupies the highest position
in SESSI, one cannot help entertaining a doubt on his loyalty to
his client AIB. This kind of situation passes the second test of
conflict of interest, which is whether the acceptance of a new
relationship would prevent the full discharge of the lawyers duty
of undivided fidelity and loyalty to the client or invite suspicion of
unfaithfulness or double-dealing in the performance of that duty.
The close relationship of the majority stockholders of both
companies does not negate the conflict of interest. Neither does
his protestation that his shareholding in SESSI is "a mere
pebble among the sands."
In view of all of the foregoing, we find the respondent guilty of
serious misconduct for representing conflicting interests.
Furthermore, it must be noted that Republic Act No. 5487,
otherwise known as the Private Security Agency Law, prohibits
a person from organizing or having an interest in more than one
security agency. From respondents position paper, it can be
culled that Leodegario Quiambao is the president and managing
director of AIB, holding 60% of the outstanding shares; while his
four other siblings who are permanent residents in the United
States own the remaining 40%.24 This prohibition
notwithstanding, the respondent organized SESSI, with
Leodegarios wife and son as majority stockholders holding

about 70% of the outstanding shares and with him (the


respondent), as well as the rest of the stockholders, holding
minimal shares.25 In doing so, the respondent virtually allowed
Leodegario and the latters wife to violate or circumvent the law
by having an interest in more than one security agency. It must
be noted that in the affidavit26 of Leodegarios wife, she
mentioned of their conjugal property. In the absence of evidence
to the contrary, the property relation of Leodegario and his wife
can be presumed to be that of conjugal partnership of gains;
hence, the majority shares in AIB and SESSI are the conjugal
property of Leodegario and his wife, thereby placing themselves
in possession of an interest in more than one security agency in
contravention of R.A. No. 5487. Thus, in organizing SESSI, the
respondent violated Rule 1.02, Canon 1 of the Code of
Professional Responsibility, which mandates lawyers to promote
respect for the law and refrain from counseling or abetting
activities aimed at defiance of the law.

the investigating commissioner. However, we look with disfavor


the change in the recommended penalty without any
explanation therefor. Again, we remind the IBP Board of
Governors of the importance of the requirement to announce in
plain terms its legal reasoning, since the requirement that its
decision in disciplinary proceedings must state the facts and the
reasons on which its decision is based is akin to what is
required of the decisions of courts of record.27 The reasons for
handing down a penalty occupy no lesser station than any other
portion of the ratio.
In similar cases where the respondent was found guilty of
representing conflicting interests a penalty ranging from one to
three years suspension was imposed.28 In this case, we find
that a suspension from the practice of law for one year is
warranted.

As to the recommendation that the penalty be reduced from a


suspension of one year to a stern warning, we find the same to
be without basis. We are disturbed by the reduction made by
the IBP Board of Governors of the penalty recommended by the
investigating commissioner without clearly and distinctly stating
the facts and reasons on which that reduction is based.

WHEREFORE, respondent Atty. Nestor A. Bamba is hereby


held GUILTY of violation of Rule 15.03 of Canon 15 and Rule
1.02 of Canon 1 of the Code of Professional Responsibility. He
is SUSPENDED from the practice of law for a period of ONE (1)
YEAR effective from receipt of this Resolution, with a warning
that a similar infraction in the future shall be dealt with more
severely.

Section 12(a), Rule 139-B of the Rules of Court reads in part as


follows:

Let copies of this Resolution be furnished to the Office of the


Bar Confidant and the Integrated Bar of the Philippines.

SEC. 12. Review and decision by the Board of Governors.

SO ORDERED.

(a) Every case heard by an investigator shall be reviewed by the


IBP Board of Governors upon the record and evidence
transmitted to it by the Investigator with his report. The decision
of the Board upon such review shall be in writing and shall
clearly and distinctly state the facts and the reasons on which it
is based.

A.C. No. 5128

We may consider the resolution of the IBP Board of Governors


as a memorandum decision adopting by reference the report of

March 31, 2005

ELESIO1 C. PORMENTO, SR., Complainant,


vs.
ATTY. ALIAS A. PONTEVEDRA, respondent.

RESOLUTION
AUSTRIA-MARTINEZ, J.:
In a verified Complaint2 dated August 7, 1999, Elesio C.
Pormento, Sr. charged Atty. Elias A. Pontevedra with
malpractice and misconduct, praying that on the basis of the
facts alleged therein, respondent be disbarred.
Complainant alleges that between 1964 and 1994, respondent
is his family's legal counsel having represented him and
members of his family in all legal proceedings in which they are
involved. Complainant also claims that his family's relationship
with respondent extends beyond mere lawyer-client relations as
they gave respondent moral, spiritual, physical and financial
support in his different endeavors.3
Based on the allegations in the complaint, the rift between
complainant and respondent began when complainant's
counterclaim in Civil Case No. 1648 filed with the Regional Trial
Court of Bacolod City was dismissed. Complainant claims that
respondent, who was his lawyer in the said case, deliberately
failed to inform him of the dismissal of his counterclaim despite
receipt of the order of dismissal by the trial court, as a result of
which, complainant was deprived of his right to appeal said
order. Complainant asserts that he only came to know of the
existence of the trial court's order when the adverse party in the
said case extrajudicially foreclosed the mortgage executed over
the parcel of land which is the subject matter of the suit. In order
to recover his ownership over the said parcel of land,
complainant was constrained to hire a new lawyer as Atty.
Pontevedra refused to institute an action for the recovery of the
subject property.4
Complainant also claims that in order to further protect his rights
and interests over the said parcel of land, he was forced to
initiate a criminal case for qualified theft against the relatives of
the alleged new owner of the said land. Respondent is the
counsel of the accused in said case. Complainant claims that as

part of his defense in said criminal case, respondent utilized


pieces of confidential information he obtained from complainant
while the latter is still his client.5
In a separate incident, complainant claims that in 1967, he
bought a parcel of land located at Escalante, Negros
Occidental. The Deed of Declaration of Heirship and Sale of
said land was prepared and notarized by respondent. Since
there was another person who claims ownership of the property,
complainant alleges that he heeded respondent's advice to build
a small house on the property and to allow his (complainant's)
nephew and his family to occupy the house in order for
complainant to establish his possession of the said property.
Subsequently, complainant's nephew refused to vacate the
property prompting the former to file an ejectment case with the
Municipal Trial Court of Escalante, Negros Occidental, docketed
as Civil Case No. 528. Respondent acted as the counsel of
complainant's nephew.6
Complainant contends that respondent is guilty of malpractice
and misconduct by representing clients with conflicting interests
and should be disbarred by reason thereof. 7
In his Comment,8 respondent contends that he was never a
direct recipient of any monetary support coming from the
complainant. Respondent denies complainant's allegation that
he (respondent) did not inform complainant of the trial court's
order dismissing the latter's counterclaim in Civil Case No.
1648. Respondent claims that within two days upon his receipt
of the trial court's order of dismissal, he delivered to complainant
a copy of the said order, apprising him of its contents. As to his
representation of the persons against whom complainant filed
criminal cases for theft,9 respondent argues that he honestly
believes that there exists no conflict between his present and
former clients' interests as the cases he handled for these
clients are separate and distinct from each other. He further
contends that he took up the cause of the accused in the
criminal cases filed by complainant for humanitarian
considerations since said accused are poor and needy and

because there is a dearth of lawyers in their community. With


respect to the case for ejectment filed by complainant against
his nephew, respondent admits that it was he who notarized the
deed of sale of the parcel of land sold to complainant. However,
he contends that what is being contested in the said case is not
the ownership of the subject land but the ownership of the
house built on the said land.10
On December 21, 1999, complainant filed a Reply to
respondent's Comment.11

RESOLUTION NO. XVI-2004-387


Adm. Case No. 5128
Elesio C. Pormento, Sr., vs. Atty. Elias A. Pontevedra
RESOLVED to ANNUL and SET ASIDED [sic], as it is
hereby ANNULED and SET ASIDE, the Recommendation
of the Investigating Commission, and to APPROVE the
DISMISSAL of the above-entitled case for lack of merit of
the complaint.
We do not agree with the dismissal of the complaint.

On January 19, 2000, the Court referred the instant case to the
Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation.12
On February 18, 2002, respondent filed a Rejoinder to
complainant's Reply adding that the instant complaint was
orchestrated by complainant's son who wanted political
vengeance because he lost the vice-mayoralty post to
respondent during the 1988 local elections. 13
On February 20, 2002, complainant filed a Sur-Rejoinder to
respondent's Rejoinder.14
Thereafter, the parties filed their respective Position Papers, 15
after which the case was deemed submitted for resolution.
In his Report and Recommendation dated February 20, 2004,
Investigating Commissioner Agustinus V. Gonzaga found
respondent guilty of violating Rule 15.03, Canon 15 of the Code
of Professional Responsibility. He recommended that
respondent be meted the penalty of suspension for one month.
In a minute Resolution passed on July 30, 2004, the IBP Board
of Governors resolved to annul and set aside the
recommendation of the Investigating Commissioner and instead
approved the dismissal of the complaint for lack of merit, to wit:

At the outset, we reiterate the settled rule that in complaints for


disbarment, a formal investigation is a mandatory requirement
which may not be dispensed with except for valid and
compelling reasons.16 Formal investigations entail notice and
hearing. However, the requirements of notice and hearing in
administrative cases do not necessarily connote full adversarial
proceedings, as actual adversarial proceedings become
necessary only for clarification or when there is a need to
propound searching questions to witnesses who give vague
testimonies.17 Due process is fulfilled when the parties were
given reasonable opportunity to be heard and to submit
evidence in support of their arguments.18
From the records extant in the present case, it appears that the
Investigating Commissioner conducted a hearing on January
16, 2002 where it was agreed that the complainant and the
respondent shall file their respective position papers, after which
the case shall be deemed submitted for resolution. 19 No further
hearings were conducted.
It is also disturbing to note that the abovementioned Resolution
of the IBP Board of Governors, annulling and setting aside the
recommendation of the Investigating Commissioner, is bereft of
any findings of facts or explanation as to how and why it
resolved to set aside the recommendation of the Investigating
Commissioner and instead dismissed the complaint against
respondent.

Section 12(a), Rule 139-B of the Rules of Court provides:


SEC. 12. Review and decision by the Board of
Governors.
(a) Every case heard by an investigator shall be
reviewed by the IBP Board of Governors upon the
record and evidence transmitted to it by the
Investigator with his report. The decision of the
Board upon such review shall be in writing and
shall clearly and distinctly state the facts and
the reasons on which it is based. It shall be
promulgated within a period not exceeding thirty
(30) days from the next meeting of the Board
following the submittal of the Investigator's report.
(Emphasis supplied)
In Cruz vs. Cabrera,20 we reiterated the importance of the
requirement that the decision of the IBP Board of Governors
must state the facts and the reasons on which such decision is
based, which is akin to what is required of the decisions of
courts of record. We held therein that:
[A]side from informing the parties the reason for the
decision to enable them to point out to the appellate court
the findings with which they are not in agreement, in case
any of them decides to appeal the decision, it is also an
assurance that the judge, or the Board of Governors in
this case, reached his judgment through the process of
legal reasoning.
Noncompliance with this requirement would normally result in
the remand of the case.21
Moreover, while we may consider the act of the IBP Board of
Governors in simply adopting the report of the Investigating
Commissioner as substantial compliance with said Rule, in this
case, we cannot countenance the act of the IBP Board of
Governors in merely stating that it is annulling the

Commissioner's recommendation and then dismiss the


complaint without stating the facts and the reasons for said
dismissal.
However, considering that the present controversy has been
pending resolution for quite some time, that no further factual
determination is required, and the issues being raised may be
determined on the basis of the numerous pleadings filed
together with the annexes attached thereto, we resolve to
proceed and decide the case on the basis of the extensive
pleadings on record, in the interest of justice and speedy
disposition of the case.22
Coming to the main issue in the present case, respondent is
being accused of malpractice and misconduct on three grounds:
first, for representing interests which conflict with those of his
former client, herein complainant; second, for taking advantage
of the information and knowledge that he obtained from
complainant; and, third, for not notifying complainant of the
dismissal of his counterclaim in Civil Case No. 1648.
We shall concurrently discuss the first and second grounds as
they are interrelated.
Rule 15.03, Canon 15 of the Code of Professional
Responsibility provides:
"A lawyer shall not represent conflicting interests except
by written consent of all concerned given after a full
disclosure of the facts."
Corollary to this, Canon 21 of the same Code enjoins a lawyer
to preserve the confidences and secrets of his clients even after
the attorney-client relation is terminated. Rule 21.02, Canon 21
specifically requires that:
A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor
shall he use the same to his own advantage or that of a

third person, unless the client with full knowledge of the


circumstances consents thereto.
In addition, Canon 6 of the Canons of Professional Ethics
states:
It is the duty of a lawyer at the time of retainer to disclose
to the client all the circumstances of his relations to the
parties and any interest in or connection with the
controversy, which might influence the client in the
selection of counsel.
It is unprofessional to represent conflicting interests,
except by express consent of all concerned given after a
full disclosure of the facts. Within the meaning of this
canon, a lawyer represents conflicting interests when, in
behalf of one client, it is his duty to contend for that which
duty to another client requires him to oppose.
The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidences
forbids also the subsequent acceptance of retainers or
employment from others in matters adversely affecting
any interest of the client with respect to which confidence
has been reposed.
Jurisprudence instructs that there is a representation of
conflicting interests if the acceptance of the new retainer will
require the attorney to do anything which will injuriously affect
his first client in any matter in which he represents him and also
whether he will be called upon in his new relation, to use against
his first client any knowledge acquired through their
connection.23 Another test to determine if there is a
representation of conflicting interests is whether the acceptance
of a new relation will prevent an attorney from the full discharge
of his duty of undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double dealing in the performance
thereof.24

A lawyer is forbidden from representing a subsequent client


against a former client when the subject matter of the present
controversy is related, directly or indirectly, to the subject matter
of the previous litigation in which he appeared for the former
client.25 Conversely, he may properly act as counsel for a new
client, with full disclosure to the latter, against a former client in
a matter wholly unrelated to that of the previous employment,
there being in that instance no conflict of interests. 26 Where,
however, the subject matter of the present suit between the
lawyer's new client and his former client is in some way
connected with that of the former client's action, the lawyer may
have to contend for his new client that which he previously
opposed as counsel for the former client or to use against the
latter information confided to him as his counsel. 27 As we have
held in Maturan vs. Gonzales:28
The reason for the prohibition is found in the relation of
attorney and client, which is one of trust and confidence
of the highest degree. A lawyer becomes familiar with all
the facts connected with his client's case. He learns from
his client the weak points of the action as well as the
strong ones. Such knowledge must be considered sacred
and guarded with care. No opportunity must be given him
to take advantage of the client's secrets. A lawyer must
have the fullest confidence of his client. For if the
confidence is abused, the profession will suffer by the
loss thereof.29
The proscription against representation of conflicting interests
finds application where the conflicting interests arise with
respect to the same general matter and is applicable however
slight such adverse interest may be.30 In essence, what a lawyer
owes his former client is to maintain inviolate the client's
confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously
represented him.31
In the present case, we find no conflict of interests when
respondent represented herein complainant's nephew and other

members of his family in the ejectment case, docketed as Civil


Case No. 528, and in the criminal complaint, denominated as
I.S. Case No. 99-188, filed by herein complainant against them.
The only established participation respondent had with respect
to the parcel of land purchased by complainant, is that he was
the one who notarized the deed of sale of the said land. On that
basis alone, it does not necessarily follow that respondent
obtained any information from herein complainant that can be
used to the detriment of the latter in the ejectment case he filed.
While complainant alleges that it was respondent who advised
him to allow his nephew to temporarily occupy the property in
order to establish complainant's possession of said property as
against another claimant, no corroborating evidence was
presented to prove this allegation. Defendant, in his answer to
the complaint for ejectment, raised the issue as to the right of
the vendor to sell the said land in favor of complainant. 32
However, we find this immaterial because what is actually in
issue in the ejectment case is not the ownership of the subject
lot but the ownership of the house built on the said lot.
Furthermore, the subject matter of I.S. Case No. 99-188 filed by
complainant against his nephew and other members of his
family involves several parts of trucks owned by herein
complainant.33 This case is not in any way connected with the
controversy involving said parcel of land. In fine, with respect to
Civil Case No. 528 and I.S. Case No. 99-188, complainant failed
to present substantial evidence to hold respondent liable for
violating the prohibition against representation of conflicting
interests.
However, we find conflict of interests in respondent's
representation of herein complainant in Civil Case No. 1648 and
his subsequent employment as counsel of the accused in
Criminal Case No. 3159.
The subject matter in Civil Case No. 1648 is Lot 609 located at
Escalante, Negros Occidental, the same parcel of land involved
in Criminal Case No. 3159 filed by herein complainant against
several persons, accusing them of theft for allegedly cutting and

stealing coconut trees within the premises of the said lot.


Complainant contends that it is in this criminal case that
respondent used confidential information which the latter
obtained from the former in Civil Case No. 1648.
To prove his contention, complainant submitted in evidence
portions of the transcript of stenographic notes taken during his
cross-examination in Criminal Case No. 3159. However, after a
reading of the said transcript, we find no direct evidence to
prove that respondent took advantage of any information that he
may have been acquired from complainant and used the same
in the defense of his clients in Criminal Case No. 3159. The
matter discussed by respondent when he cross-examined
complainant is the ownership of Lot 609 in its entirety, only a
portion of which was purportedly sold to complainant. Part of the
defense raised by his clients is that herein complainant does not
have the personality to file the criminal complaint as he is not
the owner of the lot where the supposed theft occurred. It is
possible that the information as to the ownership of the disputed
lot used by respondent in bringing up this issue may have been
obtained while he still acted as counsel for complainant. It is
also probable that such information may have been taken from
other sources, like the Registry of Deeds, the Land Registration
Authority or the respondent's clients themselves.
Nonetheless, be that as it may, it cannot be denied that when
respondent was the counsel of complainant in Civil Case No.
1648, he became privy to the documents and information that
complainant possessed with respect to the said parcel of land.
Hence, whatever may be said as to whether or not respondent
utilized against complainant any information given to him in a
professional capacity, the mere fact of their previous relationship
should have precluded him from appearing as counsel for the
opposing side. As we have previously held:
The relations of attorney and client is [are] founded on
principles of public policy, on good taste. The question is
not necessarily one of the rights of the parties, but as to
whether the attorney has adhered to proper professional

standard. With these thoughts in mind, it behooves


attorneys, like Caesar's wife, not only to keep inviolate
the client's confidence, but also to avoid the appearance
of treachery and double-dealing. Only thus can litigants
be encouraged to entrust their secrets to their attorneys
which is of paramount importance in the administration of
justice.34
Moreover, we have held in Hilado vs. David35 that:
Communications between attorney and client are, in a
great number of litigations, a complicated affair,
consisting of entangled relevant and irrelevant, secret
and well known facts. In the complexity of what is said in
the course of dealings between an attorney and client,
inquiry of the nature suggested would lead to the
revelation, in advance of the trial, of other matters that
might only further prejudice the complainant's cause. 36
Thus, respondent should have declined employment in Criminal
Case No. 3159 so as to avoid suspicion that he used in the
criminal action any information he may have acquired in Civil
Case No. 1648.
Moreover, nothing on record would show that respondent fully
apprised complainant and his new clients and secured or at
least tried to secure their consent when he took the defense of
the accused in Criminal Case No. 3159.
Respondent contends that he handled the defense of the
accused in the subject criminal case for humanitarian reasons
and with the honest belief that there exists no conflict of
interests. However, the rule is settled that the prohibition against
representation of conflicting interests applies although the
attorney's intentions and motives were honest and he acted in
good faith.37 Moreover, the fact that the conflict of interests is
remote or merely probable does not make the prohibition
inoperative.38

Respondent also asserts that when he accepted employment in


Criminal Case No. 3159, the attorney-client relations between
him and complainant in Civil Case No. 1648 had already been
terminated. This defense does not hold water because the
termination of the relation of attorney and client provides no
justification for a lawyer to represent an interest adverse to or in
conflict with that of the former client.39
Thus, we find respondent guilty of misconduct for representing
conflicting interests.
As to the third ground, we find that complainant failed to present
substantial evidence to prove that respondent did not inform him
of the dismissal of his counterclaim in Civil Case No. 1648. On
the contrary, we find sufficient evidence to prove that
complainant has been properly notified of the trial court's order
of dismissal. The only proof presented by complainant to
support his claim is the affidavit of his daughter confirming
complainant's contention that respondent indeed failed to inform
him of the dismissal of his counterclaim.40 However, in the same
affidavit, complainant's daughter admits that it was on
December 4, 1989 that respondent received the order of the trial
court dismissing complainant's counterclaim. Respondent,
presented a "certification" dated December 11, 1989, or one
week after his receipt of the trial court's order, where
complainant's daughter acknowledged receipt of the entire
records of Civil Case No. 1648 from complainant. 41 The same
"certification" relieved respondent of his obligation as counsel of
complainant. From the foregoing, it can be inferred that
respondent duly notified complainant of the dismissal of his
counterclaim. Otherwise, complainant could not have ordered
his daughter to withdraw the records of his case from
respondent at the same time relieving the latter of responsibility
arising from his obligation as complainant's counsel in that
particular case.
As to the penalty to be imposed, considering respondent's
honest belief that there is no conflict of interests in handling Civil
Case No. 1648 and Criminal Case No. 3159, and it appearing

that this is respondent's first infraction of this nature, we find the


penalty of suspension to be disproportionate to the offense
committed.42 Moreover, we take into account respondent's
undisputed claim that there are only three lawyers who are
actually engaged in private practice in Escalante, Negros
Occidental, where both complainant and respondent reside.
One of the lawyers is already handling complainant's case,
while the other lawyer is believed by respondent's clients to be a
relative of complainant. Hence, respondent's clients believed
that they had no choice but go to him for help. We do not find
this situation as an excuse for respondent to accept
employment because he could have referred his clients to the
resident lawyer of the Public Attorney's Office or to other
lawyers in the neighboring towns. Nonetheless, in view of
respondent's belief that he simply adhered to his sworn duty to
defend the poor and the needy, we consider such situation as a
circumstance that mitigates his liability. Considering the
foregoing facts and circumstances, we find it proper to impose a
fine on respondent. In Sibulo vs. Cabrera,43 the respondent is
fined for having been found guilty of unethical conduct in
representing two conflicting interests.

Section 12(a), Rule 139-B of the Rules of Court as discussed in


the text of herein decision.

Respondent is further reminded to be more cautious in


accepting professional employments, to refrain from all
appearances and acts of impropriety including circumstances
indicating conflict of interests, and to behave at all times with
circumspection and dedication befitting a member of the Bar,
especially observing candor, fairness and loyalty in all
transactions with his clients.44
WHEREFORE, respondent Atty. Elias A. Pontevedra is found
GUILTY of representing conflicting interests and is hereby
FINED in the amount of Ten Thousand (P10,000.00) Pesos. He
is WARNED that a repetition of the same or similar acts will be
dealt with more severely.

In a case, entitled "Brenda Sucaldito1 versus Reynaldo Marcelo,


et al.", docketed as Civil Case No. 90-55209 before Branch 53
of the Regional Trial Court of Manila, defendant Reynaldo
Marcelo retained the services of the herein respondent as his
lawyer. Subsequently, however, the respondent also entered his
appearance as counsel for plaintiff Brenda Sucaldito in the
same case, without withdrawing his appearance as counsel for
defendant Reynaldo Marcelo. In view of such development Atty.
Reyes Geromo, former counsel of Brenda Sucaldito, filed with
the Manila Regional Trial Court a motion to disqualify the
respondent on the ground of unethical conduct. 2 Finding merit in
the said motion, the trial court ordered the disqualification of
respondent in the case.3

The Board of Governors of the Integrated Bar of the Philippines


is DIRECTED to be heedful of the requirements provided for in

Complainant Romeo Sibulo, an intervenor in the


aforementioned Civil Case No. 90-55209, brought the present

SO ORDERED.

Adm.Case No. 4218

July 20, 2000

ROMEO H. SIBULO, complainant,


vs.
ATTY. STANLEY R. CABRERA, respondent.
RESOLUTION
PURISIMA, J.:
At bar is an administrative complaint against the respondent,
Atty. Stanley Cabrera, for unethical practice/conduct.
The facts that matter are as follows:

administrative complaint against respondent, praying for the


latter's removal from or suspension in the practice of law, on the
ground of unethical practice/conduct.
In his Answer4 to the Complaint, respondent denied the
wrongdoing alluded to him; theorizing that "xxx I merely
accepted a case from a plaintiff and at the same time I was the
counsel as intervenor of one of the defendants xxx."
This case was referred to the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation. 5
Acting thereupon on April 7, 2000, the IBP came out with its
Resolution No. XIV-000-163, which reads:
"RESOLUTION NO. XIV-000-163
Adm. Case No. 4218
Romeo E. Sibulo vs. Atty. Stanly Cabrera
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this
Resolution/Decision as annex 'A'; and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, said
recommendation is with modification that Respondent be
CENSURED and FINED One Thousand Pesos
(P1,000.00)." 6

and at the same time I was the counsel as intervenor of


one of the defendants.'
Nothing further need be said. For all his disclaimers and
the affidavits of two (2) witnesses in his favor, it is beyond
cavil that Atty. Cabrera has violated Canon 15 and the
subsequent Rules of Code of Professional Responsibility.
The complainant's motives are not of paramount interest.
To our mind, Atty. Cabrera has lain himself open to the
specifications against him. Remarkably, he admits the
same by his lame explanation.
From all the foregoing, we recommend that Atty. Stanley
R. Cabrera be CENSURED by the Honorable Supreme
Court and ordered to fine a pay (sic) in such amount as
the Honorable Court may see fit."
Respondent has all but admitted the wrongdoing complained of,
when he stated in his Answer that he "merely accepted a case
from a plaintiff and at the same time I [he] was the counsel as
intervenor of one of the defendants." Such a revelation is a
categorical admission that he (respondent) represented two
conflicting interests, which representations or appearances are
prohibited by Rule 15.03 of Canon 15 of the Code of
Professional Responsibility, which provides:
"CANON 15 - A LAWYER SHALL OBSERVE CANDOR,
FAIRNESS, AND LOYALTY IN ALL HIS DEALINGS AND
TRANSACTIONS WITH HIS CLIENT.
xxx

xxx

xxx

The IBP Report, in part, found:


"The respondent's answer is quite revealing. While he
denies any unethical conduct on his part, respondent
seeks to justify what he did and of which he is charged by
tongue-in-cheek declaring that he did no wrong
'considering that I merely accepted a case from a plaintiff

Rule 15.03 - A lawyer shall not represent conflicting


interests except by written consent of all concerned given
after a full disclosure of the facts."
Respondent was bound to faithfully represent his client in all
aspects of subject civil case. When he agreed to represent the
defendant and later on, also the plaintiff in the same case, he

could no longer serve either of his said clients faithfully, as his


duty to the plaintiff did necessarily conflict with his duty to the
defendant. The relation of attorney and client is based on trust,
so that double dealing which could sometimes lead to treachery,
should be avoided. 8

On January 2, 2002, complainant was the Operations Director


for Multitel Communications Corporation (MCC). MCC is an
affiliate company of Multitel International Holdings Corporation
(Multitel). Sometime in July 2002, MCC changed its name to
Precedent Communications Corporation (Precedent). 3

Considering the attendant facts and circumstances, the Court is


of the sense that the amount of fine recommended below is not
commensurate with the wrong done by the respondent.

According to complainant, in mid-2002, Multitel was besieged by


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

WHEREFORE, respondent is found GUILTYof unethical


conduct for representing two conflicting interests and is hereby
FINED in the amount of TEN THOUSAND (P10,000.00) Pesos,
with a warning that a repetition of the same or similar acts will
be dealt with more severely.
SO ORDERED.

A.C. No. 8243

July 24, 2009

ROLANDO B. PACANA, JR., Complainant,


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

Distraught, complainant sought the advice of respondent who


also happened to be a member of the Couples for Christ, a
religious organization where complainant and his wife were also
active members. From then on, complainant and respondent
constantly communicated, with the former disclosing all his
involvement and interests in Precedent and Precedents relation
with Multitel. Respondent gave legal advice to complainant and
even helped him prepare standard quitclaims for creditors. In
sum, complainant avers that a lawyer-client relationship was
established between him and respondent although no formal
document was executed by them at that time. A Retainer
Agreement4 dated January 15, 2003 was proposed by
respondent. Complainant, however, did not sign the said
agreement because respondent verbally asked for One
Hundred Thousand Pesos (P100,000.00) as acceptance fee
and a 15% contingency fee upon collection of the overpayment
made by Multitel to Benefon,5 a telecommunications company
based in Finland. Complainant found the proposed fees to be
prohibitive and not within his means.6 Hence, the retainer
agreement remained unsigned.7
After a few weeks, complainant was surprised to receive a
demand letter from respondent8 asking for the return and
immediate settlement of the funds invested by respondents
clients in Multitel. When complainant confronted respondent

about the demand letter, the latter explained that she had to
send it so that her clients defrauded investors of Multitel
would know that she was doing something for them and assured
complainant that there was nothing to worry about. 9
Both parties continued to communicate and exchange
information regarding the persistent demands made by Multitel
investors against complainant. On these occasions, respondent
impressed upon complainant that she can closely work with
officials of the Anti-Money Laundering Council (AMLC), the
Department of Justice (DOJ), the National Bureau of
Investigation (NBI), the Bureau of Immigration and Deportations
(BID),10 and the Securities and Exchange Commission (SEC) 11
to resolve complainants problems. Respondent also convinced
complainant that in order to be absolved from any liability with
respect to the investment scam, he must be able to show to the
DOJ that he was willing to divest any and all of his interests in
Precedent including the funds assigned to him by Multitel. 12
Respondent also asked money from complainant allegedly for
safekeeping to be used only for his case whenever necessary.
Complainant agreed and gave her an initial amount of
P900,000.00 which was received by respondent herself. 13
Sometime thereafter, complainant again gave respondent
P1,000,000.00.14 Said amounts were all part of Precedents
collections and sales proceeds which complainant held as
assignee of the companys properties. 15
When complainant went to the United States (US), he received
several messages from respondent sent through electronic mail
(e-mail) and short messaging system (SMS, or text messages)
warning him not to return to the Philippines because Rosario
Baladjay, president of Multitel, was arrested and that
complainant may later on be implicated in Multitels failed
investment system. Respondent even said that ten (10) arrest
warrants and a hold departure order had been issued against
him. Complainant, thereafter, received several e-mail messages
from respondent updating him of the status of the case against
Multitel and promised that she will settle the matter discreetly

with government officials she can closely work with in order to


clear complainants name.16 In two separate e-mail messages,17
respondent again asked money from complainant, P200,000 of
which was handed by complainants wife while respondent was
confined in Saint Lukes Hospital after giving birth, 18 and another
P700,000 allegedly to be given to the NBI. 19
Through respondents persistent promises to settle all
complainants legal problems, respondent was able to convince
complainant who was still in the US to execute a deed of
assignment in favor of respondent allowing the latter to retrieve
178 boxes containing cellular phones and accessories stored in
complainants house and inside a warehouse. 20 He also signed
a blank deed of sale authorizing respondent to sell his 2002
Isuzu Trooper.21
Sometime in April 2003, wary that respondent may not be able
to handle his legal problems, complainant was advised by his
family to hire another lawyer. When respondent knew about this,
she wrote to complainant via e-mail, as follows:
Dear Butchie,
Hi! Ok ka lang? Hope you are fine. Sorry if I shocked you but I
had to do it as your friend and lawyer. The charges are all nonbailable but all the same as the SEC report I told you before.
The findings are the same, i.e. your company was the front for
the fraud of Multitel and that funds were provided you.
I anticipated this, that is why I really pushed for a quitclaim.
Rolly is willing to return the Crosswind, laptap (sic) and [P]alm
[P]ilot. Manny Cancio really helped. Anthony na lang. Then, I will
need the accounting of all the funds you received from the sale
of the phones, every employees and directors[] quitclaim
(including yours), the funds transmitted to the clients through
me, the funds you utilized, and whatelse (sic) is still unremitted,
every centavo must be accounted for as DOJ and NBI can have
the account opened.

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

side. Always pray though to the best legal mind up there. You
will be ok!
Candy22

I have been informed by Efie that your family is looking at hiring


Coco Pimentel. I know him very well as his sister Gwen is my
best friend. I have no problem if you hire him but I will be hands
off. I work differently kasi. In this cases (sic), you cannot be
highprofile (sic) because it is the clients who will be sacrificed at
the expense of the fame of the lawyer. I have to work quietly
and discreetly. No funfare. Just like what I did for your guys in
the SEC. I have to work with people I am comfortable with.
Efren Santos will sign as your lawyer although I will do all the
work. He can help with all his connections. Vals friend in the
NBI is the one is (sic) charge of organized crime who is the
entity (sic) who has your warrant. My law partner was the state
prosecutor for financial fraud. Basically we have it covered in all
aspects and all departments. I am just trying to liquidate the
phones I have allotted for you s ana (sic) for your trooper kasi
whether we like it or not, we have to give this agencies (sic) to
make our work easier according to Val. The funds with Mickey
are already accounted in the quit claims (sic) as attorneys (sic)
fees. I hope he will be able to send it so we have funds to work
with.
As for your kids, legally they can stay here but recently, it is the
children who (sic) the irate clients and government officials
harass and kidnap to make the individuals they want to come
out from hiding (sic). I do not want that to happen. Things will be
really easier on my side.
Please do not worry. Give me 3 months to make it all disappear.
But if you hire Coco, I will give him the free hand to work with
your case. Please trust me. I have never let you down, have I? I
told you this will happen but we are ready and prepared. The
clients who received the phones will stand by you and make you
the hero in this scandal. I will stand by you always. This is my
expertise. TRUST me! That is all. You have an angel on your

On July 4, 2003, contrary to respondents advice, complainant


returned to the country. On the eve of his departure from the
United States, respondent called up complainant and
conveniently informed him that he has been cleared by the NBI
and the BID.23
About a month thereafter, respondent personally met with
complainant and his wife and told them that she has already
accumulated P12,500,000.00 as attorneys fees and was willing
to give P2,000,000.00 to complainant in appreciation for his
help. Respondent allegedly told complainant that without his
help, she would not have earned such amount. Overwhelmed
and relieved, complainant accepted respondents offer but
respondent, later on, changed her mind and told complainant
that she would instead invest the P2,000,000.00 on his behalf in
a business venture. Complainant declined and explained to
respondent that he and his family needed the money instead to
cover their daily expenses as he was no longer employed.
Respondent allegedly agreed, but she failed to fulfill her
promise.24
Respondent even publicly announced in their religious
organization that she was able to help settle the ten (10)
warrants of arrest and hold departure order issued against
complainant and narrated how she was able to defend
complainant in the said cases.25
By April 2004, however, complainant noticed that respondent
was evading him. Respondent would either refuse to return
complainants call or would abruptly terminate their telephone
conversation, citing several reasons. This went on for several
months.26 In one instance, when complainant asked respondent
for an update on the collection of Benefons obligation to
Precedent which respondent had previously taken charge of,

respondent arrogantly answered that she was very busy and


that she would read Benefons letter only when she found time
to do so.
On November 9, 2004, fed up and dismayed with respondents
arrogance and evasiveness, complainant wrote respondent a
letter formally asking for a full accounting of all the money,
documents and properties given to the latter.27 Respondent
rendered an accounting through a letter dated December 20,
2004.28 When complainant found respondents explanation to be
inadequate, he wrote a latter expressing his confusion about the
accounting.29 Complainant repeated his request for an audited
financial report of all the properties turned over to her;
otherwise, he will be constrained to file the appropriate case
against respondent.30 Respondent replied,31 explaining that all
the properties and cash turned over to her by complainant had
been returned to her clients who had money claims against
Multitel. In exchange for this, she said that she was able to
secure quitclaim documents clearing complainant from any
liability.32 Still unsatisfied, complainant decided to file an
affidavit-complaint33 against respondent before the Commission
on Bar Discipline of the Integrated Bar of the Philippines (IBP)
seeking the disbarment of respondent.
In her Answer-Affidavit,34 respondent vehemently denied being
the lawyer for Precedent. She maintained that no formal
engagement was executed between her and complainant. She
claimed that she merely helped complainant by providing him
with legal advice and assistance because she personally knew
him, since they both belonged to the same religious
organization.35lavvph!1
Respondent insisted that she represented the group of investors
of Multitel and that she merely mediated in the settlement of the
claims her clients had against the complainant. She also
averred that the results of the settlement between both parties
were fully documented and accounted for.36 Respondent
believes that her act in helping complainant resolve his legal
problem did not violate any ethical standard and was, in fact, in

accord with Rule 2.02 of the Code of Professional


Responsibility.37
To bolster her claim that the complaint was without basis,
respondent noted that a complaint for estafa was also filed
against her by complainant before the Office of the City
Prosecutor in Quezon City citing the same grounds. The
complaint was, however, dismissed by Assistant City Prosecutor
Josephus Joannes H. Asis for insufficiency of evidence. 38
Respondent argued that on this basis alone, the administrative
case must also be dismissed.
In her Position Paper,39 respondent also questioned the
admissibility of the electronic evidence submitted by
complainant to the IBPs Commission on Bar Discipline.
Respondent maintained that the e-mail and the text messages
allegedly sent by respondent to complainant were of doubtful
authenticity and should be excluded as evidence for failure to
conform to the Rules on Electronic Evidence (A.M. No. 01-7-01SC).
After due hearing, IBP Investigating Commissioner Patrick M.
Velez issued a Report and Recommendation40 finding that a
lawyer-client relationship was established between respondent
and complainant despite the absence of a written contract. The
Investigating Commissioner also declared that respondent
violated her duty to be candid, fair and loyal to her client when
she allowed herself to represent conflicting interests and failed
to render a full accounting of all the cash and properties
entrusted to her. Based on these grounds, the Investigating
Commissioner recommended her disbarment.
Respondent moved for reconsideration,41 but the IBP Board of
Governors issued a Recommendation42 denying the motion and
adopting the findings of the Investigating Commissioner.
The case now comes before this Court for final action.
We affirm the findings of the IBP.

Rule 15.03, Canon 15 of the Code of Professional responsibility


provides:
Rule 15.03 A lawyer shall not represent conflicting interests
except by written consent of all concerned given after full
disclosure of the facts.
This prohibition is founded on principles of public policy, good
taste43 and, more importantly, upon necessity. In the course of a
lawyer-client relationship, the lawyer learns all the facts
connected with the clients case, including its weak and strong
points. Such knowledge must be considered sacred and
guarded with care. No opportunity must be given to him to take
advantage of his client; for if the confidence is abused, the
profession will suffer by the loss thereof. 44 It behooves lawyers
not only to keep inviolate the clients confidence, but also to
avoid the appearance of treachery and double dealing for only
then can litigants be encouraged to entrust their secrets to their
lawyers, which is paramount in the administration of justice. 45 It
is for these reasons that we have described the attorney-client
relationship as one of trust and confidence of the highest
degree.46
Respondent must have known that her act of constantly and
actively communicating with complainant, who, at that time, was
beleaguered with demands from investors of Multitel, eventually
led to the establishment of a lawyer-client relationship.
Respondent cannot shield herself from the inevitable
consequences of her actions by simply saying that the
assistance she rendered to complainant was only in the form of
"friendly accommodations,"47 precisely because at the time she
was giving assistance to complainant, she was already privy to
the cause of the opposing parties who had been referred to her
by the SEC.48
Respondent also tries to disprove the existence of such
relationship by arguing that no written contract for the
engagement of her services was ever forged between her and
complainant.49 This argument all the more reveals respondents

patent ignorance of fundamental laws on contracts and of basic


ethical standards expected from an advocate of justice. The IBP
was correct when it said:
The absence of a written contract will not preclude the finding
that there was a professional relationship between the parties.
Documentary formalism is not an essential element in the
employment of an attorney; the contract may be express or
implied. To establish the relation, it is sufficient that the advice
and assistance of an attorney is sought and received in any
matter pertinent to his profession.50 (Emphasis
supplied.)1awphi1
Given the situation, the most decent and ethical thing which
respondent should have done was either to advise complainant
to engage the services of another lawyer since she was already
representing the opposing parties, or to desist from acting as
representative of Multitel investors and stand as counsel for
complainant. She cannot be permitted to do both because that
would amount to double-dealing and violate our ethical rules on
conflict of interest.
In Hornilla v. Atty. Salunat,51 we explained the concept of conflict
of interest, thus:
There is conflict of interest when a lawyer represents
inconsistent interests of two or more opposing parties. The test
is "whether or not in behalf of one client, it is the lawyers duty to
fight for an issue or claim, but it is his duty to oppose it for the
other client. In brief, if he argues for one client, this argument
will be opposed by him when he argues for the other client."
This rule covers not only cases in which confidential
communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is
conflict of interests if the acceptance of the new retainer will
require the attorney to perform an act which will injuriously affect
his first client in any matter in which he represents him and also
whether he will be called upon in his new relation to use against
his first client any knowledge acquired through their connection.

Another test of the inconsistency of interests is whether the


acceptance of a new relation will prevent an attorney from the
full discharge of his duty of undivided fidelity and loyalty to his
client or invite suspicion of unfaithfulness or double dealing in
the performance thereof.52
Indubitably, respondent took advantage of complainants
hapless situation, initially, by giving him legal advice and, later
on, by soliciting money and properties from him. Thereafter,
respondent impressed upon complainant that she had acted
with utmost sincerity in helping him divest all the properties
entrusted to him in order to absolve him from any liability. But
simultaneously, she was also doing the same thing to impress
upon her clients, the party claimants against Multitel, that she
was doing everything to reclaim the money they invested with
Multitel. Respondent herself admitted to complainant that
without the latters help, she would not have been able to earn
as much and that, as a token of her appreciation, she was
willing to share some of her earnings with complainant. 53
Clearly, respondents act is shocking, as it not only violated Rule
9.02, Canon 9 of the Code of Professional Responsibility,54 but
also toyed with decency and good taste.
Respondent even had the temerity to boast that no Multitel
client had ever complained of respondents unethical behavior.55
This remark indubitably displays respondents gross ignorance
of disciplinary procedure in the Bar. As a member of the Bar,
she is expected to know that proceedings for disciplinary actions
against any lawyer may be initiated and prosecuted by the IBP
Board of Governors, motu proprio or upon referral by this Court
or by the Board of Officers of an IBP Chapter56 even if no private
individual files any administrative complaint.
Upon review, we find no cogent reason to disturb the findings
and recommendations of the IBP Investigating Commissioner,
as adopted by the IBP Board of Governors, on the admissibility
of the electronic evidence submitted by complainant. We,
accordingly, adopt the same in toto.

Finally, respondent argues that the recommendation of the IBP


Board of Governors to disbar her on the grounds of deceit,
malpractice and other gross misconduct, aside from violation of
the Lawyers Oath, has been rendered moot and academic by
voluntary termination of her IBP membership, allegedly after she
had been placed under the Department of Justices Witness
Protection Program.57 Convenient as it may be for respondent to
sever her membership in the integrated bar, this Court cannot
allow her to do so without resolving first this administrative case
against her.
The resolution of the administrative case filed against
respondent is necessary in order to determine the degree of her
culpability and liability to complainant. The case may not be
dismissed or rendered moot and academic by respondents act
of voluntarily terminating her membership in the Bar regardless
of the reason for doing so. This is because membership in the
Bar is a privilege burdened with conditions. 58 The conduct of a
lawyer may make him or her civilly, if not criminally, liable to his
client or to third parties, and such liability may be conveniently
avoided if this Court were to allow voluntary termination of
membership. Hence, to terminate ones membership in the Bar
voluntarily, it is imperative that the lawyer first prove that the
voluntary withdrawal of membership is not a ploy to further
prejudice the public or to evade liability. No such proof exists in
the present case.
WHEREFORE, respondent Attorney Maricel Pascual-Lopez is
hereby DISBARRED for representing conflicting interests and
for engaging in unlawful, dishonest and deceitful conduct in
violation of her Lawyers Oath and the Code of Professional
Responsibility.
Let a copy of this Decision be entered in the respondents
record as a member of the Bar, and notice of the same be
served on the Integrated Bar of the Philippines, and on the
Office of the Court Administrator for circulation to all courts in
the country.

SO ORDERED.