option to comply or not with the certification.
To nullify the
THIRD DIVISION
[A.C. NO. 6252 : October 5, 2004]
JONAR SANTIAGO, Complainant, v. Atty. EDISON V.
RAFANAN, Respondent.
DECISION
PANGANIBAN, J.:
Notaries public are expected to exert utmost care in the
performance of their duties, which are impressed with public
interest. They are enjoined to comply faithfully with the
solemnities and requirements of the Notarial Law. This Court will
not hesitate to mete out appropriate sanctions to those who
violate it or neglect observance thereof.
The Case and the Facts
Before us is a verified Complaint1 filed by Jonar Santiago, an
employee of the Bureau of Jail Management and Penology
(BJMP), for the disbarment of Atty. Edison V. Rafanan. The
Complaint was filed with the Commission on Bar Discipline
(CBD) of the Integrated Bar of the Philippines (IBP) on January
16, 2001. It charged Atty. Rafanan with deceit; malpractice or
other gross misconduct in office under Section 27 of Rule 1382
of the Rules of Court; and violation of Canons 1.01, 1.02 and
1.033, Canon 54, and Canons 12.075 and 12.08 of the Code of
Professional Responsibility (CPR).
In his Report, IBP Investigating Commissioner Leland R.
Villadolid Jr. summarized the allegations of the complainant in
this wise:
"x x x. In his Letter-Complaint, Complainant alleged, among
others, that Respondent in notarizing several documents on
different dates failed and/or refused to: a)make the proper
notation regarding the cedula or community tax certificate of the
affiants; b) enter the details of the notarized documents in the
notarial register; and c) make and execute the certification and
enter his PTR and IBP numbers in the documents he had
notarized, all in violation of the notarial provisions of the Revised
Administrative Code.
"Complainant likewise alleged that Respondent executed an
Affidavit in favor of his client and offered the same as evidence
in the case wherein he was actively representing his client.
Finally, Complainant alleges that on a certain date, Respondent
accompanied by several persons waited for Complainant after
the hearing and after confronting the latter disarmed him of his
sidearm and thereafter uttered insulting words and veiled
threats."6
On March 23, 2001, pursuant to the January 19, 2001 Order of
the CBD,7 Atty. Rafanan filed his verified Answer.8 He admitted
having administered the oath to the affiants whose Affidavits
were attached to the verified Complaint. He believed, however,
that the non-notation of their Residence Certificates in the
Affidavits and the Counter-affidavits was allowed.
He opined that the notation of residence certificates applied only
to documents acknowledged by a notary public and was not
mandatory for affidavits related to cases pending before courts
and other government offices. He pointed out that in the latter,
the affidavits, which were sworn to before government
prosecutors, did not have to indicate the residence certificates
of the affiants. Neither did other notaries public in Nueva Ecija -
- some of whom were older practitioners - - indicate the affiants'
residence certificates on the documents they notarized, or have
entries in their notarial register for these documents.
As to his alleged failure to comply with the certification required
by Section 3 of Rule 1129 of the Rules of Criminal Procedure,
respondent explained that as counsel of the affiants, he had the
Affidavits, it was complainant who was duty-bound to bring the
said noncompliance to the attention of the prosecutor
conducting the preliminary investigation.
As to his alleged violation of Rule 12.08 of the CPR, respondent
argued that lawyers could testify on behalf of their clients "on
substantial matters, in cases where [their] testimony is essential
to the ends of justice." Complainant charged respondent's
clients with attempted murder. Respondent averred that since
they were in his house when the alleged crime occurred, "his
testimony is very essential to the ends of justice."
Respondent alleged that it was complainant who had threatened
and harassed his clients after the hearing of their case by the
provincial prosecutor on January 4, 2001. Respondent requested
the assistance of the Cabanatuan City Police the following day,
January 5, 2001, which was the next scheduled hearing, to avoid
a repetition of the incident and to allay the fears of his clients.
In support of his allegations, he submitted Certifications10 from
the Cabanatuan City Police and the Joint Affidavit11 of the two
police officers who had assisted them.
Lastly, he contended that the case had been initiated for no
other purpose than to harass him, because he was the counsel
of Barangay Captain Ernesto Ramos in the cases filed by the
latter before the ombudsman and the BJMP against complainant.
After receipt of respondent's Answer, the CBD, through
Commissioner Tyrone R. Cimafranca, set the case for hearing on
June 5, 2001, at two o'clock in the afternoon. Notices12 of the
hearing were sent to the parties by registered mail. On the
scheduled date and time of the hearing, only complainant
appeared. Respondent was unable to do so, apparently because
he had received the Notice only on June 8, 2001.13 The hearing
was reset to July 3, 2001 at two o'clock in the afternoon.
On the same day, June 5, 2001, complainant filed his Reply14
to the verified Answer of respondent. The latter's Rejoinder was
received by the CBD on July 13, 2001.15 It also received
complainant's Letter-Request16 to dispense with the hearings.
Accordingly, it granted that request in its Order17 dated July 24,
2001, issued through Commissioner Cimafranca. It thereby
directed the parties to submit their respective memoranda
within fifteen days from receipt of the Order, after which the
case was to be deemed submitted for resolution.
The CBD received complainant's Memorandum18 on September
26, 2001. Respondent did not file any.
The IBP's Recommendation
On September 27, 2003, the IBP Board of Governors issued
Resolution No. XVI-2003-17219 approving and adopting the
Investigating Commissioner's Report that respondent had
violated specific requirements of the Notarial Law on the
execution of a certification, the entry of such certification in the
notarial register, and the indication of the affiant's residence
certificate. The IBP Board of Governors found his excuse for the
violations unacceptable. It modified, however, the
recommendation20 of the investigating commissioner by
increasing the fine to "P3,000 with a warning that any repetition
of the violation will be dealt with a heavier penalty."
The other charges - - violation of Section 27 of Rule 138 of the
Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of
the CPR - - were dismissed for insufficiency of evidence.
The Court's Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondent's Administrative Liability
Violation of the Notarial Law
181
The Notarial Law is explicit on the obligations and duties of
notaries public. They are required to certify that the party to
every document acknowledged before them has presented the
proper residence certificate (or exemption from the residence
tax); and to enter its number, place of issue and date as part of
such certification.21 They are also required to maintain and
keep a notarial register; to enter therein all instruments
notarized by them; and to "give to each instrument executed,
sworn to, or acknowledged before [them] a number
corresponding to the one in [their] register [and to state therein]
the page or pages of [their] register, on which the same is
recorded."22 Failure to perform these duties would result in the
revocation of their commission as notaries public.23
These formalities are mandatory and cannot be simply
neglected, considering the degree of importance and evidentiary
weight attached to notarized documents. Notaries public
entering into their commissions are presumed to be aware of
these elementary requirements.
In Vda. de Rosales v. Ramos,24 the Court explained the value
and meaning of notarization as follows:
"The importance attached to the act of notarization cannot be
overemphasized. Notarization is not an empty, meaningless,
routinary act. It is invested with substantive public interest, such
that only those who are qualified or authorized may act as
notaries public. Notarization converts a private document into a
public document thus making that document admissible in
evidence without further proof of its authenticity. A notarial
document is by law entitled to full faith and credit upon its face.
Courts, administrative agencies and the public at large must be
able to rely upon the acknowledgment executed by a notary
public and appended to a private instrument."
For this reason, notaries public should not take for granted the
solemn duties pertaining to their office. Slipshod methods in
their performance of the notarial act are never to be
countenanced. They are expected to exert utmost care in the
performance of their duties,25 which are dictated by public
policy and are impressed with public interest.
It is clear from the pleadings before us - - and respondent has
readily admitted - - that he violated the Notarial Law by failing
to enter in the documents notations of the residence certificate,
as well as the entry number and the pages of the notarial
registry.
Respondent believes, however, that noncompliance with those
requirements is not mandatory for affidavits relative to cases
pending before the courts and government agencies. He points
to similar practices of older notaries in Nueva Ecija.
We cannot give credence to, much less honor, his claim. His
belief that the requirements do not apply to affidavits is patently
irrelevant. No law dispenses with these formalities. Au contraire,
the Notarial Law makes no qualification or exception. It is
appalling and inexcusable that he did away with the basics of
notarial procedure allegedly because others were doing so.
Being swayed by the bad example of others is not an acceptable
justification for breaking the law.
We note further that the documents attached to the verified
Complaint are the Joint Counter-Affidavit of respondent's clients
Ernesto Ramos and Rey Geronimo, as well as their witnesses'
Affidavits relative to Criminal Case No. 69-2000 for attempted
murder, filed by complainant's brother against the
aforementioned clients. These documents became the basis of
the present Complaint.
As correctly pointed out by the investigating commissioner,
Section 3 of Rule 112 of the Rules of Criminal Procedure
expressly requires respondent as notary - - in the absence of
any fiscal, state prosecutor or government official authorized to
administer the oath - - to "certify that he has personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits."
Respondent failed to do so with respect to the subject Affidavits
and Counter-Affidavits in the belief that - - as counsel for the
affiants - - he was not required to comply with the certification
requirement.
It must be emphasized that the primary duty of lawyers is to
obey the laws of the land and promote respect for the law and
legal processes.26 They are expected to be in the forefront in
the observance and maintenance of the rule of law. This duty
carries with it the obligation to be well-informed of the existing
laws and to keep abreast with legal developments, recent
enactments and jurisprudence.27 It is imperative that they be
conversant with basic legal principles. Unless they faithfully
comply with such duty, they may not be able to discharge
competently and diligently their obligations as members of the
bar. Worse, they may become susceptible to committing
mistakes.
Where notaries public are lawyers, a graver responsibility is
placed upon them by reason of their solemn oath to obey the
laws.28 No custom or age-old practice provides sufficient excuse
or justification for their failure to adhere to the provisions of the
law. In this case, the excuse given by respondent exhibited his
clear ignorance of the Notarial Law, the Rules of Criminal
Procedure, and the importance of his office as a notary public.
Nonetheless, we do not agree with complainant's plea to disbar
respondent from the practice of law. The power to disbar must
be exercised with great caution.29 Disbarment will be imposed
as a penalty only in a clear case of misconduct that seriously
affects the standing and the character of the lawyer as an officer
of the court and a member of the bar. Where any lesser penalty
can accomplish the end desired, disbarment should not be
decreed.30 Considering the nature of the infraction and the
absence of deceit on the part of respondent, we believe that the
penalty recommended by the IBP Board of Governors is a
sufficient disciplinary measure in this case.
Lawyer as Witness for Client
Complainant further faults respondent for executing before
Prosecutor Leonardo Padolina an affidavit corroborating the
defense of alibi proffered by respondent's clients, allegedly in
violation of Rule 12.08 of the CPR: "A lawyer shall avoid
testifying in behalf of his client."
Rule 12.08 of Canon 12 of the CPR states:
"Rule 12.08 - A lawyer shall avoid testifying in behalf of his
client, except:
a) on formal matters, such as the mailing, authentication or
custody of an instrument and the like;
b) on substantial matters, in cases where his testimony is
essential to the ends of justice, in which event he must, during
his testimony, entrust the trial of the case to another counsel."
Parenthetically, under the law, a lawyer is not disqualified from
being a witness,31 except only in certain cases pertaining to
privileged communication arising from an attorney-client
relationship.32
The reason behind such rule is the difficulty posed upon lawyers
by the task of dissociating their relation to their clients as
witnesses from that as advocates. Witnesses are expected to tell
the facts as they recall them. In contradistinction, advocates are
partisans - - those who actively plead and defend the cause of
others. It is difficult to distinguish the fairness and impartiality
of a disinterested witness from the zeal of an advocate. The
question is one of propriety rather than of competency of the
lawyers who testify for their clients.
182
"Acting or appearing to act in the double capacity of lawyer and
witness for the client will provoke unkind criticism and leave
many people to suspect the truthfulness of the lawyer because
they cannot believe the lawyer as disinterested. The people will
have a plausible reason for thinking, and if their sympathies are
against the lawyer's client, they will have an opportunity, not
likely to be neglected, for charging, that as a witness he fortified
it with his own testimony. The testimony of the lawyer becomes
doubted and is looked upon as partial and untruthful."33
considering that the latter's allegations are corroborated by the
Affidavits of the police officers and the Certifications of the
Cabanatuan City Police.
WHEREFORE, Atty. Edison V. Rafanan is found guilty of
violating the Notarial Law and Canon 5 of the Code of
Professional Responsibility and is hereby FINED P3,000 with a
warning that similar infractions in the future will be dealt with
more severely.

Thus, although the law does not forbid lawyers from being SO ORDERED.
witnesses and at the same time counsels for a cause, the
preference is for them to refrain from testifying as witnesses,
unless they absolutely have to; and should they do so, to
withdraw from active management of the case.34
Notwithstanding this guideline and the existence of the Affidavit
executed by Atty. Rafanan in favor of his clients, we cannot
hastily make him administratively liable for the following
reasons:
First, we consider it the duty of a lawyer to assert every remedy
and defense that is authorized by law for the benefit of the
client, especially in a criminal action in which the latter's life and
liberty are at stake.35 It is the fundamental right of the accused
to be afforded full opportunity to rebut the charges against
them. They are entitled to suggest all those reasonable doubts
that may arise from the evidence as to their guilt; and to ensure
that if they are convicted, such conviction is according to law.
Having undertaken the defense of the accused, respondent, as
defense counsel, was thus expected to spare no effort to save
his clients from a wrong conviction. He had the duty to present
- - by all fair and honorable means - - every defense and
mitigating circumstance that the law permitted, to the end that
his clients would not be deprived of life, liberty or property,
except by due process of law.36
The Affidavit executed by Atty. Rafanan was clearly necessary
for the defense of his clients, since it pointed out the fact that
on the alleged date and time of the incident, his clients were at
his residence and could not have possibly committed the crime
charged against them. Notably, in his Affidavit, complainant
does not dispute the statements of respondent or suggest the
falsity of its contents.
Second, paragraph (b) of Rule 12.08 contemplates a situation in
which lawyers give their testimonies during the trial. In this
instance, the Affidavit was submitted during the preliminary
investigation which, as such, was merely inquisitorial.37 Not
being a trial of the case on the merits, a preliminary
investigation has the oft-repeated purposes of securing innocent
persons against hasty, malicious and oppressive prosecutions;
protecting them from open and public accusations of crime and
from the trouble as well as expense and anxiety of a public trial;
and protecting the State from useless and expensive
prosecutions.38 The investigation is advisedly called
preliminary, as it is yet to be followed by the trial proper.
Nonetheless, we deem it important to stress and remind
respondent to refrain from accepting employment in any matter
in which he knows or has reason to believe that he may be an
essential witness for the prospective client. Furthermore, in
future cases in which his testimony may become essential to
serve the "ends of justice," the canons of the profession require
him to withdraw from the active prosecution of these cases.
No Proof of Harassment
The charge that respondent harassed complainant and uttered
insulting words and veiled threats is not supported by evidence.
Allegation is never equivalent to proof, and a bare charge cannot
be equated with liability.39 It is not the self-serving claim of
complainant but the version of respondent that is more credible,
183
184
FIRST DIVISION
A.C. No. 5299 August 19, 2003
ATTY. ISMAEL G. KHAN, JR., Assistant Court
Administrator and Chief, Public Information Office,
Complainant,
vs.
ATTY. RIZALINO T. SIMBILLO, Respondent.
x-----------------------x
G.R. No. 157053 August 19, 2003
ATTY. RIZALINO T. SIMBILLO, Petitioner,
vs.
IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL
G. KHAN, JR., in his capacity as Assistant Court
Administrator and Chief, Public Information Office,
Respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement
that appeared in the July 5, 2000 issue of the newspaper,
Philippine Daily Inquirer, which reads: "ANNULMENT OF
MARRIAGE Specialist 532-4333/521-2667."1
Ms. Ma. Theresa B. Espeleta, a staff member of the Public
Information Office of the Supreme Court, called up the published
telephone number and pretended to be an interested party. She
spoke to Mrs. Simbillo, who claimed that her husband, Atty.
Rizalino Simbillo, was an expert in handling annulment cases
and can guarantee a court decree within four to six months,
provided the case will not involve separation of property or
custody of children. Mrs. Simbillo also said that her husband
charges a fee of P48,000.00, half of which is payable at the time
of filing of the case and the other half after a decision thereon
has been rendered.
Further research by the Office of the Court Administrator and
the Public Information Office revealed that similar
advertisements were published in the August 2 and 6, 2000
issues of the Manila Bulletin and August 5, 2000 issue of The
Philippine Star.2
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity
as Assistant Court Administrator and Chief of the Public
Information Office, filed an administrative complaint against
Atty. Rizalino T. Simbillo for improper advertising and
solicitation of his legal services, in violation of Rule 2.03 and
Rule 3.01 of the Code of Professional Responsibility and Rule
138, Section 27 of the Rules of Court.3
In his answer, respondent admitted the acts imputed to him, but
argued that advertising and solicitation per se are not prohibited
acts; that the time has come to change our views about the
prohibition on advertising and solicitation; that the interest of
the public is not served by the absolute prohibition on lawyer
advertising; that the Court can lift the ban on lawyer
advertising; and that the rationale behind the decades-old
prohibition should be abandoned. Thus, he prayed that he be
exonerated from all the charges against him and that the Court
promulgate a ruling that advertisement of legal services offered
by a lawyer is not contrary to law, public policy and public order
as long as it is dignified.4
The case was referred to the Integrated Bar of the Philippines
for investigation, report and recommendation.5 On June 29,
2002, the IBP Commission on Bar Discipline passed Resolution
No. XV-2002-306,6 finding respondent guilty of violation of Rules
2.03 and 3.01 of the Code of Professional Responsibility and
Rule 138, Section 27 of the Rules of Court, and suspended him
from the practice of law for one (1) year with the warning that
a repetition of similar acts would be dealt with more severely.
The IBP Resolution was noted by this Court on November 11,
2002.7
In the meantime, respondent filed an Urgent Motion for
Reconsideration,8 which was denied by the IBP in Resolution No.
XV-2002-606 dated October 19, 20029
Hence, the instant petition for certiorari, which was docketed as
G.R. No. 157053 entitled, "Atty. Rizalino T. Simbillo, Petitioner
versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan,
Jr., Asst. Court Administrator and Chief, Public Information
Office, Respondents." This petition was consolidated with A.C.
No. 5299 per the Court’s Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required
to manifest whether or not they were willing to submit the case
for resolution on the basis of the pleadings.10 Complainant filed
his Manifestation on April 25, 2003, stating that he is not
submitting any additional pleading or evidence and is submitting
the case for its early resolution on the basis of pleadings and
records thereof. 11 Respondent, on the other hand, filed a
Supplemental Memorandum on June 20, 2003.
We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-
2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility
read:
Rule 2.03. – A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
Rule 3.01. – A lawyer shall not use or permit the use of any
false, fraudulent, misleading, deceptive, undignified, self-
laudatory or unfair statement or claim regarding his
qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme
Court, grounds therefor. – A member of the bar may be
disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice or other gross
misconduct in such office, grossly immoral conduct or by reason
of his conviction of a crime involving moral turpitude, or for any
violation of the oath which he is required to take before the
admission to practice, or for a willful disobedience appearing as
attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a
business.12 It is a profession in which duty to public service, not
money, is the primary consideration. Lawyering is not primarily
meant to be a money-making venture, and law advocacy is not
a capital that necessarily yields profits.13 The gaining of a
livelihood should be a secondary consideration.14 The duty to
public service and to the administration of justice should be the
primary consideration of lawyers, who must subordinate their
personal interests or what they owe to themselves.15 The
following elements distinguish the legal profession from a
business:
1. A duty of public service, of which the emolument is a by-
product, and in which one may attain the highest eminence
without making much money;
2. A relation as an "officer of the court" to the administration of
justice involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business
185
methods of advertising and encroachment on their practice, or not objectionable. He may likewise have his name listed in a
dealing directly with their clients.16 telephone directory but not under a designation of special
branch of law. (emphasis and italics supplied)
There is no question that respondent committed the acts
complained of. He himself admits that he caused the publication WHEREFORE, in view of the foregoing, respondent RIZALINO
of the advertisements. While he professes repentance and begs T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01
for the Court’s indulgence, his contrition rings hollow considering of the Code of Professional Responsibility and Rule 138, Section
the fact that he advertised his legal services again after he 27 of the Rules of Court. He is SUSPENDED from the practice of
pleaded for compassion and after claiming that he had no law for ONE (1) YEAR effective upon receipt of this Resolution.
intention to violate the rules. Eight months after filing his He is likewise STERNLY WARNED that a repetition of the same
answer, he again advertised his legal services in the August 14, or similar offense will be dealt with more severely.
2001 issue of the Buy & Sell Free Ads Newspaper.17 Ten months
later, he caused the same advertisement to be published in the Let copies of this Resolution be entered in his record as attorney
October 5, 2001 issue of Buy & Sell.18 Such acts of respondent and be furnished the Integrated Bar of the Philippines and all
are a deliberate and contemptuous affront on the Court’s courts in the country for their information and guidance.
authority. SO ORDERED.
What adds to the gravity of respondent’s acts is that in
advertising himself as a self-styled "Annulment of Marriage
Specialist," he wittingly or unwittingly erodes and undermines
not only the stability but also the sanctity of an institution still
considered sacrosanct despite the contemporary climate of
permissiveness in our society. Indeed, in assuring prospective
clients that an annulment may be obtained in four to six months
from the time of the filing of the case,19 he in fact encourages
people, who might have otherwise been disinclined and would
have refrained from dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be
compatible with the dignity of the legal profession. If it is made
in a modest and decorous manner, it would bring no injury to
the lawyer and to the bar.20 Thus, the use of simple signs stating
the name or names of the lawyers, the office and residence
address and fields of practice, as well as advertisement in legal
periodicals bearing the same brief data, are permissible. Even
the use of calling cards is now acceptable.21 Publication in
reputable law lists, in a manner consistent with the standards of
conduct imposed by the canon, of brief biographical and
informative data is likewise allowable. As explicitly stated in Ulep
v. Legal Clinic, Inc.:22
Such data must not be misleading and may include only a
statement of the lawyer’s name and the names of his
professional associates; addresses, telephone numbers, cable
addresses; branches of law practiced; date and place of birth
and admission to the bar; schools attended with dates of
graduation, degrees and other educational distinctions; public
or quasi-public offices; posts of honor; legal authorships; legal
teaching positions; membership and offices in bar associations
and committees thereof, in legal and scientific societies and
legal fraternities; the fact of listings in other reputable law lists;
the names and addresses of references; and, with their written
consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for
that purpose; it cannot be a mere supplemental feature of a
paper, magazine, trade journal or periodical which is published
principally for other purposes. For that reason, a lawyer may not
properly publish his brief biographical and informative data in a
daily paper, magazine, trade journal or society program. Nor
may a lawyer permit his name to be published in a law list the
conduct, management, or contents of which are calculated or
likely to deceive or injure the public or the bar, or to lower
dignity or standing of the profession.
The use of an ordinary simple professional card is also
permitted. The card may contain only a statement of his name,
the name of the law firm which he is connected with, address,
telephone number and special branch of law practiced. The
publication of a simple announcement of the opening of a law
firm or of changes in the partnership, associates, firm name or
office address, being for the convenience of the profession, is
186
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Bar Matter No. 553 June 17, 1993
MAURICIO C. ULEP, petitioner,
vs.
THE LEGAL CLINIC, INC., respondent.
R E SO L U T I O N
REGALADO, J.:
Petitioner prays this Court "to order the respondent to cease and
desist from issuing advertisements similar to or of the same
tenor as that of annexes "A" and "B" (of said petition) and to
perpetually prohibit persons or entities from making
advertisements pertaining to the exercise of the law profession
other than those allowed by law."
The advertisements complained of by herein petitioner are as
follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC,
INC. 8:30 am— 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla.
Annex B
GUAM DIVORCE.
DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce
through The Legal Clinic beginning Monday to Friday during
office hours.
Guam divorce. Annulment of Marriage. Immigration Problems,
Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa.
Declaration of Absence. Remarriage to Filipina Fiancees.
Adoption. Investment in the Phil. US/Foreign Visa for Filipina
Spouse/Children. Call Marivic.
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US
Embassy CLINIC, INC.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 main issues posed for resolution before the Court are
whether or not the services offered by respondent, The Legal
Clinic, Inc., as advertised by it constitutes practice of law and,
in either case, whether the same can properly be the subject of
the advertisements herein complained of.
Before proceeding with an in-depth analysis of the merits of this
case, we deem it proper and enlightening to present hereunder
excerpts from the respective position papers adopted by the
aforementioned bar associations and the memoranda submitted
by them on the issues involved in this bar matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which respondent
endeavored to distinguish the two terms, i.e., "legal support
services" vis-a-vis "legal services", common sense would readily
dictate that the same are essentially without substantial
distinction. For who could deny that document search, evidence
gathering, assistance to layman in need of basic institutional
services from government or non-government agencies like
birth, marriage, property, or business registration, obtaining
documents like clearance, passports, local or foreign visas,
constitutes practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not wish to
make issue with respondent's foreign citations. Suffice it to state
that the IBP has made its position manifest, to wit, that it
strongly opposes the view espoused by respondent (to the effect
that today it is alright to advertise one's legal services).
The IBP accordingly declares in no uncertain terms its opposition
to respondent's act of establishing a "legal clinic" and of
concomitantly advertising the same through newspaper
publications.
The IBP would therefore invoke the administrative supervision
of this Honorable Court to perpetually restrain respondent from
undertaking highly unethical activities in the field of law practice
as aforedescribed.4
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives the
impression that respondent corporation is being operated by
lawyers and that it renders legal services.
While the respondent repeatedly denies that it offers legal
services to the public, the advertisements in question give the
impression that respondent is offering legal services. The
Petition in fact simply assumes this to be so, as earlier
mentioned, apparently because this (is) the effect that the
advertisements have on the reading public.
187
The impression created by the advertisements in question can
be traced, first of all, to the very name being used by respondent
— "The Legal Clinic, Inc." Such a name, it is respectfully
submitted connotes the rendering of legal services for legal
problems, just like a medical clinic connotes medical services for
medical problems. More importantly, the term "Legal Clinic"
connotes lawyers, as the term medical clinic connotes doctors.
Furthermore, the respondent's name, as published in the
advertisements subject of the present case, appears with (the)
scale(s) of justice, which all the more reinforces the impression
that it is being operated by members of the bar and that it offers
legal services. In addition, the advertisements in question
appear with a picture and name of a person being represented
as a lawyer from Guam, and this practically removes whatever
doubt may still remain as to the nature of the service or services
being offered.
It thus becomes irrelevant whether respondent is merely
offering "legal support services" as claimed by it, or whether it
offers legal services as any lawyer actively engaged in law
practice does. And it becomes unnecessary to make a distinction
between "legal services" and "legal support services," as the
respondent would have it. The advertisements in question leave
no room for doubt in the minds of the reading public that legal
services are being offered by lawyers, whether true or not.
B. The advertisements in question are meant to induce the
performance of acts contrary to law, morals, public order and
public policy.
It may be conceded that, as the respondent claims, the
advertisements in question are only meant to inform the general
public of the services being offered by it. Said advertisements,
however, emphasize to Guam divorce, and any law student
ought to know that under the Family Code, there is only one
instance when a foreign divorce is recognized, and that is:
Article 26. . . .
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a
marriage as follows:
Article 1. Marriage is special contract of permanent union
between a man and woman entered into accordance with law
for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by law
and not subject to stipulation, except that marriage settlements
may fix the property relation during the marriage within the
limits provided by this Code.
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
188
require further proceedings because of the factual
considerations involved.
It must be emphasized, however, that some of respondent's
services ought to be prohibited outright, such as acts which tend
to suggest or induce celebration abroad of marriages which are
bigamous or otherwise illegal and void under Philippine law.
While respondent may not be prohibited from simply
disseminating information regarding such matters, it must be
required to include, in the information given, a disclaimer that it
is not authorized to practice law, that certain course of action
may be illegal under Philippine law, that it is not authorized or
capable of rendering a legal opinion, that a lawyer should be
consulted before deciding on which course of action to take, and
that it cannot recommend any particular lawyer without
subjecting itself to possible sanctions for illegal practice of law.
If respondent is allowed to advertise, advertising should be
directed exclusively at members of the Bar, with a clear and
unmistakable disclaimer that it is not authorized to practice law
or perform legal services.
The benefits of being assisted by paralegals cannot be ignored.
But nobody should be allowed to represent himself as a
"paralegal" for profit, without such term being clearly defined by
rule or regulation, and without any adequate and effective
means of regulating his activities. Also, law practice in a
corporate form may prove to be advantageous to the legal
profession, but before allowance of such practice may be
considered, the corporation's Article of Incorporation and By-
laws must conform to each and every provision of the Code of
Professional Responsibility and the Rules of Court.5
2. Philippine Bar Association:
xxx xxx xxx.
Respondent asserts that it "is not engaged in the practice of law
but engaged in giving legal support services to lawyers and
laymen, through experienced paralegals, with the use of modern
computers and electronic machines" (pars. 2 and 3, Comment).
This is absurd. Unquestionably, respondent's acts of holding out
itself to the public under the trade name "The Legal Clinic, Inc.,"
and soliciting employment for its enumerated services fall within
the realm of a practice which thus yields itself to the regulatory
powers of the Supreme Court. For respondent to say that it is
merely engaged in paralegal work is to stretch credulity.
Respondent's own commercial advertisement which announces
a certain Atty. Don Parkinson to be handling the fields of law
belies its pretense. From all indications, respondent "The Legal
Clinic, Inc." is offering and rendering legal services through its
reserve of lawyers. It has been held that the practice of law is
not limited to the conduct of cases in court, but includes drawing
of deeds, incorporation, rendering opinions, and advising clients
as to their legal right and then take them to an attorney and ask
the latter to look after their case in court See Martin, Legal and
Judicial Ethics, 1984 ed., p. 39).
It is apt to recall that only natural persons can engage in the
practice of law, and such limitation cannot be evaded by a
corporation employing competent lawyers to practice for it.
Obviously, this is the scheme or device by which respondent
"The Legal Clinic, Inc." holds out itself to the public and solicits
employment of its legal services. It is an odious vehicle for
deception, especially so when the public cannot ventilate any
grievance for malpractice against the business conduit.
Precisely, the limitation of practice of law to persons who have
been duly admitted as members of the Bar (Sec. 1, Rule 138,
Revised Rules of Court) is to subject the members to the
discipline of the Supreme Court. Although respondent uses its
business name, the persons and the lawyers who act for it are
subject to court discipline. The practice of law is not a profession
open to all who wish to engage in it nor can it be assigned to
another (See 5 Am. Jur. 270). It is a personal right limited to
persons who have qualified themselves under the law. It follows
that not only respondent but also all the persons who are acting
for respondent are the persons engaged in unethical law
practice.6
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
189
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
190
advise as to the law defining his client's obligations to his
employees, to guide his client's obligations to his employees, to
guide his client along the path charted by law. This, of course,
would be the practice of the law. But such is not the fact in the
case before me. Defendant's primarily efforts are along
economic and psychological lines. The law only provides the
frame within which he must work, just as the zoning code limits
the kind of building the limits the kind of building the architect
may plan. The incidental legal advice or information defendant
may give, does not transform his activities into the practice of
law. Let me add that if, even as a minor feature of his work, he
performed services which are customarily reserved to members
of the bar, he would be practicing law. For instance, if as part of
a welfare program, he drew employees' wills.
Another branch of defendant's work is the representations of the
employer in the adjustment of grievances and in collective
bargaining, with or without a mediator. This is not per se the
practice of law. Anyone may use an agent for negotiations and
may select an agent particularly skilled in the subject under
discussion, and the person appointed is free to accept the
employment whether or not he is a member of the bar. Here,
however, there may be an exception where the business turns
on a question of law. Most real estate sales are negotiated by
brokers who are not lawyers. But if the value of the land depends
on a disputed right-of-way and the principal role of the
negotiator is to assess the probable outcome of the dispute and
persuade the opposite party to the same opinion, then it may
be that only a lawyer can accept the assignment. Or if a
controversy between an employer and his men grows from
differing interpretations of a contract, or of a statute, it is quite
likely that defendant should not handle it. But I need not reach
a definite conclusion here, since the situation is not presented
by the proofs.
Defendant also appears to represent the employer before
administrative agencies of the federal government, especially
before trial examiners of the National Labor Relations Board. An
agency of the federal government, acting by virtue of an
authority granted by the Congress, may regulate the
representation of parties before such agency. The State of New
Jersey is without power to interfere with such determination or
to forbid representation before the agency by one whom the
agency admits. The rules of the National Labor Relations Board
give to a party the right to appear in person, or by counsel, or
by other representative. Rules and Regulations, September
11th, 1946, S. 203.31. 'Counsel' here means a licensed
attorney, and ther representative' one not a lawyer. In this
phase of his work, defendant may lawfully do whatever the
Labor Board allows, even arguing questions purely legal.
(Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky,
Introduction to Paralegalism [1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a person engaged in
a lawful calling (which may involve knowledge of the law) is not
engaged in the practice of law provided that:
(a) The legal question is subordinate and incidental to a major
non-legal problem;.
(b) The services performed are not customarily reserved to
members of the bar; .
(c) No separate fee is charged for the legal advice or
information.
All these must be considered in relation to the work for any
particular client as a whole.
1.9. If the person involved is both lawyer and non-lawyer, the
Code of Professional Responsibility succintly states the rule of
conduct:
Rule 15.08 — A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear
to his client whether he is acting as a lawyer or in another
capacity.
1.10. In the present case. the Legal Clinic appears to render
wedding services (See Annex "A" Petition). Services on routine,
straightforward marriages, like securing a marriage license, and
making arrangements with a priest or a judge, may not
constitute practice of law. However, if the problem is as
complicated as that described in "Rx for Legal Problems" on the
Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then
what may be involved is actually the practice of law. If a non-
lawyer, such as the Legal Clinic, renders such services then it is
engaged in the unauthorized practice of law.
1.11. The Legal Clinic also appears to give information on
divorce, absence, annulment of marriage and visas (See
Annexes "A" and "B" Petition). Purely giving informational
materials may not constitute of law. The business is similar to
that of a bookstore where the customer buys materials on the
subject and determines on the subject and determines by
himself what courses of action to take.
It is not entirely improbable, however, that aside from purely
giving information, the Legal Clinic's paralegals may apply the
law to the particular problem of the client, and give legal advice.
Such would constitute unauthorized practice of law.
It cannot be claimed that the publication of a legal text which
publication of a legal text which purports to say what the law is
amount to legal practice. And the mere fact that the principles
or rules stated in the text may be accepted by a particular reader
as a solution to his problem does not affect this. . . . . Apparently
it is urged that the conjoining of these two, that is, the text and
the forms, with advice as to how the forms should be filled out,
constitutes the unlawful practice of law. But that is the situation
with many approved and accepted texts. Dacey's book is sold to
the public at large. There is no personal contact or relationship
with a particular individual. Nor does there exist that relation of
confidence and trust so necessary to the status of attorney and
client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE — THE
REPRESENTATION AND ADVISING OF A PARTICULAR PERSON
IN A PARTICULAR SITUATION. At most the book assumes to
offer general advice on common problems, and does not purport
to give personal advice on a specific problem peculiar to a
designated or readily identified person. Similarly the defendant's
publication does not purport to give personal advice on a specific
problem peculiar to a designated or readily identified person in
a particular situation — in their publication and sale of the kits,
such publication and sale did not constitutes the unlawful
practice of law . . . . There being no legal impediment under the
statute to the sale of the kit, there was no proper basis for the
injunction against defendant maintaining an office for the
purpose of selling to persons seeking a divorce, separation,
annulment or separation agreement any printed material or
writings relating to matrimonial law or the prohibition in the
memorandum of modification of the judgment against
defendant having an interest in any publishing house publishing
his manuscript on divorce and against his having any personal
contact with any prospective purchaser. The record does fully
support, however, the finding that for the change of $75 or $100
for the kit, the defendant gave legal advice in the course of
personal contacts concerning particular problems which might
arise in the preparation and presentation of the purchaser's
asserted matrimonial cause of action or pursuit of other legal
remedies and assistance in the preparation of necessary
documents (The injunction therefore sought to) enjoin conduct
constituting the practice of law, particularly with reference to
the giving of advice and counsel by the defendant relating to
specific problems of particular individuals in connection with a
divorce, separation, annulment of separation agreement sought
191
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:
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the interest
of another with his consent. It is not limited to appearing in
court, or advising and assisting in the conduct of litigation, but
embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the giving of
all legal advice to clients. It embraces all advice to clients and
all actions taken for them in matters connected with the law.
The practice of law is not limited to the conduct of cases on
court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio
St. 23, 193N. E. 650). A person is also considered to be in the
practice of law when he:
. . . . for valuable consideration engages in the business of
advising person, firms, associations or corporations as to their
right under the law, or appears in a representative capacity as
an advocate in proceedings, pending or prospective, before any
court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle
controversies and there, in such representative capacity,
performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the
business of advising clients as to their rights under the law, or
while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of
law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W.
2d 895, 340 Mo. 852).
This Court, in the case of Philippines Lawyers Association v.
Agrava (105 Phil. 173, 176-177),stated:
The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings and
other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in
attachment, and in matters or estate and guardianship have
been held to constitute law practice, as do the preparation and
drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263).
Practice of law under modern conditions consists in no small part
of work performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the
giving of legal advice on a large variety of subjects and the
preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs.
Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved
in litigation. They require in many aspects a high degree of legal
skill, a wide experience with men and affairs, and great capacity
for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an
intimate relation to the administration of justice by the courts.
No valid distinction, so far as concerns the question set forth in
the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which
involves advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients
which rests upon all attorneys. (Moran, Comments on the Rules
o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of
the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar
Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139, 144).
192
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
193
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
194
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
195
196
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the
Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a
member of the provincial board of Isabela, admits that previous
to the last general elections he made use of a card written in
Spanish and Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. — As notary public, he can execute for you a deed of
sale for the purchase of land as required by the cadastral office;
can renew lost documents of your animals; can make your
application and final requisites for your homestead; and can
execute any kind of affidavit. As a lawyer, he can help you collect
your loans although long overdue, as well as any complaint for
or against you. Come or write to him in his town, Echague,
Isabela. He offers free consultation, and is willing to help and
serve the poor.)
The respondent further admits that he is the author of a letter
addressed to a lieutenant of barrio in his home municipality
written in Ilocano, which letter, in translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the
approaching date for our induction into office as member of the
Provincial Board, that is on the 16th of next month. Before my
induction into office I should be very glad to hear your
suggestions or recommendations for the good of the province in
general and for your barrio in particular. You can come to my
house at any time here in Echague, to submit to me any kind of
suggestion or recommendation as you may desire.
I also inform you that despite my membership in the Board I will
have my residence here in Echague. I will attend the session of
the Board of Ilagan, but will come back home on the following
day here in Echague to live and serve with you as a lawyer and
notary public. Despite my election as member of the Provincial
Board, I will exercise my legal profession as a lawyer and notary
public. In case you cannot see me at home on any week day, I
assure you that you can always find me there on every Sunday.
I also inform you that I will receive any work regarding
preparations of documents of contract of sales and affidavits to
be sworn to before me as notary public even on Sundays.
I would like you all to be informed of this matter for the reason
that some people are in the belief that my residence as member
of the Board will be in Ilagan and that I would then be
disqualified to exercise my profession as lawyer and as notary
public. Such is not the case and I would make it clear that I am
free to exercise my profession as formerly and that I will have
my residence here in Echague.
I would request you kind favor to transmit this information to
your barrio people in any of your meetings or social gatherings
so that they may be informed of my desire to live and to serve
with you in my capacity as lawyer and notary public. If the
people in your locality have not as yet contracted the services
of other lawyers in connection with the registration of their land
titles, I would be willing to handle the work in court and would
charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the
applicable legal provisions. Section 21 of the Code of Civil
Procedure as originally conceived related to disbarments of
members of the bar. In 1919 at the instigation of the Philippine
Bar Association, said codal section was amended by Act No.
2828 by adding at the end thereof the following: "The practice
of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice."
The statute as amended conforms in principle to the Canons of
Professionals Ethics adopted by the American Bar Association in
1908 and by the Philippine Bar Association in 1917. Canons 27
and 28 of the Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy
and effective advertisement possible, even for a young lawyer,
and especially with his brother lawyers, is the establishment of
a well-merited reputation for professional capacity and fidelity
to trust. This cannot be forced, but must be the outcome of
character and conduct. The publication or circulation of ordinary
simple business cards, being a matter of personal taste or local
custom, and sometimes of convenience, is not per se improper.
But solicitation of business by circulars or advertisements, or by
personal communications or interview not warranted by
personal relations, is unprofessional. It is equally unprofessional
to procure business by indirection through touters of any kind,
whether allied real estate firms or trust companies advertising
to secure the drawing of deeds or wills or offering retainers in
exchange for executorships or trusteeships to be influenced by
the lawyer. Indirect advertisement for business by furnishing or
inspiring newspaper comments concerning the manner of their
conduct, the magnitude of the interest involved, the importance
of the lawyer's position, and all other like self-laudation, defy
the traditions and lower the tone of our high calling, and are
intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH
AGENTS. — It is unprofessional for a lawyer to volunteer advice
to bring a lawsuit, except in rare cases where ties of blood,
relationship or trust make it his duty to do so. Stirring up strife
and litigation is not only unprofessional, but it is indictable at
common law. It is disreputable to hunt up defects in titles or
other causes of action and inform thereof in order to the
employed to bring suit, or to breed litigation by seeking out
those with claims for personal injuries or those having any other
grounds of action in order to secure them as clients, or to
employ agents or runners for like purposes, or to pay or reward
directly or indirectly, those who bring or influence the bringing
of such cases to his office, or to remunerate policemen, court or
prison officials, physicians, hospital attaches or others who may
succeed, under the guise of giving disinterested friendly advice,
in influencing the criminal, the sick and the injured, the ignorant
or others, to seek his professional services. A duty to the public
and to the profession devolves upon every member of the bar
having knowledge of such practices upon the part of any
197
practitioner immediately to inform thereof to the end that the
offender may be disbarred.
Common barratry consisting of frequently stirring up suits and
quarrels between individuals was a crime at the common law,
and one of the penalties for this offense when committed by an
attorney was disbarment. Statutes intended to reach the same
evil have been provided in a number of jurisdictions usually at
the instance of the bar itself, and have been upheld as
constitutional. The reason behind statutes of this type is not
difficult to discover. The law is a profession and not a business.
The lawyer may not seek or obtain employment by himself or
through others for to do so would be unprofessional. (State vs.
Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625; People vs.
Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly
practice of solicitation of cases by lawyers. It is destructive of
the honor of a great profession. It lowers the standards of that
profession. It works against the confidence of the community in
the integrity of the members of the bar. It results in needless
litigation and in incenting to strife otherwise peacefully inclined
citizens.
The solicitation of employment by an attorney is a ground for
disbarment or suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the
admitted facts, the respondent stands convicted of having
solicited cases in defiance of the law and those canons.
Accordingly, the only remaining duty of the court is to fix upon
the action which should here be taken. The provincial fiscal of
Isabela, with whom joined the representative of the Attorney-
General in the oral presentation of the case, suggests that the
respondent be only reprimanded. We think that our action
should go further than this if only to reflect our attitude toward
cases of this character of which unfortunately the respondent's
is only one. The commission of offenses of this nature would
amply justify permanent elimination from the bar. But as
mitigating, circumstances working in favor of the respondent
there are, first, his intimation that he was unaware of the
impropriety of his acts, second, his youth and inexperience at
the bar, and, third, his promise not to commit a similar mistake
in the future. A modest period of suspension would seem to fit
the case of the erring attorney. But it should be distinctly
understood that this result is reached in view of the
considerations which have influenced the court to the relatively
lenient in this particular instance and should, therefore, not be
taken as indicating that future convictions of practice of this kind
will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of
the court is that the respondent Luis B. Tagorda be and is hereby
suspended from the practice as an attorney-at-law for the period
of one month from April 1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote

198
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.

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 &
McKenzie is not authorized to practise law here. (See Ruben E.
Agpalo, Legal Ethics, 1983 Ed., p. 115.)
WHEREFORE, the respondents are enjoined from practising law
under the firm name Baker & McKenzie.
SO ORDERED.

199
200
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
A.M. No. P-99-1292 February 26, 1999
JULIETA BORROMEO SAMONTE, complainant,
vs.
ATTY. ROLANDO R. GATDULA, Branch Clerk of Court,
respondent.
RESOLUTION
GONZAGA-REYES, J.:
The complaint filed by Julieta Borremeo Samonte charges
Rolando R. Gatdula, RTC, Branch 220, Quezon City with grave
misconduct consisting in the alleged engaging in the private
practice of law which is in conflict with his official functions as
Branch Clerk of Court.
Complainant alleges that she is the authorized representative of
her sister Flor Borromeo de Leon, the plaintiff, in Civil Case No.
37-14552 for ejectment, filed with the Metropolitan Trial Court
of Quezon City, Branch 37. A typographical error was committed
in the complaint which stated that the address of defendant is
No. 63-C instead of 63-B, P. Tuazon Blvd., Cubao, Quezon City.
The mistake was rectified by the filing of an amended complaint
which was admitted by the Court. A decision was rendered in
favor of the plaintiff who subsequently filed a motion for
execution. Complainant, however, was surprised to receive a
temporary restraining order signed by Judge Prudencio Castillo
of Branch 220, RTC, Quezon City, where Atty. Rolando Gatdula
is the Branch Clerk Court, enjoining the execution of the decision
of the Metropolitan Trial Court. Complainant alleges that the
issuance of the temporary restraining order was hasty and
irregular as she was never notified of the application for
preliminary injunction.
Complainant further alleges that when she went to Branch 220,
RTC, Quezon City, to inquire about the reason for the issuance
of the temporary restraining order, respondent Atty. Rolando
Gatdula, blamed her lawyer for writing the wrong address in the
complaint for ejectment, and told her that if she wanted the
execution to proceed, she should change her lawyer and retain
the law office of respondent, at the same time giving his calling
card with the name "Baligod, Gatdula, Tacardon, Dimailig and
Celera" with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd.,
Cubao, Quezon City; otherwise she will not be able to eject the
defendant Dave Knope. Complainant told respondent that she
could not decide because she was only representing her sister.
To her consternation, the RTC Branch 220 issued an order
granting the preliminary injunction as threatened by the
respondent despite the fact that the MTC, Brach 37 had issued
an Order directing the execution of the Decision in Civil Case No.
37-14552.
Asked to comment, respondent Atty. Gatdula recited the
antecedents in the ejectment case and the issuance of the
restraining order by the Regional Trial Court, and claimed that
contrary to complainant Samonte's allegation that she was not
notified of the raffle and the hearing, the Notice of Hearing on
the motion for the issuance of a Temporary Retraining Order
was duly served upon the parties, and that the application for
injunctive relief was heard before the temporary restraining
order was issued. The preliminary injunction was also set for
hearing on August 7, 1996.
The respondent's version of the incident is that sometime before
the hearing of the motion for the issuance of the temporary
restraining order, complainant Samonte went to court "very
mad" because of the issuance of the order stopping the
execution of the decision in the ejectment case. Respondent
tried to calm her down, and assured her that the restraining
order was only temporary and that the application for
preliminary injunction would still be heard. Later the Regional
Trial Court granted the application for a writ of preliminary
injunction. The complainant went back to court "fuming mad"
because of the alleged unreasonableness of the court in issuing
the injunction.
Respondent Gatdula claims that thereafter complainant
returned to his office, and informed him that she wanted to
change counsel and that a friend of hers recommended the Law
Firm of "Baligod, Gatdula, Tacardon, Dimailig and Celera," at the
same time showing a calling card, and asking if he could handle
her case. Respondent refused as he was not connected with the
law firm, although he was invited to join but he choose to remain
in the judiciary. Complainant returned to court a few days later
and told him that if he cannot convince the judge to recall the
writ of preliminary injunction, she will file an administrative case
against respondent and the judge. The threat was repeated but
the respondent refused to be pressured. Meanwhile, the
Complainant's Motion to Dissolve the Writ of Preliminary
Injunction was denied. Respondent Gatdula claims that the
complainant must have filed this administrative charge because
of her frustration in procuring the ejectment of the defendant
lessee from the premises. Respondent prays for the dismissal of
the complainant against him.
The case was referred to Executive Judge Estrella Estrada, RTC,
Quezon City, for investigation, report and recommendation.
In her report, Judge Estrada states that the case was set for
hearing three times, on September 7, 1997, on September 17,
and on September 24, 1997, but neither complainant nor her
counsel appeared, despite due notice. The return of service of
the Order setting the last hearing stated that complainant is still
abroad. There being no definite time conveyed to the court for
the return of the complainant, the investigating Judge
proceeded with the investigation by "conducting searching
question" upon respondent based on the allegations in the
complaint, and asked for the record of Civil Case No. Q-96-
28187 for evaluation. The case was set for hearing for the last
time on October 22, 1997, to give complainant a last chance to
appear, but there was again no appearance despite notice.
The respondent testified in his own behalf to affirm the
statements in his Comment, and submitted documentary
evidence consisting mainly of the pleadings in MTC Civil Case
No. 37-14552, and in RTC Civil Case No. Q-9628187 to show
that the questioned orders of the court were not improperly
issued.
The investigating judge made the following findings:
For failure of the complainant to appear at the several hearings
despite notice, she failed to substantiate her allegations in the
complaint, particularly that herein respondent gave her his
calling card and tried to convince her to change her lawyer. This
being the case, it cannot be established with certainty that
respondent indeed gave her his calling card even convinced her
to change her lawyer. Moreover, as borne by the records of the
Civil Case No. Q-96-28187, complainant was duly notified of all
the proceedings leading to the issuance of the TRO and the
subsequent orders of Judge Prudencio Altre Castillo, Jr. of RTC,
Branch 220. Complainant's lack of interest in prosecuting this
administrative case could be an indication that her filing of the
201
charge against the respondent is only intended to harass the (2) Engage in the private practice of their profession unless
respondent for her failure to obtain a favorable decision from authorized by the Constitution or law, provided that such
the Court. practice will not conflict or tend to conflict with official functions.
However, based on the record of this administrative case, the Time and again this Court has said that the conduct and
calling card attached as Annex "B" of the complainant's affidavit behavior of every one connected with an office charged with the
dated September 25, 1996 allegedly given by respondent to dispensation of justice, from the presiding judge to the lowliest
complainant would show that the name of herein respondent clerk, should be circumscribed with the heavy burden of
was indeed include in the BALIGOD, GATDULA, TACARDON, responsibility. His conduct, at all times must only be
DIMAILIG & CELERA LAW OFFICES. While respondent denied characterized by propriety and decorum but above all else must
having assumed any position in said office, the fact remains that be above suspicion. 3
his name is included therein which may therefore tend to show
that he has dealings with said office. Thus, while he may not be WHEREFORE, respondent Rolando R. Gatdula. Branch Clerk of
actually and directly employed with the firm, the fact that his Court, RTC, Branch 220, Quezon City is hereby reprimanded for
name appears on the calling card as partner in the Baligod, engaging in the private practice of law with the warning that a
Gatdula, Tacardon, Dimailig & Celera Law Offices give the repetition of the same offense will be dealt with more severely.
impression that he is connected therein and may constitute an He is further ordered to cause the exclusion of his name in the
act of solicitation and private practice which is declared unlawful firm name of any office engaged in the private practice of law.
under Republic Act. No. 6713. It is to be noted, however, that SO ORDERED.
complainant failed to establish by convincing evidence that
respondent actually offered to her the services of their law
office. Thus, the violation committed by respondent in having
his name included/retained in the calling card may only be
considered as a minor infraction for which he must also be
administratively sanctioned.
and recommended that Atty. Gatdula be admonished and
censured for the minor infraction he has committed.
Finding: We agree with the investigating judge that the
respondent is guilty of an infraction. The complainant by her
failure to appear at the hearings, failed to substantiate her
allegation that it was the respondent who gave her calling card
"Baligod, Gatdula, Tacardon, Dimailig and Celera Law Offices"
and that he tried to convince her to change counsels. We find
however, that while the respondent vehemently denies the
complainant's allegations, he does not deny that his name
appears on the calling card attached to the complaint, which
admittedly came into the hands of the complainant. The
respondent testified before the Investigating Judge as follows:
Q: How about your statement that you even gave her a calling
card of the "Baligod, Gatdula, Pardo, Dimailig and Celera law
Offices at Room 220 Mariwasa building?
A: I vehemently deny the allegation of the complainant that I
gave her a calling card. I was surprised when she presented (it)
to me during one of her follow-ups of the case before the court.
She told me that a friend of hers recommended such firm and
she found out that my name is included in that firm. I told her
that I have not assumed any position in the law firm. And I am
with the Judiciary since I passed the bar. It is impossible for me
to enter an appearance as her counsel in the very same court
where I am the Branch Clerk of Court.
The above explanation tendered by the Respondent is an
admission that it is his name appears on the calling card, a
permissible form of advertising or solicitation of legal services. 1
Respondent does not claim that the calling card was printed
without his knowledge or consent, and the calling card 2 carries
his name primarily and the name "Baligod, Gatdula, Tacardon,
Dimailig and Celera with address at 220 Mariwasa Bldg., 717
Aurora Blvd., Cubao, Quezon City" in the left corner. The card
clearly gives the impression that he is connected with the said
law firm. The inclusion/retention of his name in the professional
card constitutes an act of solicitation which violates Section 7
sub-par. (b)(2) of Republic Act No. 6713, otherwise known as
"Code of Conduct and Ethical Standards for the Public Officials
and Employees" which declares it unlawful for a public official or
employee to, among others:

202
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 3056 August 16, 1991
FERNANDO T. COLLANTES, complainant,
vs.
ATTY. VICENTE C. RENOMERON respondent.
PER CURIAM:p
This complaint for disbarment is related to the administrative
case which complainant Attorney Fernando T. Collantes, house
counsel for V & G Better Homes Subdivision, Inc. (V & G for
short), filed against Attorney Vicente C. Renomeron, Register of
Deeds of Tacloban City, for the latter's irregular actuations with
regard to the application of V & G for registration of 163 pro
forma Deeds of Absolute Sale with Assignment of lots in its
subdivision. The present complaint charges the respondent with
the following offenses:
1. Neglecting or refusing inspite (sic) repeated requests and
without sufficient justification, to act within reasonable time
(sic) the registration of 163 Deeds of Absolute Sale with
Assignment and the eventual issuance and transfer of the
corresponding 163 transfer certificates of titles to the GSIS, for
the purpose of obtaining some pecuniary or material benefit
from the person or persons interested therein.
2. Conduct unbecoming of public official.
3. Dishonesty.
4. Extortion.
5. Directly receiving pecuniary or material benefit for himself in
connection with pending official transaction before him.
6. Causing undue injury to a party, the GSIS [or] Government
through manifest partiality, evident bad faith or gross
inexcusable negligence.
7. Gross ignorance of the law and procedure. (p. 10, Rollo.)
As early as January 15, 1987, V & G had requested the
respondent Register of Deeds to register some 163 deeds of sale
with assignment (in favor of the GSIS) of lots of the V & G
mortgaged to GSIS by the lot buyers. There was no action from
the respondent.
Another request was made on February 16, 1987 for him to
approve or deny registration of the uniform deeds of absolute
sale with assignment. Still no action except to require V & G to
submit proof of real estate tax payment and to clarify certain
details about the transactions.
Although V & G complied with the desired requirements,
respondent Renomeron suspended the registration of the
documents pending compliance by V & G with a certain "special
arrangement" between them, which was that V & G should
provide him with a weekly round trip ticket from Tacloban to
Manila plus P2,000.00 as pocket money per trip, or, in lieu
thereof, the sale of respondent's Quezon City house and lot by
V & G or GSIS representatives.
On May 19, 1987, respondent confided to the complainant that
he would act favorably on the 163 registrable documents of V &
G if the latter would execute clarificatory affidavits and send
money for a round trip plane ticket for him.
The plane fare amounting to P800 (without the pocket money of
P2,000) was sent to respondent through his niece.
Because of V & G's failure to give him pocket money in addition
to plane fare, respondent imposed additional registration
requirements. Fed up with the respondent's extortionate tactics,
the complainant wrote him a letter on May 20, 1987 challenging
him to act on all pending applications for registration of V & G
within twenty-four (24) hours.
On May 22, 1987, respondent formally denied registration of the
transfer of 163 certificates of title to the GSIS on the uniform
ground that the deeds of absolute sale with assignment were
ambiguous as to parties and subject matter. On May 26, 1987,
Attorney Collantes moved for a reconsideration of said denial,
stressing that:
... since the year 1973 continuously up to December 1986 for a
period of nearly fifteen (15) years or for a sum total of more
than 2,000 same set of documents which have been repeatedly
and uniformly registered in the Office of the Register of Deeds
of Tacloban City under Attys. Modesto Garcia and Pablo
Amascual Jr., it is only during the incumbency of Atty. Vicente
C. Renomeron, that the very same documents of the same tenor
have been refused or denied registration ... (p. 15, Rollo.)
On May 27, 1987, respondent elevated the matter en consulta
to the Administrator, National Land Titles and Deeds
Registration Administration (NLTDRA) (now the Land
Registration Authority [LRA]). In a Resolution dated July
27,1987 (Consulta No. 1579), the NLTDRA ruled that the
questioned documents were registrable. Heedless of the
NLTDRA's opinion, respondent continued to sit on V & Gs 163
deeds of sale with assignment.
Exasperated by respondent's conduct, the complainant filed with
the NLTDRA on June 4, 1987 administrative charges (docketed
as Adm. Case No. 87-15), against respondent Register of Deeds.
Upon receipt of the charges, NLTDRA Administrator Teodoro G.
Bonifacio directed respondent to explain in writing why no
administrative disciplinary action should be taken against him.
Respondent was further asked whether he would submit his case
on the basis of his answer, or be heard in a formal investigation.
In his answer dated July 9, 1987, respondent denied the charges
of extortion and of directly receiving pecuniary or material
benefit for himself in connection with the official transactions
awaiting his action.
Although an investigator was appointed by NLTDRA
Administrator Bonifacio to hear Attorney Collantes' charges
against him, Attorney Renomeron waived his right to a formal
investigation. Both parties submitted the case for resolution
based on the pleadings.
The investigator, Attorney Leonardo Da Jose, recommended
dropping the charges of: (1) dishonesty; (2) causing undue
injury to a party through manifest partiality, evident bad faith
or gross inexcusable negligence; and (3) gross ignorance of the
law and procedure. He opined that the charge of neglecting or
refusing, in spite repeated requests and without sufficient
justification, to act within a reasonable time on the registration
of the documents involved, in order to extort some pecuniary or
material benefit from the interested party, absorbed the charges
of conduct unbecoming of a public official, extortion, and directly
receiving some pecuniary or material benefit for himself in
connection with pending official transactions before him.
Brushing aside the investigator's recommendation, NLTDRA
Administrator Teodoro G. Bonifacio on February 22, 1988,
recommended to Secretary of Justice Sedfrey A. Ordoñez that
the respondent: (1) be found guilty of simple neglect of duty:
(2) be reprimanded to act with dispatch on documents
203
presented to him for registration; and (3) be warned that a
repetition of similar infraction will be dealt with more severely.
After due investigation of the charges, Secretary Ordoñez found
respondent guilty of grave misconduct.
Our study and consideration of the records of the case indicate
that ample evidence supports the Investigating Officer's findings
that the respondent committed grave misconduct.
The respondent unreasonably delayed action on the documents
presented to him for registration and, notwithstanding
representations by the parties interested for expeditious action
on the said documents, he continued with his inaction.
The records indicate that the respondent eventually formally
denied the registration of the documents involved; that he
himself elevated the question on the registrability of the said
documents to Administrator Bonifacio after he formally denied
the registration thereof, that the Administrator then resolved in
favor of the registrability of the said documents in question; and
that, such resolution of the Administrator notwithstanding, the
respondent still refused the registration thereof but demanded
from the parties interested the submission of additional
requirements not adverted to in his previous denial.
xxx xxx xxx
In relation to the alleged 'special arrangement,' although the
respondent claims that he neither touched nor received the
money sent to him, on record remains uncontroverted the
circumstance that his niece, Ms. de la Cruz, retrieved from him
the amount of P800.00 earlier sent to him as plane fare, not in
the original denomination of P100.00 bills but in P50.00 bills.
The respondent had ample opportunity to clarify or to
countervail this related incident in his letter dated 5 September
1987 to Administrator Bonifacio but he never did so.
... We believe that, in this case, the respondent's being new in
office cannot serve to mitigate his liability. His being so should
have motivated him to be more aware of applicable laws, rules
and regulations and should have prompted him to do his best in
the discharge of his duties. (pp. 17-18, Rollo.)
Secretary Ordoñez recommended to President Corazon C.
Aquino that Renomeron be dismissed from the service, with
forfeiture of leave credits and retirement benefits, and with
prejudice to re-employment in the government service, effective
immediately.
As recommended by the Secretary of Justice, the President of
the Philippines, by Adm. Order No. 165 dated May 3, 1990,
dismissed the respondent from the government service (pp.
1419, Rollo).
Less than two weeks after filing his complaint against
Renomeron in the NLTDRA, Attorney Collantes also filed in this
Court on June 16, 1987, a disbarment complaint against said
respondent.
The issue in this disbarment proceeding is whether the
respondent register of deeds, as a lawyer, may also be
disciplined by this Court for his malfeasances as a public official.
The answer is yes, for his misconduct as a public official also
constituted a violation of his oath as a lawyer.
The lawyer's oath (Rule 138, Section 17, Rules of Court; People
vs. De Luna, 102 Phil. 968), imposes upon every lawyer the duty
to delay no man for money or malice. The lawyer's oath is a
source of his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary action (Legal
Ethics, Ruben E. Agpalo, 1983 Edition, pp. 66-67).
As the late Chief Justice Fred Ruiz Castro said:
A person takes an oath when he is admitted to the Bar which is
designed to impress upon him his responsibilities. He thereby
becomes an "officer of the court" on whose shoulders rests the
grave responsibility of assisting the courts in the proper. fair,
speedy, and efficient administration of justice. As an officer of
the court he is subject to a rigid discipline that demands that in
his every exertion the only criterion he that truth and justice
triumph. This discipline is what as given the law profession its
nobility, its prestige, its exalted place. From a lawyer, to
paraphrase Justice Felix Frankfurter, are expected those
qualities of truth-speaking, a high sense of honor, full candor,
intellectual honesty, and the strictest observance of fiduciary
responsibility— all of which, throughout the centuries, have
been compendiously described as moral character.
Membership in the Bar is in the category of a mandate to public
service of the highest order.1âwphi1 A lawyer is an oath-bound
servant of society whose conduct is clearly circumscribed by
inflexible norms of law and ethics, and whose primary duty is
the advancement of the quest of truth and justice, for which he
has sworn to be a fearless crusader. (Apostacy in the Legal
Profession, 64 SCRA 784, 789- 790; emphasis supplied.)
The Code of Professional Responsibility applies to lawyers in
government service in the discharge of their official tasks
(Canon 6). Just as the Code of Conduct and Ethical Standards
for Public Officials requires public officials and employees to
process documents and papers expeditiously (Sec. 5, subpars.
[c] and [d] and prohibits them from directly or indirectly having
a financial or material interest in any transaction requiring the
approval of their office, and likewise bars them from soliciting
gifts or anything of monetary value in the course of any
transaction which may be affected by the functions of their office
(See. 7, subpars. [a] and [d]), the Code of Professional
Responsibility forbids a lawyer to engage in unlawful, dishonest,
immoral or deceitful conduct (Rule 1.01, Code of Professional
Responsibility), or delay any man's cause "for any corrupt
motive or interest" (Rule 103).
A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he, whether in public or
private life, behave in a scandalous manner to the discredit of
the legal profession. (Rule 7.03, Code of Professional
Responsibility.)
This Court has ordered that only those who are "competent,
honorable, and reliable" may practice the profession of law
(Noriega vs. Sison, 125 SCRA 293) for every lawyer must pursue
"only the highest standards in the practice of his calling" (Court
Administrator vs. Hermoso, 150 SCRA 269, 278).
The acts of dishonesty and oppression which Attorney
Renomeron committed as a public official have demonstrated his
unfitness to practice the high and noble calling of the law
(Bautista vs. Judge Guevarra, 142 SCRA 632; Court
Administrator vs. Rodolfo G. Hermoso, 150 SCRA 269). He
should therefore be disbarred.
WHEREFORE, it is hereby ordered that Attorney Vicente C.
Renomeron be disbarred from the practice of law in the
Philippines, and that his name be stricken off the Roll of
Attorneys
SO ORDERED
204
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 6788 August 23, 2007
(Formerly, CBD 382)
DIANA RAMOS, Complainant,
vs.
ATTY. JOSE R. IMBANG, Respondent.
RESOLUTION
PER CURIAM:
This is a complaint for disbarment or suspension1 against Atty.
Jose R. Imbang for multiple violations of the Code of Professional
Responsibility.
The Complaint
In 1992, the complainant Diana Ramos sought the assistance of
respondent Atty. Jose R. Imbang in filing civil and criminal
actions against the spouses Roque and Elenita Jovellanos.2 She
gave respondent ₱8,500 as attorney's fees but the latter issued
a receipt for ₱5,000 only.3
The complainant tried to attend the scheduled hearings of her
cases against the Jovellanoses. Oddly, respondent never
allowed her to enter the courtroom and always told her to wait
outside. He would then come out after several hours to inform
her that the hearing had been cancelled and rescheduled.4 This
happened six times and for each "appearance" in court,
respondent charged her ₱350.
After six consecutive postponements, the complainant became
suspicious. She personally inquired about the status of her cases
in the trial courts of Biñan and San Pedro, Laguna. She was
shocked to learn that respondent never filed any case against
the Jovellanoses and that he was in fact employed in the Public
Attorney's Office (PAO).5
Respondent's Defense
According to respondent, the complainant knew that he was in
the government service from the very start. In fact, he first met
the complainant when he was still a district attorney in the
Citizen's Legal Assistance Office (predecessor of PAO) of Biñan,
Laguna and was assigned as counsel for the complainant's
daughter.6
In 1992, the complainant requested him to help her file an action
for damages against the Jovellanoses.7 Because he was with the
PAO and aware that the complainant was not an indigent, he
declined.8 Nevertheless, he advised the complainant to consult
Atty. Tim Ungson, a relative who was a private practitioner.9
Atty. Ungson, however, did not accept the complainant's case
as she was unable to come up with the acceptance fee agreed
upon.10 Notwithstanding Atty. Ungson's refusal, the complainant
allegedly remained adamant. She insisted on suing the
Jovellanoses. Afraid that she "might spend" the cash on hand,
the complainant asked respondent to keep the ₱5,000 while she
raised the balance of Atty. Ungson's acceptance fee.11
A year later, the complainant requested respondent to issue an
antedated receipt because one of her daughters asked her to
account for the ₱5,000 she had previously given the respondent
for safekeeping.12 Because the complainant was a friend, he
agreed and issued a receipt dated July 15, 1992.13
On April 15, 1994, respondent resigned from the PAO.14 A few
months later or in September 1994, the complainant again
asked respondent to assist her in suing the Jovellanoses.
Inasmuch as he was now a private practitioner, respondent
agreed to prepare the complaint. However, he was unable to
finalize it as he lost contact with the complainant.15
Recommendation of the IBP
Acting on the complaint, the Commission on Bar Discipline
(CBD) of the Integrated Bar of the Philippines (IBP) where the
complaint was filed, received evidence from the parties. On
November 22, 2004, the CBD submitted its report and
recommendation to the IBP Board of Governors.16
The CBD noted that the receipt17 was issued on July 15, 1992
when respondent was still with the PAO.18 It also noted that
respondent described the complainant as a shrewd
businesswoman and that respondent was a seasoned trial
lawyer. For these reasons, the complainant would not have
accepted a spurious receipt nor would respondent have issued
one. The CBD rejected respondent's claim that he issued the
receipt to accommodate a friend's request.19 It found
respondent guilty of violating the prohibitions on government
lawyers from accepting private cases and receiving lawyer's fees
other than their salaries.20 The CBD concluded that respondent
violated the following provisions of the Code of Professional
Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property
collected or received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service which
he knows or should know that he is not qualified to render.
However, he may render such service if, with the consent of his
client, he can obtain as collaborating counsel a lawyer who is
competent on the matter.
Thus, it recommended respondent's suspension from the
practice of law for three years and ordered him to immediately
return to the complainant the amount of ₱5,000 which was
substantiated by the receipt.21
The IBP Board of Governors adopted and approved the findings
of the CBD that respondent violated Rules 1.01, 16.01 and 18.01
of the Code of Professional Responsibility. It, however, modified
the CBD's recommendation with regard to the restitution of
₱5,000 by imposing interest at the legal rate, reckoned from
1995 or, in case of respondent's failure to return the total
amount, an additional suspension of six months.22
The Court's Ruling
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and
integrity.23 More specifically, lawyers in government service are
expected to be more conscientious of their actuations as they
are subject to public scrutiny. They are not only members of the
bar but also public servants who owe utmost fidelity to public
service.24
Government employees are expected to devote themselves
completely to public service. For this reason, the private practice
of profession is prohibited. Section 7(b)(2) of the Code of Ethical
Standards for Public Officials and Employees provides:
Section 7. Prohibited Acts and Transactions. -- In addition to
acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following
constitute prohibited acts and transactions of any public official
and employee and are hereby declared unlawful:
xxx xxx xxx
205
(b) Outside employment and other activities related thereto, with a high degree of social responsibility, higher than his
public officials and employees during their incumbency shall not: brethren in private practice.321avvphi1
xxx xxx xxx There is, however, insufficient basis to find respondent guilty of
violating Rule 16.01 of the Code of Professional Responsibility.
(1) Engage in the private practice of profession unless Respondent did not hold the money for the benefit of the
authorized by the Constitution or law, provided that such complainant but accepted it as his attorney's fees. He neither
practice will not conflict with their official function.25 held the amount in trust for the complainant (such as an amount
Thus, lawyers in government service cannot handle private delivered by the sheriff in satisfaction of a judgment obligation
cases for they are expected to devote themselves full-time to in favor of the client)33 nor was it given to him for a specific
the work of their respective offices. purpose (such as amounts given for filing fees and bail bond).34
Nevertheless, respondent should return the ₱5,000 as he, a
In this instance, respondent received ₱5,000 from the government lawyer, was not entitled to attorney's fees and not
complainant and issued a receipt on July 15, 1992 while he was allowed to accept them.35
still connected with the PAO. Acceptance of money from a client
establishes an attorney-client relationship.26 Respondent's WHEREFORE, Atty. Jose R. Imbang is found guilty of violating
admission that he accepted money from the complainant and the lawyer’s oath, Canon 1, Rule 1.01 and Canon 18, Rule 18.01
the receipt confirmed the presence of an attorney-client of the Code of Professional Responsibility. Accordingly, he is
relationship between him and the complainant. Moreover, the hereby DISBARRED from the practice of law and his name is
receipt showed that he accepted the complainant's case while ordered stricken from the Roll of Attorneys. He is also ordered
he was still a government lawyer. Respondent clearly violated to return to complainant the amount of ₱5,000 with interest at
the prohibition on private practice of profession. the legal rate, reckoned from 1995, within 10 days from receipt
of this resolution.
Aggravating respondent's wrongdoing was his receipt of
attorney's fees. The PAO was created for the purpose of Let a copy of this resolution be attached to the personal records
providing free legal assistance to indigent litigants.27 Section of respondent in the Office of the Bar Confidant and notice of
14(3), Chapter 5, Title III, Book V of the Revised Administrative the same be served on the Integrated Bar of the Philippines and
Code provides: on the Office of the Court Administrator for circulation to all
courts in the country.
Sec. 14. xxx
SO ORDERED.
The PAO shall be the principal law office of the Government in
extending free legal assistance to indigent persons in criminal,
civil, labor, administrative and other quasi-judicial cases.28
As a PAO lawyer, respondent should not have accepted
attorney's fees from the complainant as this was inconsistent
with the office's mission.29 Respondent violated the prohibition
against accepting legal fees other than his salary.
Canon 1 of the Code of Professional Responsibility provides:
Canon 1. — A lawyer shall uphold the constitution, obey the laws
of the land and promote respect for the law and legal processes.
Every lawyer is obligated to uphold the law.30 This undertaking
includes the observance of the above-mentioned prohibitions
blatantly violated by respondent when he accepted the
complainant's cases and received attorney's fees in
consideration of his legal services. Consequently, respondent's
acceptance of the cases was also a breach of Rule 18.01 of the
Code of Professional Responsibility because the prohibition on
the private practice of profession disqualified him from acting as
the complainant's counsel.
Aside from disregarding the prohibitions against handling
private cases and accepting attorney's fees, respondent also
surreptitiously deceived the complainant. Not only did he fail to
file a complaint against the Jovellanoses (which in the first place
he should not have done), respondent also led the complainant
to believe that he really filed an action against the Jovellanoses.
He even made it appear that the cases were being tried and
asked the complainant to pay his "appearance fees" for hearings
that never took place. These acts constituted dishonesty, a
violation of the lawyer's oath not to do any falsehood.31
Respondent's conduct in office fell short of the integrity and
good moral character required of all lawyers, specially one
occupying a public office. Lawyers in public office are expected
not only to refrain from any act or omission which tend to lessen
the trust and confidence of the citizenry in government but also
uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing. A
government lawyer is a keeper of public faith and is burdened

206
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 109870 December 1, 1995
EDILBERTO M. CUENCA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
RESOLUTION
FRANCISCO, J.:
After his petition for review of the Court of Appeals' judgment1
affirming his conviction for violation of the "Trust Receipts Law"
(Presidential Decree No. 115) was denied by this Court in a
Resolution dated February 9, 1994,2 petitioner filed on July 6,
1994 a pleading entitled "SUBSTITUTION OF COUNSEL WITH
MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL"3 setting
forth, in relation to the motion for new trial:
6. The Motion for New Trial shall be grounded on newly
discovered evidence and excusible (sic) negligence, and shall be
supported by affidavits of:
(i) an officer of private complainant corporation who will
exculpate petitioner;
(ii) an admission against interest by a former officer of the
owner of Ultra Corporation (the Corporation that employed
petitioner), which actually exercised control over the affairs of
Ultra; and
(iii) the petitioner wherein he will assert innocence for the first
time and explain why he was unable to do so earlier.
The Court in its July 27, 1994 Resolution,4 among other things,
granted the substitution but denied the motion for leave to file
motion for new trial, "the petition having been already denied
on February 9, 1994."
Notwithstanding, petitioner on August 8, 1994 filed a "MOTION
TO ADMIT ATTACHED MOTION FOR NEW TRIAL",5 and a
"MANIFESTATION AND SECOND MOTION TO ADMIT" on August
17, 1994.6 The Court thereafter required the Solicitor General to
comment on said motion and manifestation within ten (10) days
from notice, in a Resolution dated September 7, 1994.7
In the Comment filed after three (3) extensions of time were
given by the Court,8 the Solicitor General himself recommends
that petitioner be entitled to a new trial, proceeding from the
same impression that a certain Rodolfo Cuenca's (petitioner's
brother) sworn statement is an admission against interest which
may ultimately exonerate petitioner from criminal liability. The
full text of Mr. Rodolfo Cuenca's "Affidavit"9 reads:
RODOLFO M. CUENCA, Filipino, of legal age, with the residence
at Urdaneta Village, Makati, Metro Manila, after being duly sworn
and (sic) state that:
1. During the years 1967 until February 1983, I was the
President and Chief Executive Officer of Construction
Development Corporation of the Philippines (CDCP).
2. During that period, I controlled an effective majority of the
voting shares of stock of CDCP.
3. Sometime in 1974, upon my initiative, CDCP together with its
affiliated companies, organized a number of wholly-owned
service corporations. One of these was Ultra International
Trading Corporation, whose purpose was to serve and supply
the needs of CDCP and its other subsidiaries with lower value
goods and using Ultra's financial resources.
4. The directors in Ultra Corporation were nominees of CDCP,
and received the instructions directly from me and or Mr. Pedro
Valdez, Chairman of CDCP.
5. From Ultra's inception, my brother, Mr. Edilberto M. Cuenca
was appointed President and Chief Executive Officer. On March,
1979, I instructed Ultra through my brother, Mr. Edilberto
Cuenca to purchase for CDCP various steel materials. These
materials were received by CDCP and are covered by the trust
receipts which are the subject of this case.
6. In 1980, CDCP suffered cashflow problems, and consciously
omitted payment to Ultra for the delivery of the said steel
materials. As a nominee of CDCP, Mr. Edilberto M. Cuenca
merely acted as agent for CDCP. As such, CDCP provided him
with the guarantees needed to persuade China Bank to issue the
said trust receipts. On the basis of such guarantees, along with
informal assurances issued by CDCP to China Bank that the
transactions of Ultra were undertaken for and on behalf of CDCP
and CDCP Mining Corporation, Ultra was able to obtain credit
facilities, among which included the trust receipts subject of this
case.
7. However, Mr. Edilberto M. Cuenca had no power to cause the
payment of said trust receipts because the common Treasurer
and controller of both CDCP and Ultra, Ms. Nora Vinluan, acted
under my control and I did not allow her to make the appropriate
payments.
8. To my knowledge, CDCP has not paid Ultra the amounts
corresponding to the materials covered by the trust receipts
subject of this case.
9. By the time final demand to pay on the trust receipts were
(sic) served in 1984, Mr. Edilberto Cuenca was no longer
president of Ultra Corporation and could not have possibly cause
(sic) Ultra Corporation to pay.
10. I have executed this affidavit in order to accept personal
responsibility for the trust receipts subject of this case and to
exculpate Mr. Edilberto Cuenca of the criminal charges which he
has asked this Honorable Court to review.
11. Accordingly, I also undertake to pay the civil obligations
arising from the subject trust receipts.
(Sgd.)
RODOLFO M. CUENCA
Affiant
And the Solicitor General had this to say:
Ordinarily, it is too late at this stage to ask for a new trial.
However, the sworn statement of Rodolfo Cuenca is a
declaration against his own interests under Section 38, Rule
130, Revised Rules of Court and it casts doubt on the culpability
of his brother Edilberto Cuenca, the petitioner. Hence, the
alleged confession of guilt should be given a hard look by the
Court.
The People is inclined to allow petitioner to establish the
genuineness and due execution of his brother's affidavit in the
interest of justice and fair play.
Under Rule 6.01 of Canon 6 of the Code of Professional
Responsibility, prosecutors who represent the People of the
Philippines in a criminal case are not duty bound to seek
207
conviction of the accused but to see that justice is done. Said
Rule 6.01 of Canon 6 states:
Canon 6 — These canons shall apply to lawyers in government
service in the discharge of their official tasks.
Rule 6.01 — The primary duty of a lawyer engaged in public
prosecution is not to convict but to see that justice is done. The
suppression of facts or the concealment of witnesses capable of
establishing the innocence of the accused is highly reprehensible
and is cause for disciplinary action. (Emphasis supplied.)
The above duty is well founded on the instruction of the U.S.
Supreme Court in Berger v. United States, 295 U.S. 78 (1935)
that prosecutors represent a sovereign "whose obligation to
govern impartially is compelling as its obligation to govern at
all; and whose interest, therefore in a criminal prosecution is not
that it shall win a case, but that justice shall be done (Time to
Rein in the Prosecution, by Atty. Bruce Fein, published on p. 11,
The Lawyers Review, July 31, 1994). (Emphasis supplied.)10
Although in "Goduco v. CA" (14 SCRA 282 [1965]) decided some
twenty (20) years ago, this Court ruled that it is not authorized
to entertain a motion for reconsideration and/or new trial
predicated on allegedly newly discovered evidence the rationale
of which being:
The judgment of the Court of Appeals is conclusive as to the
facts, and cannot be reviewed by the Supreme Court.
Accordingly, in an appeal by certiorari to the Supreme Court,
the latter has no jurisdiction to entertain a motion for new trial
on the ground of newly discovered evidence, for only questions
of fact are involved therein.
the rule now appears to have been relaxed, if not abandoned, in
subsequent cases like "Helmuth, Jr. v. People"11 and "People v.
Amparado".12
In both cases, the Court, opting to brush aside technicalities and
despite the opposition of the Solicitor General, granted new trial
to the convicted accused concerned on the basis of proposed
testimonies or affidavits of persons which the Court considered
as newly discovered and probably sufficient evidence to reverse
the judgment of conviction. Being similarly circumstanced, there
is no nagging reason why herein petitioner should be denied the
same benefit. It becomes all the more plausible under the
circumstances considering that the "People" does not raise any
objection to a new trial, for which reason the Solicitor General
ought to be specially commended for displaying once again such
statesmanlike gesture of impartiality. The Solicitor General's
finest hour, indeed.
WHEREFORE, petitioner's Motion For New Trial is hereby
GRANTED. Let the case be RE-OPENED and REMANDED to the
court of origin for reception of petitioner's evidence.
SO ORDERED.

208
EN BANC
A.C. No. 4018 March 8, 2005
OMAR P. ALI, Complainant,
vs.
ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment1 filed against Atty.
Mosib Ali Bubong for having been found guilty of grave
misconduct while holding the position of Register of Deeds of
Marawi City.
It appears that this disbarment proceeding is an off-shoot of the
administrative case earlier filed by complainant against
respondent. In said case, which was initially investigated by the
Land Registration Authority (LRA), complainant charged
respondent with illegal exaction; indiscriminate issuance of
Transfer Certificate of Title (TCT) No. T-2821 in the names of
Lawan Bauduli Datu, Mona Abdullah,2 Ambobae Bauduli Datu,
Matabae Bauduli Datu, Mooamadali Bauduli Datu, and Amenola
Bauduli Datu; and manipulating the criminal complaint filed
against Hadji Serad Bauduli Datu and others for violation of the
Anti-Squatting Law. It appears from the records that the Baudali
Datus are relatives of respondent.3
The initial inquiry by the LRA was resolved in favor of
respondent. The investigating officer, Enrique Basa, absolved
respondent of all the charges brought against him, thus:
It is crystal clear from the foregoing that complainant not only
failed to prove his case but that he has no case at all against
respondent Mosib Ali Bubong. Wherefore, premises considered,
it is respectfully recommended that the complaint against
respondent be dismissed for lack of merit and evidence.4
The case was then forwarded to the Department of Justice for
review and in a report dated 08 September 1992, then Secretary
of Justice Franklin Drilon exonerated respondent of the charges
of illegal exaction and infidelity in the custody of documents. He,
however, found respondent guilty of grave misconduct for his
imprudent issuance of TCT No. T-2821 and manipulating the
criminal case for violation of the Anti-Squatting Law instituted
against Hadji Serad Bauduli Datu and the latter's co-accused. As
a result of this finding, Secretary Drilon recommended
respondent's dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued
Administrative Order No. 41 adopting in toto the conclusion
reached by Secretary Drilon and ordering respondent's dismissal
from government service. Respondent subsequently questioned
said administrative order before this Court through a petition for
certiorari, mandamus, and prohibition5 claiming that the Office
of the President did not have the authority and jurisdiction to
remove him from office. He also insisted that respondents6 in
that petition violated the laws on security of tenure and that
respondent Reynaldo V. Maulit, then the administrator of the
LRA committed a breach of Civil Service Rules when he
abdicated his authority to resolve the administrative complaint
against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the
petition "for failure on the part of petitioner to sufficiently show
that public respondent committed grave abuse of discretion in
issuing the questioned order."7 Respondent thereafter filed a
motion for reconsideration which was denied with finality in our
Resolution of 15 November 1994.
On the basis of the outcome of the administrative case,
complainant is now before us, seeking the disbarment of
respondent. Complainant claims that it has become obvious that
respondent had "proven himself unfit to be further entrusted
with the duties of an attorney"8 and that he poses a "serious
threat to the integrity of the legal profession."9
In his Comment, respondent maintains that there was nothing
irregular with his issuance of TCT No. T-2821 in the name of the
Bauduli Datus. According to him, both law10 and jurisprudence
support his stance that it was his ministerial duty, as the
Register of Deeds of Marawi City, to act on applications for land
registration on the basis only of the documents presented by the
applicants. In the case of the Bauduli Datus, nothing in the
documents they presented to his office warranted suspicion,
hence, he was duty-bound to issue TCT No. T-2821 in their
favor.
Respondent also insists that he had nothing to do with the
dismissal of criminal complaint for violation of the Anti-Squatting
Law allegedly committed by Hadji Serad Abdullah and the
latter's co-defendants. Respondent explains that his
participation in said case was a result of the two subpoenas
duces tecum issued by the investigating prosecutor who
required him to produce the various land titles involved in said
dispute. He further claims that the dismissal of said criminal case
by the Secretary of Justice was based solely on the evidence
presented by the parties. Complainant's allegation, therefore,
that he influenced the outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995,11 this Court referred
this matter to the Integrated Bar of the Philippines (IBP) for
investigation, report, and recommendation. Acting on this
resolution, the IBP commenced the investigation of this
disbarment suit. On 23 February 1996, Commissioner Victor C.
Fernandez issued the following order relative to the transfer of
venue of this case. The pertinent portion of this order provides:
ORDER
When this case was called for hearing, both complainant and
respondent appeared.
The undersigned Commissioner asked them if they are willing to
have the reception of evidence vis-à-vis this case be done in
Marawi City, Lanao del Sur before the president of the local IBP
Chapter. Both parties agreed. Accordingly, transmit the records
of this case to the Director for Bar Discipline for appropriate
action.12
On 30 March 1996, the IBP Board of Governors passed a
resolution approving Commissioner Fernandez's
recommendation for the transfer of venue of this administrative
case and directed the Western Mindanao Region governor to
designate the local IBP chapter concerned to conduct the
investigation, report, and recommendation.13 The IBP Resolution
states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner
Victor C. Fernandez for the Transfer of Venue of the above-
entitled case and direct the Western Mindanao Region Governor
George C. Jabido to designate the local IBP Chapter concerned
to conduct the investigation, report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino,
Director for Bar Discipline, wrote a letter dated 23 October 1996
addressed to Governor George C. Jabido, President of IBP
Cotabato Chapter requesting the latter to receive the evidence
in this case and to submit his recommendation and
recommendation as directed by the IBP Board of Governors.14
209
In an undated Report and Recommendation, the IBP Cotabato
Chapter15 informed the IBP Commission on Bar Discipline (CBD)
that the investigating panel16 had sent notices to both
complainant and respondent for a series of hearings but
respondent consistently ignored said notices. The IBP Cotabato
Chapter concluded its report by recommending that respondent
be suspended from the practice of law for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998
praying for the transmittal of the records of this case to the
Marawi City-Lanao del Sur Chapter of the IBP pursuant to
Resolution No. XII-96-153 as well as Commissioner Fernandez's
Order dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating
panel of IBP Cotabato Chapter to comment on respondent's
motion.17 Complying with this directive, the panel expressed no
opposition to respondent's motion for the transmittal of the
records of this case to IBP Marawi City.18 On 25 September
1998, Commissioner Fernandez ordered the referral of this case
to IBP Marawi City for the reception of respondent's evidence.19
This order of referral, however, was set aside by the IBP Board
of Governors in its Resolution No. XIII-98-268 issued on 4
December 1998. Said resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C.
Fernandez for the transmittal of the case records of the above-
entitled case to Marawi City, rather he is directed to re-evaluate
the recommendation submitted by Cotabato Chapter and report
the same to the Board of Governors.20
Prior to the issuance of Resolution No. XIII-98-268, respondent
filed on 08 October 1998 a motion praying that the
recommendation of the IBP Cotabato Chapter be stricken from
the records.21 Respondent insists that the investigating panel
constituted by said IBP chapter did not have the authority to
conduct the investigation of this case since IBP Resolution XII-
96-153 and Commissioner Fernandez's Order of 23 February
1996 clearly vested IBP Marawi City with the power to
investigate this case. Moreover, he claims that he was never
notified of any hearing by the investigating panel of IBP
Cotabato Chapter thereby depriving him of his right to due
process.
Complainant opposed22 this motion arguing that respondent is
guilty of laches. According to complainant, the report and
recommendation submitted by IBP Cotabato Chapter expressly
states that respondent was duly notified of the hearings
conducted by the investigating panel yet despite these,
respondent did nothing to defend himself. He also claims that
respondent did not even bother to submit his position paper
when he was directed to do so. Further, as respondent is a
member of IBP Marawi City Chapter, complainant maintains that
the presence of bias in favor of respondent is possible. Finally,
complainant contends that to refer the matter to IBP Marawi City
would only entail a duplication of the process which had already
been completed by IBP Cotabato Chapter.
In an Order dated 15 October 1999,23 Commissioner Fernandez
directed IBP Cotabato Chapter to submit proofs that notices for
the hearings conducted by the investigating panel as well as for
the submission of the position paper were duly received by
respondent. On 21 February 2000, Atty. Jabido, a member of
the IBP Cotabato Chapter investigating panel, furnished
Commissioner Fernandez with a copy of the panel's order dated
4 August 1997.24 Attached to said order was Registry Receipt
No. 3663 issued by the local post office. On the lower portion of
the registry receipt was a handwritten notation reading "Atty.
Mosib A. Bubong."
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro
S. Castillo, Chairman of the Commission on Bar Discipline for
Mindanao, to reevaluate the report and recommendation
submitted by IBP Cotabato Chapter. This directive had the
approval of the IBP Board of Governors through its Resolution
No. XIV-2001-271 issued on 30 June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor
C. Fernandez for the Transfer of Venue of the above-entitled
case and direct the CBD Mindanao to conduct an investigation,
re-evaluation, report and recommendation within sixty (60)
days from receipt of notice.25
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the
death of her father, Omar P. Ali, complainant in this case.
According to her, her father passed away on 12 June 2002 and
that in interest of peace and Islamic brotherhood, she was
requesting the withdrawal of this case.26
Subsequently, respondent filed another motion, this time,
asking the IBP CBD to direct the chairman of the Commission on
Bar Discipline for Mindanao to designate and authorize the IBP
Marawi City-Lanao del Sur Chapter to conduct an investigation
of this case.27 This motion was effectively denied by Atty. Pedro
S. Castillo in an Order dated 19 July 2002.28 According to Atty.
Castillo –
After going over the voluminous records of the case, with special
attention made on the report of the IBP Cotabato City Chapter,
the Complaint and the Counter-Affidavit of respondent, the
undersigned sees no need for any further investigation, to be
able to make a re-evaluation and recommendation on the Report
of the IBP Chapter of Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi
City, Zamboanga del Norte is hereby denied. The undersigned
will submit his Report to the Commission on Bar Discipline, IBP
National Office within ten (10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in
toto the findings and conclusion of IBP Cotabato Chapter
ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision
by the Office of the President in Administrative Case No. 41
dated February 26, 1993, wherein herein respondent was found
guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-
squatting law.
And penalized with dismissal from the service, as Register of
Deeds of Marawi City. In the Comment filed by respondent in
the instant Adminsitrative Case, his defense is good faith in the
issuance of T.C.T. No. T-2821 and a denial of the charge of
manipulating the criminal complaint for violation of the anti-
squatting law, which by the way, was filed against respondent's
relatives. Going over the Decision of the Office of the President
in Administrative Case No. 41, the undersigned finds substantial
evidence were taken into account and fully explained, before the
Decision therein was rendered. In other words, the finding of
Grave Misconduct on the part of respondent by the Office of the
President was fully supported by evidence and as such carries a
very strong weight in considering the professional misconduct of
respondent in the present case.
In the light of the foregoing, the undersigned sees no reason for
amending or disturbing the Report and Recommendation of the
IBP Chapter of South Cotabato.29
In a resolution passed on 19 October 2002, the IBP Board of
Governors adopted and approved, with modification, the afore-
quoted Report and Recommendation of Atty. Castillo. The
modification pertained solely to the period of suspension from
the practice of law which should be imposed on respondent –
whereas Atty. Castillo concurred in the earlier recommendation
210
of IBP Cotabato Chapter for a five-year suspension, the IBP
Board of Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for
Reconsideration with the IBP which the latter denied as by that
time, the matter had already been endorsed to this Court.30
The issue thus posed for this Court's resolution is whether
respondent may be disbarred for grave misconduct committed
while he was in the employ of the government. We resolve this
question in the affirmative.
The Code of Professional Responsibility does not cease to apply
to a lawyer simply because he has joined the government
service. In fact, by the express provision of Canon 6 thereof, the
rules governing the conduct of lawyers "shall apply to lawyers
in government service in the discharge of their official tasks."
Thus, where a lawyer's misconduct as a government official is
of such nature as to affect his qualification as a lawyer or to
show moral delinquency, then he may be disciplined as a
member of the bar on such grounds.31 Although the general rule
is that a lawyer who holds a government office may not be
disciplined as a member of the bar for infractions he committed
as a government official, he may, however, be disciplined as a
lawyer if his misconduct constitutes a violation of his oath a
member of the legal profession.32
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,33
we ordered the disbarment of respondent on the ground of his
dismissal from government service because of grave
misconduct. Quoting the late Chief Justice Fred Ruiz Castro, we
declared –
[A] person takes an oath when he is admitted to the bar which
is designed to impress upon him his responsibilities. He thereby
becomes an "officer of the court" on whose shoulders rests the
grave responsibility of assisting the courts in the proper, fair,
speedy and efficient administration of justice. As an officer of
the court he is subject to a rigid discipline that demands that in
his every exertion the only criterion be that truth and justice
triumph. This discipline is what has given the law profession its
nobility, its prestige, its exalted place. From a lawyer, to
paraphrase Justice Felix Frankfurter, are expected those
qualities of truth-speaking, a high sense of honor, full candor,
intellectual honesty, and the strictest observance of fiduciary
responsibility – all of which, throughout the centuries, have been
compendiously described as moral character.34
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig,
35
Rule 6.02 – A lawyer in the government service shall not use his
public position to promote or advance his private interests, nor
allow the latter to interfere with his public duties.
Respondent's conduct manifestly undermined the people's
confidence in the public office he used to occupy and cast doubt
on the integrity of the legal profession. The ill-conceived use of
his knowledge of the intricacies of the law calls for nothing less
than the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainant's
daughter, requesting for the withdrawal of this case, we cannot
possibly favorably act on the same as proceedings of this nature
cannot be "interrupted or terminated by reason of desistance,
settlement, compromise, restitution, withdrawal of the charges
or failure of the complainant to prosecute the same."37 As we
have previously explained in the case of Irene Rayos-Ombac v.
Atty. Orlando A. Rayos:38
… A case of suspension or disbarment may proceed regardless
of interest or lack of interest of the complainant. What matters
is whether, on the basis of the facts borne out by the record, the
charge of deceit and grossly immoral conduct has been duly
proven. This rule is premised on the nature of disciplinary
proceedings. A proceeding for suspension or disbarment is not
in any sense a civil action where the complainant is a plaintiff
and the respondent lawyer is a defendant. Disciplinary
proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely
for the public welfare. They are undertaken for the purpose of
preserving courts of justice from the official ministration of
persons unfit to practice in them. The attorney is called to
answer to the court for his conduct as an officer of the court.
The complainant or the person who called the attention of the
court to the attorney's alleged misconduct is in no sense a party,
and has generally no interest in the outcome except as all good
citizens may have in the proper administrative of justice.39
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby
DISBARRED and his name is ORDERED STRICKEN from the Roll
of Attorneys. Let a copy of this Decision be entered in the
respondent's record as a member of the Bar, and notice of the
same be served on the Integrated Bar of the Philippines, and on
the Office of the Court Administrator for circulation to all courts
in the country.
SO ORDERED

this Court found sufficient basis to disbar respondent therein for

gross misconduct perpetrated while she was the Officer-in-
Charge of Legal Services of the Commission on Higher
Education. As we had explained in that case –
… [A] lawyer in public office is expected not only to refrain from
any act or omission which might tend to lessen the trust and
confidence of the citizenry in government, she must also uphold
the dignity of the legal profession at all times and observe a high
standard of honesty and fair dealing. Otherwise said, a lawyer
in government service is a keeper of the public faith and is
burdened with high degree of social responsibility, perhaps
higher than her brethren in private practice.36 (Emphasis
supplied)
In the case at bar, respondent's grave misconduct, as
established by the Office of the President and subsequently
affirmed by this Court, deals with his qualification as a lawyer.
By taking advantage of his office as the Register of Deeds of
Marawi City and employing his knowledge of the rules governing
land registration for the benefit of his relatives, respondent had
clearly demonstrated his unfitness not only to perform the
functions of a civil servant but also to retain his membership in
the bar. Rule 6.02 of the Code of Professional Responsibility is
explicit on this matter. It reads:
211
212
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-5-7-SC December 7, 2010
JOVITO S. OLAZO, Complainant,
vs.
JUSTICE DANTE O. TINGA (Ret.), Respondent.
DECISION
BRION, J.:
Before us is the disbarment case against retired Supreme Court
Associate Justice Dante O. Tinga (respondent) filed by Mr. Jovito
S. Olazo (complainant). The respondent is charged of violating
Rule 6.02,1 Rule 6.032 and Rule 1.013 of the Code of Professional
Responsibility for representing conflicting interests.
Factual Background
In March 1990, the complainant filed a sales application covering
a parcel of land situated in Barangay Lower Bicutan in the
Municipality of Taguig. The land (subject land) was previously
part of Fort Andres Bonifacio that was segregated and declared
open for disposition pursuant to Proclamation No. 2476,4 issued
on January 7, 1986, and Proclamation No. 172,5 issued on
October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was
issued by then Executive Secretary Catalino Macaraig, creating
a Committee on Awards whose duty was to study, evaluate, and
make a recommendation on the applications to purchase the
lands declared open for disposition. The Committee on Awards
was headed by the Director of Lands and the respondent was
one of the Committee members, in his official capacity as the
Congressman of Taguig and Pateros (from 1987 to 1998); the
respondent’s district includes the areas covered by the
proclamations.
The First Charge: Violation of Rule 6.02
In the complaint,6 the complainant claimed that the respondent
abused his position as Congressman and as a member of the
Committee on Awards when he unduly interfered with the
complainant’s sales application because of his personal interest
over the subject land. The complainant alleged that the
respondent exerted undue pressure and influence over the
complainant’s father, Miguel P. Olazo, for the latter to contest
the complainant’s sales application and claim the subject land
for himself. The complainant also alleged that the respondent
prevailed upon Miguel Olazo to accept, on various dates, sums
of money as payment of the latter’s alleged rights over the
subject land. The complainant further claimed that the
respondent brokered the transfer of rights of the subject land
between Miguel Olazo and Joseph Jeffrey Rodriguez, who is the
nephew of the respondent’s deceased wife.
As a result of the respondent’s abuse of his official functions, the
complainant’s sales application was denied. The conveyance of
rights to Joseph Jeffrey Rodriguez and his sales application were
subsequently given due course by the Department of
Environment and Natural Resources (DENR).
The Second Charge: Violation of Rule 6.03
The second charge involves another parcel of land within the
proclaimed areas belonging to Manuel Olazo, the complainant’s
brother. The complainant alleged that the respondent persuaded
Miguel Olazo to direct Manuel to convey his rights over the land
to Joseph Jeffrey Rodriguez. As a result of the respondent’s
promptings, the rights to the land were transferred to Joseph
Jeffrey Rodriguez.
In addition, the complainant alleged that in May 1999, the
respondent met with Manuel for the purpose of nullifying the
conveyance of rights over the land to Joseph Jeffrey Rodriguez.
The complainant claimed that the respondent wanted the rights
over the land transferred to one Rolando Olazo, the Barangay
Chairman of Hagonoy, Taguig. The respondent in this regard
executed an "Assurance" where he stated that he was the lawyer
of Ramon Lee and Joseph Jeffrey Rodriguez.
The Third Charge: Violation of Rule 1.01
The complainant alleged that the respondent engaged in
unlawful conduct considering his knowledge that Joseph Jeffrey
Rodriguez was not a qualified beneficiary under Memorandum
No. 119. The complainant averred that Joseph Jeffrey Rodriguez
is not a bona fide resident of the proclaimed areas and does not
qualify for an award. Thus, the approval of his sales application
by the Committee on Awards amounted to a violation of the
objectives of Proclamation No. 172 and Memorandum No. 119.
The complainant also alleged that the respondent violated
Section 7(b)(2) of the Code of Conduct and Ethical Standards
for Public Officials and Employees or Republic Act (R.A.) No.
6713 since he engaged in the practice of law, within the one-
year prohibition period, when he appeared as a lawyer for
Ramon Lee and Joseph Jeffrey Rodriguez before the Committee
on Awards.
In his Comment,7 the respondent claimed that the present
complaint is the third malicious charge filed against him by the
complainant. The first one was submitted before the Judicial and
Bar Council when he was nominated as an Associate Justice of
the Supreme Court; the second complaint is now pending with
the Office of the Ombudsman, for alleged violation of Section
3(e) and (i) of R.A. No. 3019, as amended.
With his own supporting documents, the respondent presented
a different version of the antecedent events.
The respondent asserted that Miguel Olazo owned the rights
over the subject land and he later conveyed these rights to
Joseph Jeffrey Rodriguez. Miguel Olazo’s rights over the subject
land and the transfer of his rights to Joseph Jeffrey Rodriguez
were duly recognized by the Secretary of the DENR before whom
the conflict of rights over the subject land (between Miguel Olazo
and Joseph Jeffrey Rodriguez, on one hand, and the complainant
on the other hand) was brought. In its decision, the DENR found
Joseph Jeffrey Rodriguez a qualified applicant, and his
application over the subject land was given due course. The
respondent emphasized that the DENR decision is now final and
executory. It was affirmed by the Office of the President, by the
Court of Appeals and by the Supreme Court.
The respondent also advanced the following defenses:
(1) He denied the complainant’s allegation that Miguel Olazo told
him (complainant) that the respondent had been orchestrating
to get the subject land. The respondent argued that this
allegation was without corroboration and was debunked by the
affidavits of Miguel Olazo and Francisca Olazo, the complainant’s
sister.
(2) He denied the complainant’s allegation that he offered the
complainant ₱50,000.00 for the subject land and that he (the
respondent) had exerted undue pressure and influence on
Miguel Olazo to claim the rights over the subject land. The
respondent also denied that he had an inordinate interest in the
subject land.
(3) He claimed that there was nothing wrong in signing as a
witness in Miguel Olazo’s affidavit where the latter asserted his
213
rights over the subject land. The affidavit merely attested to the
truth.
(4) He asserted that he and Miguel Olazo were cousins and that
the latter decided to sell his rights over the subject land for the
medical treatment of his heart condition and the illness of his
daughter, Francisca Olazo. The respondent insisted that the
money he extended to them was a form of loan.
(5) The respondent’s participation in the transaction between
Miguel Olazo and Joseph Jeffrey Rodriguez involved the payment
of the loan that the respondent extended to Miguel Olazo.
(6) Manuel’s belated and secondhand allegation in his
Sinumpaang Salaysay, dated January 20, 2000, regarding what
his father told him, cannot prevail over his earlier Sinumpaang
Salaysay with Francisca Olazo, dated August 2, 1997. In the said
Sinumpaang Salaysay, Manuel categorically asserted that his
father Miguel Olazo, not the complainant, was the farmer-
beneficiary. Manuel also expressed his agreement to the
transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in
favor of Joseph Jeffrey Rodriguez, and the withdrawal of his
father’s application to give way to Joseph Jeffrey Rodriguez’s
application.
(7) The complainant’s allegation that the respondent had
pressured and influenced Miguel Olazo to sell the subject land
was not sufficient as it was lacking in specificity and
corroboration. The DENR decision was clear that the
complainant had no rights over the subject land.
The respondent additionally denied violating Rule 1.01 of the
Code of Professional Responsibility. He alleged that during his
third term as Congressman from 1995 to 1997, the conflicting
applications of the complainant, Miguel Olazo and Joseph Jeffrey
Rodriguez were not included in the agenda for deliberation of
the Committee on Awards. Rather, their conflicting claims and
their respective supporting documents were before the Office of
the Regional Director, NCR of the DENR. This office ruled over
the conflicting claims only on August 2, 2000. This ruling
became the basis of the decision of the Secretary of the DENR.
Similarly, the respondent cannot be held liable under Rule 6.02
of the Code of Professional Responsibility since the provision
applies to lawyers in the government service who are allowed
by law to engage in private law practice and to those who,
though prohibited from engaging in the practice of law, have
friends, former associates and relatives who are in the active
practice of law.8 In this regard, the respondent had already
completed his third term in Congress and his stint in the
Committee on Awards when he represented Joseph Jeffrey
Rodriguez on May 24, 1999.
Lastly, the respondent claimed that he cannot be held liable
under Rule 6.03 of the Code of Professional Responsibility since
he did not intervene in the disposition of the conflicting
applications of the complainant and Joseph Jeffrey Rodriguez
because the applications were not submitted to the Committee
on Awards when he was still a member.
The Court’s Ruling
Generally, a lawyer who holds a government office may not be
disciplined as a member of the Bar for misconduct in the
discharge of his duties as a government official.9 He may be
disciplined by this Court as a member of the Bar only when his
misconduct also constitutes a violation of his oath as a lawyer.10
The issue in this case calls for a determination of whether the
respondent’s actions constitute a breach of the standard ethical
conduct – first, while the respondent was still an elective public
official and a member of the Committee on Awards; and second,
when he was no longer a public official, but a private lawyer who
represented a client before the office he was previously
connected with.
After a careful evaluation of the pleadings filed by both parties
and their respective pieces of evidence, we resolve to dismiss
the administrative complaint.
Accountability of a government lawyer in public office
Canon 6 of the Code of Professional Responsibility highlights the
continuing standard of ethical conduct to be observed by
government lawyers in the discharge of their official tasks. In
addition to the standard of conduct laid down under R.A. No.
6713 for government employees, a lawyer in the government
service is obliged to observe the standard of conduct under the
Code of Professional Responsibility.
Since public office is a public trust, the ethical conduct
demanded upon lawyers in the government service is more
exacting than the standards for those in private practice.
Lawyers in the government service are subject to constant
public scrutiny under norms of public accountability. They also
bear the heavy burden of having to put aside their private
interest in favor of the interest of the public; their private
activities should not interfere with the discharge of their official
functions.11
The first charge involves a violation of Rule 6.02 of the Code of
Professional Responsibility. It imposes the following restrictions
in the conduct of a government lawyer:
A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow
the latter to interfere with his public duties.
The above provision prohibits a lawyer from using his or her
public position to: (1) promote private interests; (2) advance
private interests; or (3) allow private interest to interfere with
his or her public duties. We previously held that the restriction
extends to all government lawyers who use their public offices
to promote their private interests.12
In Huyssen v. Gutierrez,13 we defined promotion of private
interest to include soliciting gifts or anything of monetary value
in any transaction requiring the approval of his or her office, or
may be affected by the functions of his or her office. In Ali v.
Bubong,14 we recognized that private interest is not limited to
direct interest, but extends to advancing the interest of
relatives. We also ruled that private interest interferes with
public duty when the respondent uses the office and his or her
knowledge of the intricacies of the law to benefit relatives.15
In Vitriolo v. Dasig,16 we found the act of the respondent (an
official of the Commission on Higher Education) of extorting
money from persons with applications or requests pending
before her office to be a serious breach of Rule 6.02 of the Code
of Professional Responsibility.17 We reached the same conclusion
in Huyssen, where we found the respondent (an employee of the
Bureau of Immigration and Deportation) liable under Rule 6.02
of the Code of Professional Responsibility, based on the evidence
showing that he demanded money from the complainant who
had a pending application for visas before his office.18
Similarly, in Igoy v. Soriano19 we found the respondent (a Court
Attorney of this Court) liable for violating Rule 6.02 of the Code
of Professional Responsibility, after considering the evidence
showing that he demanded and received money from the
complainant who had a pending case before this Court.
Applying these legal precepts to the facts of the case, we find
the absence of any concrete proof that the respondent abused
his position as a Congressman and as a member of the
Committee on Awards in the manner defined under Rule 6.02 of
the Code of Professional Responsibility.
214
First, the records do not clearly show if the complainant’s sales
application was ever brought before the Committee on Awards.
By the complaint’s own account, the complainant filed a sales
application in March 1990 before the Land Management Bureau.
By 1996, the complainant’s sales application was pending before
the Office of the Regional Director, NCR of the DENR due to the
conflicting claims of Miguel Olazo, and, subsequently, of Joseph
Jeffrey Rodriguez. The records show that it was only on August
2, 2000 that the Office of the Regional Director, NCR of the
DENR rendered its decision, or after the term of the respondent’s
elective public office and membership to the Committee on
Awards, which expired in 1997.
These circumstances do not show that the respondent did in any
way promote, advance or use his private interests in the
discharge of his official duties. To repeat, since the sales
application was not brought before the Committee on Awards
when the respondent was still a member, no sufficient basis
exists to conclude that he used his position to obtain personal
benefits. We note in this regard that the denial of the
complainant’s sales application over the subject land was made
by the DENR, not by the Committee on Awards.
Second, the complainant’s allegation that the respondent
"orchestrated" the efforts to get the subject land does not
specify how the orchestration was undertaken. What appears
clear in the records is the uncorroborated Sinumpaang Salaysay
of Miguel Olazo, dated May 25, 2003,20 categorically stating that
the respondent had no interest in the subject land, and neither
was he a contracting party in the transfer of his rights over the
subject land. In the absence of any specific charge, Olazo’s
disclaimer is the nearest relevant statement on the respondent’s
alleged participation, and we find it to be in the respondent’s
favor.
Third, the other documents executed by Miguel Olazo, that the
complainant presented to support his claim that the respondent
exerted undue pressure and influence over his father (namely:
the letter, dated June 22, 1996, to the DENR Regional Director-
NCR;21 the Sinumpaang Salaysay dated July 12, 1996;22 and the
Sinumpaang Salaysay dated July 17, 199623), do not contain any
reference to the alleged pressure or force exerted by the
respondent over Miguel Olazo. The documents merely showed
that the respondent helped Miguel Olazo in having his farm lots
(covered by the proclaimed areas) surveyed. They also showed
that the respondent merely acted as a witness in the
Sinumpaang Salaysay dated July 17, 1996. To our mind, there
are neutral acts that may be rendered by one relative to
another, and do not show how the respondent could have
influenced the decision of Miguel Olazo to contest the
complainant’s sales application. At the same time, we cannot
give any credit to the Sinumpaang Salaysay, dated January 20,
2000, of Manuel. They are not only hearsay but are contrary to
what Miguel Olazo states on the record. We note that Manuel
had no personal knowledge, other than what Miguel Olazo told
him, of the force allegedly exerted by the respondent against
Miguel Olazo.
In turn, the respondent was able to provide a satisfactory
explanation - backed by corroborating evidence - of the nature
of the transaction in which he gave the various sums of money
to Miguel Olazo and Francisca Olazo in the year 1995. In her
affidavits dated May 25, 200324 and July 21, 2010,25 Francisca
Olazo corroborated the respondent’s claim that the sums of
money he extended to her and Miguel Olazo were loans used for
their medical treatment. Miguel Olazo, in his Sinumpaang
Salaysay dated May 25, 2003, asserted that some of the money
borrowed from the respondent was used for his medical
treatment and hospitalization expenses.
The affidavit of Joseph Jeffrey Rodriguez further corroborated
the respondent’s claim that the latter’s involvement was limited
to being paid the loans he gave to Miguel Olazo and Francisca
Olazo. According to Joseph Jeffrey Rodriguez, he and Miguel
Olazo agreed that a portion of the loan would be directly paid by
Joseph Jeffrey Rodriguez to the respondent and the amount paid
would be considered as part of the purchase price of the subject
land.26
It also bears stressing that a facial comparison of the
documentary evidence, specifically the dates when the sums of
money were extended by the respondent – on February 21,
1995, September 2, 1995 and October 17, 1995, and the date
when the Deed of Conveyance27 over the subject land was
executed or on October 25, 1995, showed that the sums of
money were extended prior to the transfer of rights over the
subject land. These pieces of evidence are consistent with the
respondent’s allegation that Miguel Olazo decided to sell his
rights over the subject land to pay the loans he obtained from
the respondent and, also, to finance his continuing medical
treatment.
Private practice of law after separation from public office
As proof that the respondent was engaged in an unauthorized
practice of law after his separation from the government service,
the complainant presented the Sinumpaang Salaysay, dated
January 20, 2000, of Manuel and the document entitled
"Assurance" where the respondent legally represented Ramon
Lee and Joseph Jeffrey Rodriguez. Nevertheless, the foregoing
pieces of evidence fail to persuade us to conclude that there was
a violation of Rule 6.03 of the Code of Professional
Responsibility.
In Cayetano v. Monsod,28 we defined the practice of law as any
activity, in and out of court, that requires the application of law,
legal procedure, knowledge, training and experience. Moreover,
we ruled that to engage in the practice of law is to perform those
acts which are characteristics of the profession; to practice law
is to give notice or render any kind of service, which device or
service requires the use in any degree of legal knowledge or
skill.
Under the circumstances, the foregoing definition should be
correlated with R.A. No. 6713 and Rule 6.03 of the Code of
Professional Responsibility which impose certain restrictions on
government lawyers to engage in private practice after their
separation from the service.
Section 7(b)(2) of R.A. No. 6713 reads:
Section 7. Prohibited Acts and Transactions. — In addition
to acts and
omissions of public officials and employees now prescribed in
the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
xxxx
(b) Outside employment and other activities related thereto. –
Public officials and employees during their incumbency shall not:
xxxx
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such
practice will not conflict or tend to conflict with their official
functions; x x x
These prohibitions shall continue to apply for a period of one (1)
year after resignation, retirement, or separation from public
office, except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be with,
in which case the one-year prohibition shall likewise apply.
215
As a rule, government lawyers are not allowed to engage in the
private practice of their profession during their incumbency.29
By way of exception, a government lawyer can engage in the
practice of his or her profession under the following conditions:
first, the private practice is authorized by the Constitution or by
the law; and second, the practice will not conflict or tend to
conflict with his or her official functions.30 The last paragraph of
Section 7 provides an exception to the exception. In case of
lawyers separated from the government service who are
covered under subparagraph (b) (2) of Section 7 of R.A. No.
6713, a one-year prohibition is imposed to practice law in
connection with any matter before the office he used to be with.
finding, among others, that no reversible error was committed
by the Court of Appeals in its decision.36
All told, considering the serious consequences of the penalty of
disbarment or suspension of a member of the Bar, the burden
rests on the complainant to present clear, convincing and
satisfactory proof for the Court to exercise its disciplinary
powers.37 The respondent generally is under no obligation to
prove his/her defense,38 until the burden shifts to him/her
because of what the complainant has proven. Where no case
has in the first place been proven, nothing has to be rebutted in
defense.39

Rule 6.03 of the Code of Professional Responsibility echoes this With this in mind, we resolve to dismiss the administrative case
restriction and prohibits lawyers, after leaving the government against the respondent for the complainant’s failure to prove by
service, to accept engagement or employment in connection clear and convincing evidence that the former committed
with any matter in which he had intervened while in the said unethical infractions warranting the exercise of the Court’s
service. The keyword in Rule 6.03 of the Code of Professional disciplinary power.
Responsibility is the term "intervene" which we previously WHEREFORE, premises considered, we DISMISS the
interpreted to include an act of a person who has the power to administrative case for violation of Rule 6.02, Rule 6.03 and Rule
influence the proceedings.31 Otherwise stated, to fall within the 1.01 of the Code of Professional Responsibility, filed against
ambit of Rule 6.03 of the Code of Professional Responsibility, retired Supreme Court Associate Justice Dante O. Tinga, for lack
the respondent must have accepted engagement or of merit.
employment in a matter which, by virtue of his public office, he
had previously exercised power to influence the outcome of the SO ORDERED
proceedings.1avvphi1
As the records show, no evidence exists showing that the
respondent previously interfered with the sales application
covering Manuel’s land when the former was still a member of
the Committee on Awards. The complainant, too, failed to
sufficiently establish that the respondent was engaged in the
practice of law. At face value, the legal service rendered by the
respondent was limited only in the preparation of a single
document. In Borja, Sr. v. Sulyap, Inc.,32 we specifically
described private practice of law as one that contemplates a
succession of acts of the same nature habitually or customarily
holding one’s self to the public as a lawyer.
In any event, even granting that respondent’s act fell within the
definition of practice of law, the available pieces of evidence are
insufficient to show that the legal representation was made
before the Committee on Awards, or that the Assurance was
intended to be presented before it. These are matters for the
complainant to prove and we cannot consider any uncertainty in
this regard against the respondent’s favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral
or deceitful conduct. From the above discussion, we already
struck down the complainant’s allegation that respondent
engaged in an unauthorized practice of law when he appeared
as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before
the Committee on Awards.
We find that a similar treatment should be given to the
complainant’s claim that the respondent violated paragraph
4(1)33 of Memorandum No. 119 when he encouraged the sales
application of Joseph Jeffrey Rodriguez despite his knowledge
that his nephew was not a qualified applicant. The matter of
Joseph Jeffrey Rodriguez’s qualifications to apply for a sales
application over lots covered by the proclaimed areas has been
resolved in the affirmative by the Secretary of the DENR in the
decision dated April 3, 2004,34 when the DENR gave due course
to his sales application over the subject land. We are, at this
point, bound by this finding.
As pointed out by the respondent, the DENR decision was
affirmed by the Office of the President, the Court of Appeals35
and, finally, the Court, per our Minute Resolution, dated October
11, 2006, in G.R. No. 173453. In our Resolution, we dismissed
the petition for review on certiorari filed by the complainant after

216
Republic of the Philippines
SUPREME COURT
EN BANC
G.R. Nos. 151809-12. April 12, 2005
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), Petitioners,
vs.
SANDIGANBAYAN (Fifth Division), LUCIO C. TAN,
CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD
P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO
TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG
(represented by TARCIANA C. TAN), FLORENCIO N.
SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE
KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO,
JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA,
WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T.
ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED
LEASING AND FINANCE CORPORATION, ASIA BREWERY,
INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC.,
FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT
CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND
DEVELOPMENT CORP., JEWEL HOLDINGS, INC.,
MANUFACTURING SERVICES AND TRADE CORP.,
MARANAW HOTELS AND RESORT CORP., NORTHERN
TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC.,
SHAREHOLDINGS, INC., SIPALAY TRADING CORP.,
VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY.
ESTELITO P. MENDOZA, Respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with
significance for it concerns on one hand, the efforts of the Bar
to upgrade the ethics of lawyers in government service and on
the other, its effect on the right of government to recruit
competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK)
encountered financial difficulties. GENBANK had extended
considerable financial support to Filcapital Development
Corporation causing it to incur daily overdrawings on its current
account with the Central Bank.1 It was later found by the Central
Bank that GENBANK had approved various loans to directors,
officers, stockholders and related interests totaling ₱172.3
million, of which 59% was classified as doubtful and ₱0.505
million as uncollectible.2 As a bailout, the Central Bank
extended emergency loans to GENBANK which reached a
total of ₱310 million.3 Despite the mega loans, GENBANK
failed to recover from its financial woes. On March 25, 1977, the
Central Bank issued a resolution declaring GENBANK
insolvent and unable to resume business with safety to its
depositors, creditors and the general public, and ordering its
liquidation.4 A public bidding of GENBANK’s assets was
held from March 26 to 28, 1977, wherein the Lucio Tan group
submitted the winning bid.5 Subsequently, former Solicitor
General Estelito P. Mendoza filed a petition with the then
Court of First Instance praying for the assistance and
supervision of the court in GENBANK’s liquidation as mandated
by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos
government. One of the first acts of President Corazon C. Aquino
was to establish the Presidential Commission on Good
Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies.
Pursuant to this mandate, the PCGG, on July 17, 1987, filed with
the Sandiganbayan a complaint for "reversion,
reconveyance, restitution, accounting and damages"
against respondents Lucio Tan, Carmen Khao Tan, Florencio T.
Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee,
Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio
N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee,
Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth
Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin
T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank),
Allied Leasing and Finance Corporation, Asia Brewery, Inc.,
Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco
Corporation, Grandspan Development Corp., Himmel Industries,
Iris Holdings and Development Corp., Jewel Holdings, Inc.,
Manufacturing Services and Trade Corp., Maranaw Hotels and
Resort Corp., Northern Tobacco Redrying Plant, Progressive
Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp., Virgo
Holdings & Development Corp., (collectively referred to herein
as respondents Tan, et al.), then President Ferdinand E. Marcos,
Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don
Ferry and Gregorio Licaros. The case was docketed as Civil
Case No. 0005 of the Second Division of the Sandiganbayan.6
In connection therewith, the PCGG issued several writs of
sequestration on properties allegedly acquired by the above-
named persons by taking advantage of their close relationship
and influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions
for certiorari, prohibition and injunction to nullify, among others,
the writs of sequestration issued by the PCGG.7 After the filing
of the parties’ comments, this Court referred the cases to the
Sandiganbayan for proper disposition. These cases were
docketed as Civil Case Nos. 0096-0099. In all these cases,
respondents Tan, et al. were represented by their counsel,
former Solicitor General Estelito P. Mendoza, who has then
resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify
respondent Mendoza as counsel for respondents Tan, et al. with
the Second Division of the Sandiganbayan in Civil Case Nos.
00058 and 0096-0099.9 The motions alleged that respondent
Mendoza, as then Solicitor General10 and counsel to Central
Bank, "actively intervened" in the liquidation of GENBANK,
which was subsequently acquired by respondents Tan, et al. and
became Allied Banking Corporation. Respondent Mendoza
allegedly "intervened" in the acquisition of GENBANK by
respondents Tan, et al. when, in his capacity as then Solicitor
General, he advised the Central Bank’s officials on the
procedure to bring about GENBANK’s liquidation and appeared
as counsel for the Central Bank in connection with its petition
for assistance in the liquidation of GENBANK which he filed with
the Court of First Instance (now Regional Trial Court) of Manila
and was docketed as Special Proceeding No. 107812. The
motions to disqualify invoked Rule 6.03 of the Code of
Professional Responsibility. Rule 6.03 prohibits former
government lawyers from accepting "engagement or
employment in connection with any matter in which he had
intervened while in said service."
On April 22, 1991 the Second Division of the Sandiganbayan
issued a resolution denying PCGG’s motion to disqualify
respondent Mendoza in Civil Case No. 0005.11 It found that the
PCGG failed to prove the existence of an inconsistency between
respondent Mendoza’s former function as Solicitor General and
his present employment as counsel of the Lucio Tan group. It
noted that respondent Mendoza did not take a position adverse
to that taken on behalf of the Central Bank during his term as
Solicitor General.12 It further ruled that respondent Mendoza’s
appearance as counsel for respondents Tan, et al. was beyond
the one-year prohibited period under Section 7(b) of Republic
Act No. 6713 since he ceased to be Solicitor General in the year
1986. The said section prohibits a former public official or
employee from practicing his profession in connection with any
matter before the office he used to be with within one year from
217
his resignation, retirement or separation from public office.13 The
PCGG did not seek any reconsideration of the ruling.14
It appears that Civil Case Nos. 0096-0099 were transferred
from the Sandiganbayan’s Second Division to the Fifth
Division.15 In its resolution dated July 11, 2001, the Fifth Division
of the Sandiganbayan denied the other PCGG’s motion to
disqualify respondent Mendoza.16 It adopted the resolution of
its Second Division dated April 22, 1991, and observed that
the arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought
reconsideration of the ruling but its motion was denied in its
resolution dated December 5, 2001.17
Hence, the recourse to this Court by the PCGG assailing the
resolutions dated July 11, 2001 and December 5, 2001 of the
Fifth Division of the Sandiganbayan via a petition for
certiorari and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.18 The PCGG alleged that the Fifth Division acted
with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed resolutions contending that:
1) Rule 6.03 of the Code of Professional Responsibility prohibits
a former government lawyer from accepting employment in
connection with any matter in which he intervened; 2) the
prohibition in the Rule is not time-bound; 3) that Central Bank
could not waive the objection to respondent Mendoza’s
appearance on behalf of the PCGG; and 4) the resolution in Civil
Case No. 0005 was interlocutory, thus res judicata does not
apply.19
The petition at bar raises procedural and substantive issues of
law. In view, however, of the import and impact of Rule 6.03 of
the Code of Professional Responsibility to the legal profession
and the government, we shall cut our way and forthwith resolve
the substantive issue.
I Yet, as in the colonial and early post-revolutionary periods,
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. Again, the
prohibition states: "A lawyer shall not, after leaving government
service, accept engagement or employment in connection with
any matter in which he had intervened while in the said
service."
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the
historical lineage of Rule 6.03 of the Code of Professional
Responsibility.
In the seventeenth and eighteenth centuries, ethical
standards for lawyers were pervasive in England and other
parts of Europe. The early statements of standards did not
resemble modern codes of conduct. They were not detailed or
collected in one source but surprisingly were comprehensive for
their time. The principal thrust of the standards was directed
towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any
obligation to the client. The formulations of the litigation duties
were at times intricate, including specific pleading standards, an
obligation to inform the court of falsehoods and a duty to explore
settlement alternatives. Most of the lawyer's other basic duties
-- competency, diligence, loyalty, confidentiality, reasonable
fees and service to the poor -- originated in the litigation
context, but ultimately had broader application to all aspects of
a lawyer's practice.
The forms of lawyer regulation in colonial and early post-
revolutionary America did not differ markedly from those in
England. The colonies and early states used oaths, statutes,
judicial oversight, and procedural rules to govern attorney
behavior. The difference from England was in the pervasiveness
and continuity of such regulation. The standards set in England
varied over time, but the variation in early America was far
greater. The American regulation fluctuated within a single
colony and differed from colony to colony. Many regulations had
the effect of setting some standards of conduct, but the
regulation was sporadic, leaving gaps in the substantive
standards. Only three of the traditional core duties can be fairly
characterized as pervasive in the formal, positive law of the
colonial and post-revolutionary period: the duties of litigation
fairness, competency and reasonable fees.20
The nineteenth century has been termed the "dark ages" of
legal ethics in the United States. By mid-century, American
legal reformers were filling the void in two ways. First, David
Dudley Field, the drafter of the highly influential New York "Field
Code," introduced a new set of uniform standards of conduct for
lawyers. This concise statement of eight statutory duties
became law in several states in the second half of the nineteenth
century. At the same time, legal educators, such as David
Hoffman and George Sharswood, and many other lawyers were
working to flesh out the broad outline of a lawyer's duties. These
reformers wrote about legal ethics in unprecedented detail and
thus brought a new level of understanding to a lawyer's duties.
A number of mid-nineteenth century laws and statutes, other
than the Field Code, governed lawyer behavior. A few forms of
colonial regulations – e.g., the "do no falsehood" oath and the
deceit prohibitions -- persisted in some states. Procedural law
continued to directly, or indirectly, limit an attorney's litigation
behavior. The developing law of agency recognized basic duties
of competence, loyalty and safeguarding of client property.
Evidence law started to recognize with less equivocation the
attorney-client privilege and its underlying theory of
confidentiality. Thus, all of the core duties, with the likely
exception of service to the poor, had some basis in formal law.
these standards were isolated and did not provide a
comprehensive statement of a lawyer's duties. The reformers,
by contrast, were more comprehensive in their discussion of a
lawyer's duties, and they actually ushered a new era in American
legal ethics.21
Toward the end of the nineteenth century, a new form of
ethical standards began to guide lawyers in their practice — the
bar association code of legal ethics. The bar codes were detailed
ethical standards formulated by lawyers for lawyers. They
combined the two primary sources of ethical guidance from the
nineteenth century. Like the academic discourses, the bar
association codes gave detail to the statutory statements of duty
and the oaths of office. Unlike the academic lectures, however,
the bar association codes retained some of the official
imprimatur of the statutes and oaths. Over time, the bar
association codes became extremely popular that states
adopted them as binding rules of law. Critical to the
development of the new codes was the re-emergence of bar
associations themselves. Local bar associations formed
sporadically during the colonial period, but they disbanded by
the early nineteenth century. In the late nineteenth century, bar
associations began to form again, picking up where their colonial
predecessors had left off. Many of the new bar associations,
most notably the Alabama State Bar Association and the
American Bar Association, assumed on the task of drafting
substantive standards of conduct for their members.22
In 1887, Alabama became the first state with a comprehensive
bar association code of ethics. The 1887 Alabama Code of Ethics
was the model for several states’ codes, and it was the
foundation for the American Bar Association's (ABA) 1908
Canons of Ethics.23
In 1917, the Philippine Bar found that the oath and duties of
a lawyer were insufficient to attain the full measure of public
218
respect to which the legal profession was entitled. In that year,
the Philippine Bar Association adopted as its own, Canons 1 to
32 of the ABA Canons of Professional Ethics.24
As early as 1924, some ABA members have questioned the
form and function of the canons. Among their concerns was the
"revolving door" or "the process by which lawyers and others
temporarily enter government service from private life and then
leave it for large fees in private practice, where they can exploit
information, contacts, and influence garnered in government
service."25 These concerns were classified as adverse-interest
conflicts" and "congruent-interest conflicts." "Adverse-
interest conflicts" exist where the matter in which the former
government lawyer represents a client in private practice is
substantially related to a matter that the lawyer dealt with while
employed by the government and the interests of the current
and former are adverse.26 On the other hand, "congruent-
interest representation conflicts" are unique to government
lawyers and apply primarily to former government lawyers.27 For
several years, the ABA attempted to correct and update the
canons through new canons, individual amendments and
interpretative opinions. In 1928, the ABA amended one canon
and added thirteen new canons.28 To deal with problems peculiar
to former government lawyers, Canon 36 was minted which
disqualified them both for "adverse-interest conflicts" and
"congruent-interest representation conflicts."29 The rationale for
disqualification is rooted in a concern that the government
lawyer’s largely discretionary actions would be influenced by the
temptation to take action on behalf of the government client that
later could be to the advantage of parties who might later
become private practice clients.30 Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any
matter upon the merits of which he has previously acted in a
judicial capacity.
A lawyer, having once held public office or having been in
the public employ should not, after his retirement, accept
employment in connection with any matter he has
investigated or passed upon while in such office or
employ.
Over the next thirty years, the ABA continued to amend many
of the canons and added Canons 46 and 47 in 1933 and 1937,
respectively.31
In 1946, the Philippine Bar Association again adopted as its
own Canons 33 to 47 of the ABA Canons of Professional Ethics.32
By the middle of the twentieth century, there was growing
consensus that the ABA Canons needed more meaningful
revision. In 1964, the ABA President-elect Lewis Powell asked
for the creation of a committee to study the "adequacy and
effectiveness" of the ABA Canons. The committee recommended
that the canons needed substantial revision, in part because the
ABA Canons failed to distinguish between "the inspirational and
the proscriptive" and were thus unsuccessful in enforcement.
The legal profession in the United States likewise observed that
Canon 36 of the ABA Canons of Professional Ethics resulted in
unnecessary disqualification of lawyers for negligible
participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it
in the 1969 ABA Model Code of Professional
Responsibility.33 The basic ethical principles in the Code of
Professional Responsibility were supplemented by Disciplinary
Rules that defined minimum rules of conduct to which the lawyer
must adhere.34 In the case of Canon 9, DR 9-101(b)35 became
the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of
Delegates approved the Model Code.36
Despite these amendments, legal practitioners remained
unsatisfied with the results and indefinite standards set forth by
DR 9-101(b) and the Model Code of Professional Responsibility
as a whole. Thus, in August 1983, the ABA adopted new
Model Rules of Professional Responsibility. The Model
Rules used the "restatement format," where the conduct
standards were set-out in rules, with comments following each
rule. The new format was intended to give better guidance and
clarity for enforcement "because the only enforceable standards
were the black letter Rules." The Model Rules eliminated the
broad canons altogether and reduced the emphasis on narrative
discussion, by placing comments after the rules and limiting
comment discussion to the content of the black letter rules. The
Model Rules made a number of substantive improvements
particularly with regard to conflicts of interests.37 In particular,
the ABA did away with Canon 9, citing the hopeless
dependence of the concept of impropriety on the
subjective views of anxious clients as well as the norm’s
indefinite nature.38
In cadence with these changes, the Integrated Bar of the
Philippines (IBP) adopted a proposed Code of
Professional Responsibility in 1980 which it submitted to
this Court for approval. The Code was drafted to reflect the
local customs, traditions, and practices of the bar and to
conform with new realities. On June 21, 1988, this Court
promulgated the Code of Professional Responsibility.39
Rule 6.03 of the Code of Professional Responsibility deals
particularly with former government lawyers, and provides, viz.:
Rule 6.03 – A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any
matter in which he had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the
general structure of paragraph 2, Canon 36 of the Canons of
Professional Ethics but replaced the expansive phrase
"investigated and passed upon" with the word
"intervened." It is, therefore, properly applicable to both
"adverse-interest conflicts" and "congruent-interest
conflicts."
The case at bar does not involve the "adverse interest"
aspect of Rule 6.03. Respondent Mendoza, it is conceded, has
no adverse interest problem when he acted as Solicitor General
in Sp. Proc. No. 107812 and later as counsel of respondents Tan,
et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099
before the Sandiganbayan. Nonetheless, there remains the
issue of whether there exists a "congruent-interest conflict"
sufficient to disqualify respondent Mendoza from representing
respondents Tan, et al.
I.B. The "congruent interest" aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the
meaning of "matter" referred to in the rule and, second, the
metes and bounds of the "intervention" made by the former
government lawyer on the "matter." The American Bar
Association in its Formal Opinion 342, defined "matter" as any
discrete, isolatable act as well as identifiable transaction or
conduct involving a particular situation and specific party, and
not merely an act of drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or
briefing abstract principles of law.
Firstly, it is critical that we pinpoint the "matter" which was
the subject of intervention by respondent Mendoza while he was
the Solicitor General. The PCGG relates the following acts of
respondent Mendoza as constituting the "matter" where he
intervened as a Solicitor General, viz:40
219
The PCGG’s Case for Atty. Mendoza’s Disqualification
The PCGG imputes grave abuse of discretion on the part of the
Sandiganbayan (Fifth Division) in issuing the assailed
Resolutions dated July 11, 2001 and December 5, 2001 denying
the motion to disqualify Atty. Mendoza as counsel for
respondents Tan, et al. The PCGG insists that Atty. Mendoza, as
then Solicitor General, actively intervened in the closure of
GENBANK by advising the Central Bank on how to proceed with
the said bank’s liquidation and even filing the petition for its
liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March
29, 1977 prepared by certain key officials of the Central Bank,
namely, then Senior Deputy Governor Amado R. Brinas, then
Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to
the Governor Carlota P. Valenzuela, then Asistant to the
Governor Arnulfo B. Aurellano and then Director of Department
of Commercial and Savings Bank Antonio T. Castro, Jr., where
they averred that on March 28, 1977, they had a conference
with the Solicitor General (Atty. Mendoza), who advised them
on how to proceed with the liquidation of GENBANK. The
pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the
Solicitor General and he advised that the following procedure
should be taken:
1. Management should submit a memorandum to the Monetary
Board reporting that studies and evaluation had been made
since the last examination of the bank as of August 31, 1976
and it is believed that the bank can not be reorganized or placed
in a condition so that it may be permitted to resume business
with safety to its depositors and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall
order the liquidation of the bank and indicate the manner of its
liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the bank and the
liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of
First Instance reciting the proceedings which had been taken
and praying the assistance of the Court in the liquidation of
Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977
of the Monetary Board where it was shown that Atty. Mendoza
was furnished copies of pertinent documents relating to
GENBANK in order to aid him in filing with the court the petition
for assistance in the bank’s liquidation. The pertinent portion of
the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with
a copy of the subject memorandum of the Director, Department
of Commercial and Savings Bank dated March 29, 1977,
together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March 25,
1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and
Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and
Savings Bank, to the Monetary Board, dated March 24, 1977,
submitting, pursuant to Section 29 of R.A. No. 265, as amended
by P.D. No. 1007, a repot on the state of insolvency of Genbank,
together with its attachments; and
4. Such other documents as may be necessary or needed by the
Solicitor General for his use in then CFI-praying the assistance
of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the "matter" or the act of respondent
Mendoza as Solicitor General involved in the case at bar is
"advising the Central Bank, on how to proceed with the said
bank’s liquidation and even filing the petition for its liquidation
with the CFI of Manila." In fine, the Court should resolve whether
his act of advising the Central Bank on the legal procedure to
liquidate GENBANK is included within the concept of "matter"
under Rule 6.03. The procedure of liquidation is given in
black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. – Whenever, upon
examination by the head of the appropriate supervising or
examining department or his examiners or agents into the
condition of any bank or non-bank financial intermediary
performing quasi-banking functions, it shall be disclosed that the
condition of the same is one of insolvency, or that its
continuance in business would involve probable loss to its
depositors or creditors, it shall be the duty of the department
head concerned forthwith, in writing, to inform the Monetary
Board of the facts, and the Board may, upon finding the
statements of the department head to be true, forbid the
institution to do business in the Philippines and shall designate
an official of the Central Bank or a person of recognized
competence in banking or finance, as receiver to immediately
take charge of its assets and liabilities, as expeditiously as
possible collect and gather all the assets and administer the
same for the benefit of its creditors, exercising all the powers
necessary for these purposes including, but not limited to,
bringing suits and foreclosing mortgages in the name of the
bank or non-bank financial intermediary performing quasi-
banking functions.
...
If the Monetary Board shall determine and confirm within the
said period that the bank or non-bank financial intermediary
performing quasi-banking functions is insolvent or cannot
resume business with safety to its depositors, creditors and the
general public, it shall, if the public interest requires, order its
liquidation, indicate the manner of its liquidation and approve a
liquidation plan. The Central Bank shall, by the Solicitor General,
file a petition in the Court of First Instance reciting the
proceedings which have been taken and praying the assistance
of the court in the liquidation of such institution. The court shall
have jurisdiction in the same proceedings to adjudicate disputed
claims against the bank or non-bank financial intermediary
performing quasi-banking functions and enforce individual
liabilities of the stockholders and do all that is necessary to
preserve the assets of such institution and to implement the
liquidation plan approved by the Monetary Board. The Monetary
Board shall designate an official of the Central Bank, or a person
of recognized competence in banking or finance, as liquidator
who shall take over the functions of the receiver previously
appointed by the Monetary Board under this Section. The
liquidator shall, with all convenient speed, convert the assets of
the banking institution or non-bank financial intermediary
performing quasi-banking functions to money or sell, assign or
otherwise dispose of the same to creditors and other parties for
the purpose of paying the debts of such institution and he may,
in the name of the bank or non-bank financial intermediary
performing quasi-banking functions, institute such actions as
may be necessary in the appropriate court to collect and recover
accounts and assets of such institution.
220
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this Section and the second
paragraph of Section 34 of this Act shall be final and executory,
and can be set aside by the court only if there is convincing proof
that the action is plainly arbitrary and made in bad faith. No
restraining order or injunction shall be issued by the court
enjoining the Central Bank from implementing its actions under
this Section and the second paragraph of Section 34 of this Act,
unless there is convincing proof that the action of the Monetary
Board is plainly arbitrary and made in bad faith and the
petitioner or plaintiff files with the clerk or judge of the court in
which the action is pending a bond executed in favor of the
Central Bank, in an amount to be fixed by the court. The
restraining order or injunction shall be refused or, if granted,
shall be dissolved upon filing by the Central Bank of a bond,
which shall be in the form of cash or Central Bank cashier(s)
check, in an amount twice the amount of the bond of the
petitioner or plaintiff conditioned that it will pay the damages
which the petitioner or plaintiff may suffer by the refusal or the
dissolution of the injunction. The provisions of Rule 58 of the
New Rules of Court insofar as they are applicable and not
inconsistent with the provisions of this Section shall govern the
issuance and dissolution of the restraining order or injunction
contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the
inability of a bank or non-bank financial intermediary performing
quasi-banking functions to pay its liabilities as they fall due in
the usual and ordinary course of business. Provided, however,
That this shall not include the inability to pay of an otherwise
non-insolvent bank or non-bank financial intermediary
performing quasi-banking functions caused by extraordinary
demands induced by financial panic commonly evidenced by a
run on the bank or non-bank financial intermediary performing
quasi-banking functions in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act
or the appointment of a receiver under this Section shall be
vested exclusively with the Monetary Board, the provision of any
law, general or special, to the contrary notwithstanding. (As
amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the
procedure to liquidate GENBANK is not the "matter"
contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as
daylight in stressing that the "drafting, enforcing or
interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law" are acts which do
not fall within the scope of the term "matter" and cannot
disqualify.
Secondly, it can even be conceded for the sake of argument
that the above act of respondent Mendoza falls within the
definition of matter per ABA Formal Opinion No. 342. Be that as
it may, the said act of respondent Mendoza which is the
"matter" involved in Sp. Proc. No. 107812 is entirely
different from the "matter" involved in Civil Case No. 0096.
Again, the plain facts speak for themselves. It is given that
respondent Mendoza had nothing to do with the decision of the
Central Bank to liquidate GENBANK. It is also given that he did
not participate in the sale of GENBANK to Allied Bank. The
"matter" where he got himself involved was in informing
Central Bank on the procedure provided by law to liquidate
GENBANK thru the courts and in filing the necessary petition in
Sp. Proc. No. 107812 in the then Court of First Instance. The
subject "matter" of Sp. Proc. No. 107812, therefore, is
not the same nor is related to but is different from the
subject "matter" in Civil Case No. 0096. Civil Case No. 0096
involves the sequestration of the stocks owned by
respondents Tan, et al., in Allied Bank on the alleged ground
that they are ill-gotten. The case does not involve the liquidation
of GENBANK. Nor does it involve the sale of GENBANK to Allied
Bank. Whether the shares of stock of the reorganized Allied Bank
are ill-gotten is far removed from the issue of the dissolution
and liquidation of GENBANK. GENBANK was liquidated by the
Central Bank due, among others, to the alleged banking
malpractices of its owners and officers. In other words, the
legality of the liquidation of GENBANK is not an issue in the
sequestration cases. Indeed, the jurisdiction of the PCGG does
not include the dissolution and liquidation of banks. It goes
without saying that Code 6.03 of the Code of Professional
Responsibility cannot apply to respondent Mendoza
because his alleged intervention while a Solicitor General
in Sp. Proc. No. 107812 is an intervention on a matter
different from the matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the
"intervention" contemplated by Rule 6.03. "Intervene" means,
viz.:
1: to enter or appear as an irrelevant or extraneous feature or
circumstance . . . 2: to occur, fall, or come in between points of
time or events . . . 3: to come in or between by way of hindrance
or modification: INTERPOSE . . . 4: to occur or lie between two
things (Paris, where the same city lay on both sides of an
intervening river . . .)41
On the other hand, "intervention" is defined as:
1: the act or fact of intervening: INTERPOSITION; 2:
interference that may affect the interests of others.42
There are, therefore, two possible interpretations of the word
"intervene." Under the first interpretation, "intervene"
includes participation in a proceeding even if the intervention is
irrelevant or has no effect or little influence.43 Under the second
interpretation, "intervene" only includes an act of a person
who has the power to influence the subject proceedings.44 We
hold that this second meaning is more appropriate to give to the
word "intervention" under Rule 6.03 of the Code of Professional
Responsibility in light of its history. The evils sought to be
remedied by the Rule do not exist where the government lawyer
does an act which can be considered as innocuous such as "x x
x drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles
of law."
In fine, the intervention cannot be insubstantial and
insignificant. Originally, Canon 36 provided that a former
government lawyer "should not, after his retirement, accept
employment in connection with any matter which he has
investigated or passed upon while in such office or employ."
As aforediscussed, the broad sweep of the phrase "which he has
investigated or passed upon" resulted in unjust disqualification
of former government lawyers. The 1969 Code restricted its
latitude, hence, in DR 9-101(b), the prohibition extended only
to a matter in which the lawyer, while in the government service,
had "substantial responsibility." The 1983 Model Rules
further constricted the reach of the rule. MR 1.11(a) provides
that "a lawyer shall not represent a private client in connection
with a matter in which the lawyer participated personally and
substantially as a public officer or employee."
It is, however, alleged that the intervention of respondent
Mendoza in Sp. Proc. No. 107812 is significant and substantial.
We disagree. For one, the petition in the special proceedings is
an initiatory pleading, hence, it has to be signed by
respondent Mendoza as the then sitting Solicitor General. For
another, the record is arid as to the actual participation of
respondent Mendoza in the subsequent proceedings. Indeed,
the case was in slumberville for a long number of years. None
of the parties pushed for its early termination. Moreover, we
note that the petition filed merely seeks the assistance of the
court in the liquidation of GENBANK. The principal role of the
221
court in this type of proceedings is to assist the Central Bank in
determining claims of creditors against the GENBANK. The
role of the court is not strictly as a court of justice but as an
agent to assist the Central Bank in determining the claims of
creditors. In such a proceeding, the participation of the Office of
the Solicitor General is not that of the usual court litigator
protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility
represents a commendable effort on the part of the IBP to
upgrade the ethics of lawyers in the government service. As
aforestressed, it is a take-off from similar efforts especially by
the ABA which have not been without difficulties. To date, the
legal profession in the United States is still fine tuning its DR 9-
101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of
Professional Responsibility, the Court took account of various
policy considerations to assure that its interpretation and
application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance. Thus,
the rule was not interpreted to cause a chilling effect on
government recruitment of able legal talent. At present, it
is already difficult for government to match compensation
offered by the private sector and it is unlikely that government
will be able to reverse that situation. The observation is not
inaccurate that the only card that the government may play to
recruit lawyers is have them defer present income in return for
the experience and contacts that can later be exchanged for
higher income in private practice.45 Rightly, Judge Kaufman
warned that the sacrifice of entering government service would
be too great for most men to endure should ethical rules prevent
them from engaging in the practice of a technical specialty which
they devoted years in acquiring and cause the firm with which
they become associated to be disqualified.46 Indeed, "to make
government service more difficult to exit can only make it less
appealing to enter."47
In interpreting Rule 6.03, the Court also cast a harsh eye on its
use as a litigation tactic to harass opposing counsel as well
as deprive his client of competent legal representation. The
danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the
District of Columbia has noted "the tactical use of motions to
disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and
embarrass the opponent," and observed that the tactic was "so
prevalent in large civil cases in recent years as to prompt
frequent judicial and academic commentary."48 Even the United
States Supreme Court found no quarrel with the Court of
Appeals’ description of disqualification motions as "a dangerous
game."49 In the case at bar, the new attempt to disqualify
respondent Mendoza is difficult to divine. The disqualification of
respondent Mendoza has long been a dead issue. It was
resuscitated after the lapse of many years and only after PCGG
has lost many legal incidents in the hands of respondent
Mendoza. For a fact, the recycled motion for disqualification in
the case at bar was filed more than four years after the filing
of the petitions for certiorari, prohibition and injunction with the
Supreme Court which were subsequently remanded to the
Sandiganbayan and docketed as Civil Case Nos. 0096-0099.50
At the very least, the circumstances under which the motion to
disqualify in the case at bar were refiled put petitioner’s motive
as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be
caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the
law firm of choice, but probably an individual lawyer in whom
the client has confidence.51 The client with a disqualified lawyer
must start again often without the benefit of the work done by
the latter.52 The effects of this prejudice to the right to choose
an effective counsel cannot be overstated for it can result in
denial of due process.
The Court has to consider also the possible adverse effect
of a truncated reading of the rule on the official
independence of lawyers in the government service.
According to Prof. Morgan: "An individual who has the security
of knowing he or she can find private employment upon leaving
the government is free to work vigorously, challenge official
positions when he or she believes them to be in error, and resist
illegal demands by superiors. An employee who lacks this
assurance of private employment does not enjoy such
freedom."53 He adds: "Any system that affects the right to take
a new job affects the ability to quit the old job and any limit on
the ability to quit inhibits official independence."54 The case at
bar involves the position of Solicitor General, the office
once occupied by respondent Mendoza. It cannot be overly
stressed that the position of Solicitor General should be
endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend
acquittal of the innocent; it is this independence that gives him
the right to refuse to defend officials who violate the trust of
their office. Any undue dimunition of the independence of the
Solicitor General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of
the former government lawyer of the freedom to exercise
his profession. Given the current state of our law, the
disqualification of a former government lawyer may extend to
all members of his law firm.55 Former government lawyers stand
in danger of becoming the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied
by Rule 6.03 of the Code of Professional Responsibility is the
possible appearance of impropriety and loss of public
confidence in government. But as well observed, the accuracy
of gauging public perceptions is a highly speculative exercise at
best56 which can lead to untoward results.57 No less than Judge
Kaufman doubts that the lessening of restrictions as to former
government attorneys will have any detrimental effect on that
free flow of information between the government-client and its
attorneys which the canons seek to protect.58 Notably, the
appearance of impropriety theory has been rejected in
the 1983 ABA Model Rules of Professional Conduct59 and
some courts have abandoned per se disqualification based on
Canons 4 and 9 when an actual conflict of interest exists, and
demand an evaluation of the interests of the defendant,
government, the witnesses in the case, and the public.60
It is also submitted that the Court should apply Rule 6.03 in all
its strictness for it correctly disfavors lawyers who "switch
sides." It is claimed that "switching sides" carries the danger
that former government employee may compromise
confidential official information in the process. But this
concern does not cast a shadow in the case at bar. As afore-
discussed, the act of respondent Mendoza in informing the
Central Bank on the procedure how to liquidate GENBANK is a
different matter from the subject matter of Civil Case No. 0005
which is about the sequestration of the shares of respondents
Tan, et al., in Allied Bank. Consequently, the danger that
confidential official information might be divulged is nil, if not
inexistent. To be sure, there are no inconsistent "sides" to be
bothered about in the case at bar. For there is no question that
in lawyering for respondents Tan, et al., respondent Mendoza is
not working against the interest of Central Bank. On the
contrary, he is indirectly defending the validity of the action of
Central Bank in liquidating GENBANK and selling it later to Allied
Bank. Their interests coincide instead of colliding. It is for
222
this reason that Central Bank offered no objection to the SO ORDERED.
lawyering of respondent Mendoza in Civil Case No. 0005 in
defense of respondents Tan, et al. There is no switching of
sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is
intended to avoid conflict of loyalties, i.e., that a government
employee might be subject to a conflict of loyalties while still in
government service.61 The example given by the proponents of
this argument is that a lawyer who plans to work for the
company that he or she is currently charged with prosecuting
might be tempted to prosecute less vigorously.62 In the
cautionary words of the Association of the Bar Committee in
1960: "The greatest public risks arising from post employment
conduct may well occur during the period of employment
through the dampening of aggressive administration of
government policies."63 Prof. Morgan, however, considers this
concern as "probably excessive."64 He opines "x x x it is hard to
imagine that a private firm would feel secure hiding someone
who had just been disloyal to his or her last client – the
government. Interviews with lawyers consistently confirm that
law firms want the ‘best’ government lawyers – the ones who
were hardest to beat – not the least qualified or least vigorous
advocates."65 But again, this particular concern is a non
factor in the case at bar. There is no charge against
respondent Mendoza that he advised Central Bank on how to
liquidate GENBANK with an eye in later defending respondents
Tan, et al. of Allied Bank. Indeed, he continues defending both
the interests of Central Bank and respondents Tan, et al. in the
above cases.
Likewise, the Court is nudged to consider the need to curtail
what is perceived as the "excessive influence of former
officials" or their "clout."66 Prof. Morgan again warns against
extending this concern too far. He explains the rationale for his
warning, viz: "Much of what appears to be an employee’s
influence may actually be the power or authority of his or her
position, power that evaporates quickly upon departure from
government x x x."67 More, he contends that the concern can be
demeaning to those sitting in government. To quote him
further: "x x x The idea that, present officials make significant
decisions based on friendship rather than on the merit says
more about the present officials than about their former co-
worker friends. It implies a lack of will or talent, or both, in
federal officials that does not seem justified or intended, and it
ignores the possibility that the officials will tend to disfavor their
friends in order to avoid even the appearance of favoritism."68
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among
others, that the congruent interest prong of Rule 6.03 of the
Code of Professional Responsibility should be subject to a
prescriptive period. Mr. Justice Tinga opines that the rule cannot
apply retroactively to respondent Mendoza. Obviously, and
rightly so, they are disquieted by the fact that (1) when
respondent Mendoza was the Solicitor General, Rule 6.03 has
not yet adopted by the IBP and approved by this Court, and (2)
the bid to disqualify respondent Mendoza was made after the
lapse of time whose length cannot, by any standard, qualify as
reasonable. At bottom, the point they make relates to the
unfairness of the rule if applied without any prescriptive period
and retroactively, at that. Their concern is legitimate and
deserves to be initially addressed by the IBP and our Committee
on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions
dated July 11, 2001 and December 5, 2001 of the Fifth Division
of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.

223
224
EN BANC
A.C. No. 6707 March 24, 2006
GISELA HUYSSEN, Complainant,
vs.
ATTY. FRED L. GUTIERREZ, Respondent.
DECISION
PER CURIAM:
This treats of a Complaint1 for Disbarment filed by Gisela
Huyssen against respondent Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still
connected with the Bureau of Immigration and Deportation
(BID), she and her three sons, who are all American citizens,
applied for Philippine Visas under Section 13[g] of the
Immigration Law. Respondent told complainant that in order
that their visa applications will be favorably acted upon by the
BID they needed to deposit a certain sum of money for a period
of one year which could be withdrawn after one year. Believing
that the deposit was indeed required by law, complainant
deposited with respondent on six different occasions from April
1995 to April 1996 the total amount of US$20,000. Respondent
prepared receipts/vouchers as proofs that he received the
amounts deposited by the complainant but refused to give her
copies of official receipts despite her demands. After one year,
complainant demanded from respondent the return of
US$20,000 who assured her that said amount would be
returned. When respondent failed to return the sum deposited,
the World Mission for Jesus (of which complainant was a
member) sent a demand letter to respondent for the immediate
return of the money. In a letter dated 1 March 1999, respondent
promised to release the amount not later than 9 March 1999.
Failing to comply with his promise, the World Mission for Jesus
sent another demand letter. In response thereto, respondent
sent complainant a letter dated 19 March 1999 explaining the
alleged reasons for the delay in the release of deposited amount.
He enclosed two blank checks postdated to 6 April and 20 April
1999 and authorized complainant to fill in the amounts. When
complainant deposited the postdated checks on their due dates,
the same were dishonored because respondent had stopped
payment on the same. Thereafter, respondent, in his letter to
complainant dated 25 April 1999, explained the reasons for
stopping payment on the checks, and gave complainant five
postdated checks with the assurance that said checks would be
honored. Complainant deposited the five postdated checks on
their due dates but they were all dishonored for having been
drawn against insufficient funds or payment thereon was
ordered stopped by respondent. After respondent made several
unfulfilled promises to return the deposited amount,
complainant referred the matter to a lawyer who sent two
demand letters to respondent. The demand letters remained
unheeded.
Thus, a complaint2 for disbarment was filed by complainant in
the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar
Discipline, required3 respondent to submit his answer within 15
days from receipt thereof.
In his Counter-Affidavit dated 2 July 2001,4 respondent denied
the allegations in the complaint claiming that having never
physically received the money mentioned in the complaint, he
could not have appropriated or pocketed the same. He said the
amount was used as payment for services rendered for obtaining
the permanent visas in the Philippines. Respondent explained
thus:
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise
a friend of the complainant, the latter was introduced to me at
my office at the Bureau of Immigration with a big problem
concerning their stay in the Philippines, herself and three sons,
one of which is already of major age while the two others were
still minors then. Their problem was the fact that since they have
been staying in the Philippines for almost ten (10) years as
holders of missionary visas (9G) they could no longer extend
their said status as under the law and related polic[i]es of the
government, missionary visa holders could only remain as such
for ten (10) years after which they could no longer extend their
said status and have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised
them that they better secure a permanent visa under Section 3
of the Philippine Immigration Law otherwise known as Quota
Visa and thereafter, provided them with list of the requirements
in obtaining the said visa, one of which is that the applicant must
have a $40,000 deposited in the bank. I also inform that her son
Marcus Huyssen, who was already of major age, has to have the
same amount of show money separate of her money as he would
be issued separate visa, while her two minor children would be
included as her dependents in her said visa application. I advised
them to get a lawyer (sic), complainant further requested me to
refer to her to a lawyer to work for their application, which I did
and contacted the late Atty. Mendoza, an Immigration lawyer,
to do the job for the complainant and her family.
c) The application was filed, processed and followed-up by the
said Atty. Mendoza until the same was finished and the
corresponding permanent visa were obtained by the
complainant and her family. Her son Marcus Huyssen was given
an independent permanent visa while the other two were made
as dependents of the complainant. In between the processing of
the papers and becoming very close to the complainant, I
became the intermediary between complainant and their
counsel so much that every amount that the latter would request
for whatever purpose was coursed through me which request
were then transmitted to the complainant and every amount of
money given by the complainant to their counsel were coursed
thru me which is the very reason why my signature appears in
the vouchers attached in the complaint-affidavit;
d) That as time goes by, I noticed that the amount appeared to
be huge for services of a lawyer that I myself began to wonder
why and, to satisfy my curiosity, I met Atty. Mendoza and
inquired from him regarding the matter and the following facts
were revealed to me:
1) That what was used by the complainant as her show money
from the bank is not really her money but money of World
Mission for Jesus, which therefore is a serious violation of the
Immigration Law as there was a misrepresentation. This fact
was confirmed later when the said entity sent their demand
letter to the undersigned affiant and which is attached to the
complaint-affidavit;
2) That worst, the same amount used by the complainant, was
the very same amount used by her son Marcus Huyssen, in
obtaining his separate permanent visa. These acts of the
complainant and her son could have been a ground for
deportation and likewise constitute criminal offense under the
Immigration Law and the Revised Penal Code. These could have
been the possible reason why complainant was made to pay for
quite huge amount.
e) That after they have secured their visas, complainant and her
family became very close to undersigned and my family that I
was even invited to their residence several times;
225
f) However after three years, complainant demanded the return
of their money given and surprisingly they want to recover the
same from me. By twist of fate, Atty. Mendoza is no longer
around, he died sometime 1997;
g) That it is unfortunate that the real facts of the matter is now
being hidden and that the amount of money is now being sought
to be recovered from me;
h) That the fact is I signed the vouchers and being a lawyer I
know the consequences of having signed the same and therefore
I had to answer for it and pay. I tried to raised the fund needed
but up to the present my standby loan application has not been
released and was informed that the same would only be
forthcoming second week of August. The same should have been
released last March but was aborted due to prevalent condition.
The amount to be paid, according to the complainant has now
become doubled plus attorney’s fees of P200,000.00.
Complainant submitted her evidence on 4 September 2002 and
April 2003, and filed her Formal Offer of Evidence on 25 August
2003.
On several occasions, the complaint was set for reception of
respondent’s evidence but the scheduled hearings (11 settings)
were all reset at the instance of the respondent who was
allegedly out of the country to attend to his client’s needs.
Reception of respondent’s evidence was scheduled for the last
time on 28 September 2004 and again respondent failed to
appear, despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V.
San Juan submitted her report5 recommending the disbarment
of respondent. She justified her recommendation in this
manner:
At the outset it should be noted that there is no question that
respondent received the amount of US$20,000 from
complainant, as respondent himself admitted that he signed the
vouchers (Annexes A to F of complainant) showing his receipt of
said amount from complainant. Respondent however claims that
he did not appropriate the same for himself but that he delivered
the said amount to a certain Atty. Mendoza. This defense raised
by respondent is untenable considering the documentary
evidence submitted by complainant. On record is the 1 March
1999 letter of respondent addressed to the World Mission for
Jesus (Annex H of Complaint) where he stated thus:
"I really understand your feelings on the delay of the release of
the deposit but I repeat, nobody really intended that the thing
would happen that way. Many events were the causes of the
said delay particularly the death of then Commissioner L.
Verceles, whose sudden death prevented us the needed papers
for the immediate release. It was only from compiling all on the
first week of January this year, that all the said papers were
recovered, hence, the process of the release just started though
some important papers were already finished as early as the last
quarter of last year. We are just going through the normal
standard operating procedure and there is no day since January
that I do not make any follow – ups on the progress of the
same."
and his letter dated 19 March 1999 (Annex L of Complaint)
where he stated thus:
"I am sending you my personal checks to cover the refund of
the amount deposited by your good self in connection with the
procurement of your permanent visa and that of your family. It
might take some more time before the Bureau could release the
refund as some other pertinent papers are being still compiled
are being looked at the files of the late Commissioner Verceles,
who approved your visa and who died of heart attack. Anyway,
I am sure that everything would be fine later as all the
documents needed are already intact. This is just a bureaucratic
delay."
From the above letters, respondent makes it appear that the
US$20,000 was officially deposited with the Bureau of
Immigration and Deportation. However, if this is true, how come
only Petty Cash Vouchers were issued by respondent to
complainant to prove his receipt of the said sum and official
receipts therefore were never issued by the said Bureau? Also,
why would respondent issue his personal checks to cover the
return of the money to complainant if said amount was really
officially deposited with the Bureau of Immigration? All these
actions of respondent point to the inescapable conclusion that
respondent received the money from complainant and
appropriated the same for his personal use. It should also be
noted that respondent has failed to establish that the "late Atty.
Mendoza" referred to in his Counter-Affidavit really exists. There
is not one correspondence from Atty. Mendoza regarding the
visa application of complainant and his family, and complainant
has also testified that she never met this Atty. Mendoza referred
to by respondent.
Considering that respondent was able to perpetrate the fraud by
taking advantage of his position with the Board of Special
Inquiry of the Bureau of Immigration and Deportation, makes it
more reprehensible as it has caused damage to the reputation
and integrity of said office. It is submitted that respondent has
violated Rule 6.02 of Canon 6 of the Code of Professional
Responsibility which reads:
"A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow
the latter to interfere with his public duties."
On 4 November 2004, the IBP Board of Governors approved6 the
Investigating Commissioner’s report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation
of the Investigating Commissioner of the above-entitled case,
herein made part of this Resolution as Annex "A"; and, finding
the recommendation fully supported by the evidence on record
and applicable laws and rules, and considering respondent’s
violation of Rule 6.02 of Canon 6 of the Code of Professional
Responsibility, Atty. Fred L. Gutierrez is hereby DISBARRED
from the practice of law and ordered to return the amount with
legal interest from receipt of the money until payment. This case
shall be referred to the Office of the Ombudsman for prosecution
for violation of Anti-Graft and Corrupt Practices Acts and to the
Department of Justice for appropriate administrative action.
We agree with the IBP Board of Governors that respondent
should be severely sanctioned.
We begin with the veritable fact that lawyers in government
service in the discharge of their official task have more
restrictions than lawyers in private practice. Want of moral
integrity is to be more severely condemned in a lawyer who
holds a responsible public office.7
It is undisputed that respondent admitted8 having received the
US$20,000 from complainant as shown by his signatures in the
petty cash vouchers9 and receipts10 he prepared, on the false
representation that that it was needed in complainant’s
application for visa with the BID. Respondent denied he
misappropriated the said amount and interposed the defense
that he delivered it to a certain Atty. Mendoza who assisted
complainant and children in their application for visa in the
BID.11 Such defense remains unsubstantiated as he failed to
submit evidence on the matter. While he claims that Atty.
Mendoza already died, he did not present the death certificate
of said Atty. Mendoza. Worse, the action of respondent in
shifting the blame to someone who has been naturally silenced
by fate, is not only impudent but downright ignominious. When
226
the integrity of a member of the bar is challenged, it is not
enough that he deny the charges against him; he must meet the
issue and overcome the evidence against him.12 He must show
proof that he still maintains that degree of morality and integrity
which at all times is expected of him. In the case at bar,
respondent clearly fell short of his duty. Records show that even
though he was given the opportunity to answer the charges and
controvert the evidence against him in a formal investigation,
he failed, without any plausible reason, to appear several times
whenever the case was set for reception of his evidence despite
due notice.
The defense of denial proferred by respondent is, thus, not
convincing. It is settled that denial is inherently a weak defense.
To be believed, it must be buttressed by a strong evidence of
non-culpability; otherwise, such denial is purely self-serving and
is with nil evidentiary value.
When respondent issued the postdated checks as his moral
obligation, he indirectly admitted the charge. Such admissions
were also apparent in the following letters of respondent to
complainant:
1) Letter13 dated 01 March 1992, pertinent portion of which
reads:
Be that as it may, may I assure you for the last time that the
said deposit is forthcoming, the latest of which is 09 March 1999.
Should it not be released on said date, I understand to pay the
same to you out of my personal money on said date. No more
reasons and no more alibis. Send somebody here at the office
on that day and the amount would be given to you wether (sic)
from the Bureau or from my own personal money.
2) Letter14 dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the refund of the
amount deposited by your goodself in connection with the
procurement of your permanent visa and that of your family.
It might take some more time before the Bureau could release
the refund as some other pertinent papers are still being
compiled and are being looked at the files of the late
Commissioner Verceles, who approved your visa and who died
of heart attack. Anyway, I am sure that everything would be fine
later as all the documents needed are already intact. This is just
a bureaucratic delay.
xxxx
As you would see, I have to pay you in peso. I have issued you
2 checks, one dated April 6, 1999 and the other one dated April
20, 1999. I leave the amount vacant because I would want you
to fill them up on their due dates the peso equivalent to $10,000
respectively. This is to be sure that the peso equivalent of your
P20,000 would be well exchanged. I have postdated them to
enable me to raise some more pesos to cover the whole amount
but don’t worry as the Lord had already provided me the means.
3) Letter15 dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles. You are aware
that I have done my very best for the early return of your money
but the return is becoming bleak as I was informed that there
are still papers lacking. When I stopped the payment of the
checks I issued, I was of the impression that everything is fine,
but it is not. I guess it is time for me to accept the fact that I
really have to personally return the money out of my own. The
issue should stop at my end. This is the truth that I must face.
It may hurt me financially but it would set me free from worries
and anxieties.
I have arranged for a loan from money lenders and was able to
secure one last Saturday the releases of which are on the
following:
May 4, 1999- 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
June 4, 1999-200,000
I have given my property (lot situated in the province) as my
collateral.
I am therefore putting an end to this trouble. I am issuing four
checks which I assure you will be sufficiently funded on their due
dates by reason of my aforestated loans. Just bear with me for
the last time, if any of these checks, is returned, don’t call me
anymore. Just file the necessary action against me, I just had
to put an end to this matter and look forward. x x x
4) Letter16 dated 12 May 1999, which reads:
The other day I deposited the amount of P289,000 to the bank
to cover the first check I issued. In fact I stopped all payments
to all other checks that are becoming due to some of my
creditors to give preference to the check I issued to you.
This morning when I went to the Bank, I learned that the bank
instead of returning the other checks I requested for stop
payment - instead honored them and mistakenly returned your
check. This was a very big surprise to me and discouragement
for I know it would really upset you.
In view of this I thought of sending you the amount of P200,000
in cash which I initially plan to withdraw from the Bank.
However, I could not entrust the same amount to the bearer nor
can I bring the same to your place considering that its quite a
big amount. I am just sending a check for you to immediately
deposit today and I was assured by the bank that it would be
honored this time.
Normally, this is not the actuation of one who is falsely accused
of appropriating the money of another. As correctly observed by
the Investigating Commissioner, respondent would not have
issued his personal checks if said amount were officially
deposited with the BID. This is an admission of misconduct.
Respondent’s act of asking money from complainant in
consideration of the latter’s pending application for visas is
violative of Rule 1.0117 of the Code of Professional
Responsibility, which prohibits members of the Bar from
engaging or participating in any unlawful, dishonest, or deceitful
acts. Moreover, said acts constitute a breach of Rule 6.0218 of
the Code which bars lawyers in government service from
promoting their private interest. Promotion of private interest
includes soliciting gifts or anything of monetary value in any
transaction requiring the approval of his office or which may be
affected by the functions of his office.19 Respondent’s conduct in
office betrays the integrity and good moral character required
from all lawyers, especially from one occupying a high public
office. A lawyer in public office is expected not only to refrain
from any act or omission which might tend to lessen the trust
and confidence of the citizenry in government; he must also
uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing. Otherwise
said, a lawyer in government service is a keeper of the public
faith and is burdened with high degree of social responsibility,
perhaps higher than his brethren in private practice.
In a desperate attempt to put up a smoke or to camouflage his
misdeed, he went on committing another by issuing several
worthless checks, thereby compounding his case.
In a recent case, we have held that the issuance of worthless
checks constitutes gross misconduct,20 as the effect "transcends
the private interests of the parties directly involved in the
transaction and touches the interests of the community at large.
The mischief it creates is not only a wrong to the payee or
227
holder, but also an injury to the public since the circulation of Investigation in the act of receiving and counting money
valueless commercial papers can very well pollute the channels extorted from a certain person.
of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest. Respondent’s acts constitute gross misconduct; and consistent
Thus, paraphrasing Black’s definition, a drawer who issues an with the need to maintain the high standards of the Bar and thus
unfunded check deliberately reneges on his private duties he preserve the faith of the public in the legal profession,
owes his fellow men or society in a manner contrary to accepted respondent deserves the ultimate penalty of expulsion from the
and customary rule of right and duty, justice, honesty or good esteemed brotherhood of lawyers.30
morals."21 WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from
Consequently, we have held that the act of a person in issuing the practice of law and ordered to return the amount he received
a check knowing at the time of the issuance that he or she does from the complainant with legal interest from his receipt of the
not have sufficient funds in, or credit with, the drawee bank for money until payment. This case shall be referred to the Office
the payment of the check in full upon its presentment, is also a of the Ombudsman for criminal prosecution for violation of Anti-
manifestation of moral turpitude.22 Graft and Corrupt Practices Acts and to the Department of
Justice for appropriate administrative action. Let copies of this
Respondent’s acts are more despicable. Not only did he Decision be furnished the Bar Confidant to be spread on the
misappropriate the money of complainant; worse, he had the records of the respondent; the Integrated Bar of the Philippines
gall to prepare receipts with the letterhead of the BID and issued for distribution to all its chapters; and the Office of the Court
checks to cover up his misdeeds. Clearly, he does not deserve Administrator for dissemination to all courts throughout the
to continue, being a member of the bar. country.
Time and again, we have declared that the practice of law is a SO ORDERED.
noble profession. It is a special privilege bestowed only upon
those who are competent intellectually, academically and
morally. A lawyer must at all times conduct himself, especially
in his dealings with his clients and the public at large, with
honesty and integrity in a manner beyond reproach. He must
faithfully perform his duties to society, to the bar, to the courts
and to his clients. A violation of the high standards of the legal
profession subjects the lawyer to administrative sanctions which
includes suspension and disbarment.23 More importantly,
possession of good moral character must be continuous as a
requirement to the enjoyment of the privilege of law practice;
otherwise, the loss thereof is a ground for the revocation of such
privilege.24
Indeed, the primary objective of administrative cases against
lawyers is not only to punish and discipline the erring individual
lawyers but also to safeguard the administration of justice by
protecting the courts and the public from the misconduct of
lawyers, and to remove from the legal profession persons whose
utter disregard of their lawyer’s oath have proven them unfit to
continue discharging the trust reposed in them as members of
the bar.25 These pronouncement gain practical significance in
the case at bar considering that respondent was a former
member of the Board of Special Inquiry of the BID. It bears
stressing also that government lawyers who are public servants
owe fidelity to the public service, a public trust. As such,
government lawyers should be more sensitive to their
professional obligations as their disreputable conduct is more
likely to be magnified in the public eye.26
As a lawyer, who was also a public officer, respondent miserably
failed to cope with the strict demands and high standards of the
legal profession.
Section 27, Rule 138 of the Revised Rules of Court mandates
that a lawyer may be disbarred or suspended by this Court for
any of the following acts: (1) deceit; (2) malpractice; (3) gross
misconduct in office; (4) grossly immoral conduct; (5)
conviction of a crime involving moral turpitude ; (6) violation of
the lawyer’s oath; (7) willful disobedience of any lawful order of
a superior court; and (8) willfully appearing as an attorney for a
party without authority to do so.27
In Atty. Vitriolo v. Atty. Dasig,28 we ordered the disbarment of a
lawyer who, during her tenure as OIC, Legal Services,
Commission on Higher Education, demanded sums of money as
consideration for the approval of applications and requests
awaiting action by her office. In Lim v. Barcelona,29 we also
disbarred a senior lawyer of the National Labor Relations
Commission, who was caught by the National Bureau of

228
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 3701 March 28, 1995
PHILIPPINE NATIONAL BANK, complainant,
vs.
ATTY. TELESFORO S. CEDO, respondent.
RESOLUTION
BIDIN, J.:
In a verified letter-complaint dated August 15, 1991,
complainant Philippine National Bank charged respondent Atty.
Telesforo S. Cedo, former Asst. Vice-President of the Asset
Management Group of complainant bank with violation of Canon
6, Rule 6.03 of the Code of Professional Responsibility, thus:
A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in
which he had intervened while in said service.
by appearing as counsel for individuals who had transactions
with complainant bank in which respondent during his
employment with aforesaid bank, had intervened.
Complainant averred that while respondent was still in its
employ, he participated in arranging the sale of steel sheets
(denominated as Lots 54-M and 55-M) in favor of Milagros Ong
Siy for P200,000. He even "noted" the gate passes issued by his
subordinate, Mr. Emmanuel Elefan, in favor of Mrs. Ong Siy
authorizing the pull-out of the steel sheets from the DMC Man
Division Compound. When a civil action arose out of this
transaction between Mrs. Ong Siy and complainant bank before
the Regional Trial Court of Makati, Branch 146, respondent who
had since left the employ of complainant bank, appeared as one
of the counsels of Mrs. Ong Siy.
Similarly, when the same transaction became the subject of an
administrative case filed by complainant bank against his former
subordinate Emmanuel Elefan, for grave misconduct and
dishonesty, respondent appeared as counsel for Elefan only to
be later disqualified by the Civil Service Commission.
Moreover, while respondent was still the Asst. Vice President of
complainant’s Asset Management Group, he intervened in the
handling of the loan account of the spouses Ponciano and
Eufemia Almeda with complainant bank by writing demand
letters to the couple. When a civil action ensued between
complainant bank and the Almeda spouses as a result of this
loan account, the latter were represented by the law firm "Cedo,
Ferrer, Maynigo & Associates" of which respondent is one of the
Senior Partners.
In his Comment on the complaint, respondent admitted that he
appeared as counsel for Mrs. Ong Siy but only with respect to
the execution pending appeal of the RTC decision. He alleged
that he did not participate in the litigation of the case before the
trial court. With respect to the case of the Almeda spouses,
respondent alleged that he never appeared as counsel for them.
He contended that while the law firm "Cedo Ferrer, Maynigo &
Associates" is designated as counsel of record, the case is
actually handled only by Atty. Pedro Ferrer. Respondent averred
that he did not enter into a general partnership with Atty. Pedro
Ferrer nor with the other lawyers named therein. They are only
using the aforesaid name to designate a law firm maintained by
lawyers, who although not partners, maintain one office as well
as one clerical and supporting staff. Each one of them handles
their own cases independently and individually receives the
revenues therefrom which are not shared among them.
In the resolution of this Court dated January 27, 1992, this case
was referred to the Integrated Bar of the Philippines (IBP), for
investigation, report and recommendation.
During the investigation conducted by the IBP, it was discovered
that respondent was previously fined by this Court in the amount
of P1,000.00 in connection with G.R. No. 94456 entitled
"Milagros Ong Siy vs. Hon. Salvador Tensuan, et al." for forum
shopping, where respondent appeared as counsel for petitioner
Milagros Ong Siy "through the law firm of Cedo Ferrer Maynigo
and Associates."
The IBP further found that the charges herein against
respondent were fully substantiated. Respondent's averment
that the law firm handling the case of the Almeda spouses is not
a partnership deserves scant consideration in the light of the
attestation of complainant's counsel, Atty. Pedro Singson, that
in one of the hearings of the Almeda spouses' case, respondent
attended the same with his partner Atty. Ferrer, and although
he did not enter his appearance, he was practically dictating to
Atty. Ferrer what to say and argue before the court.
Furthermore, during the hearing of the application for a writ of
injunction in the same case, respondent impliedly admitted
being the partner of Atty. Ferrer, when it was made of record
that respondent was working in the same office as Atty. Ferrer.
Moreover, the IBP noted that assuming the alleged set-up of the
firm is true, it is in itself a violation of the Code of Professional
Responsibility (Rule 15.02) since the client’s secrets and
confidential records and information are exposed to the other
lawyers and staff members at all times.
From the foregoing, the IBP found a deliberate intent on the part
of respondent to devise ways and means to attract as clients
former borrowers of complainant bank since he was in the best
position to see the legal weaknesses of his former employer, a
convincing factor for the said clients to seek his professional
service. In sum, the IBP saw a deliberate sacrifice by respondent
of his ethics in consideration of the money he expected to earn.
The IBP thus recommended the suspension of respondent from
the practice of law for 3 years.
The records show that after the Board of Governors of the IBP
had, on October 4, 1994, submitted to this Court its Report and
recommendation in this case, respondent filed a Motion for
Reconsideration dated October 25, 1994 of the recommendation
contained in the said Report with the IBP Board of Governors.
On December 12, 1994, respondent also filed another "Motion
to Set Hearing" before this Court, the aforesaid Motion for
Reconsideration. In resolving this case, the Court took into
consideration the aforesaid pleadings.
In addition to the findings of the IBP, this Court finds this
occasion appropriate to emphasize the paramount importance
of avoiding the representation of conflicting interests. In the
similar case of Pasay Law and Conscience Union, Inc. vs. Paz,
(95 SCRA 24 [1980]) where a former Legal Officer and Legal
Prosecutor of PARGO who participated in the investigation of the
Anti-Graft case against Mayor Pablo Cuneta later on acted as
counsel for the said Mayor in the same anti-graft case, this
Court, citing Nombrado vs. Hernandez (26 SCRA 13 119681)
ruled:
The Solicitor General is of the opinion, and we find no reason to
disagree with him, that even if respondent did not use against
his client any information or evidence acquired by him as
counsel it cannot be denied that he did become privy to
229
information regarding the ownership of the parcel of land which
was later litigated in the forcible entry case, for it was the
dispute over the land that triggered the mauling incident which
gave rise to the criminal action for physical injuries. This Court's
remarks in Hilado vs. David, 84 Phil. 571, are apropos:
"Communications between attorney and client are, in a great
number of litigations, a complicated affair, consisting of
entangled relevant and irrelevant, secret and well-known facts.
In the complexity of what is said in the course of dealings
between an attorney and client, inquiry of the nature suggested
would lead to the revelation, in advance of the trial, of other
matters that might only further prejudice the complainant's
cause."
Whatever may be said as to whether or not respondent utilized
against his former client information given to him in a
professional capacity, the mere fact of their previous
relationship should have precluded him from appearing as
counsel for the other side in the forcible entry case. In the case
of Hilado vs. David, supra, this Tribunal further said:
Hence the necessity of setting the existence of the bare
relationship of attorney and client as the yardstick for testing
incompatibility of interests. This stern rule is designed not alone
to prevent the dishonest practitioner from fraudulent conduct,
but as well to protect the honest lawyer from unfounded
suspicion of unprofessional practice. . . . It is founded on
principles of public policy, of good taste. As has been said in
another case, the question is not necessarily one of the rights of
the parties, but as to whether the attorney has adhered to
proper professional standard. With these thoughts in mind, it
behooves attorney, like Caesar's wife, not only to keep inviolate
the client's confidence, but also to avoid the appearance of
treachery and double dealing. Only thus can litigants. be
encouraged to entrust their secrets to their attorneys which is
of paramount importance in the administration of justice.
The foregoing disquisition on conflicting interest applies with
equal force and effect to respondent in the case at bar. Having
been an executive of complainant bank, respondent now seeks
to litigate as counsel for the opposite side, a case against his
former employer involving a transaction which he formerly
handled while still an employee of complainant, in violation of
Canon 6 of the Canons of Professional Ethics on adverse
influence and conflicting interests, to wit:
It is unprofessional to represent conflicting interests, except by
express conflicting consent of all concerned given after a full
disclosure of the facts. Within the meaning of this canon, a
lawyer represents conflicting interest when, in behalf on one
client, it is his duty to contend for that which duty to another
client requires him to oppose.
ACCORDINGLY, this Court resolves to SUSPEND respondent
ATTY. TELESFORO S. CEDO from the practice of law for THREE
(3) YEARS, effective immediately.
Let copies of this resolution be furnished the Integrated Bar of
the Philippines and all courts in Metro Manila.
SO ORDERED.

230