RULE 138 beginning of the examination.
If not embraced within section 3 and 4 of
Attorneys and Admission to Bar
Section 1. Who may practice law. — Any person heretofore duly
admitted as a member of the bar, or hereafter admitted as such in
accordance with the provisions of this rule, and who is in good and
regular standing, is entitled to practice law.
Section 2. Requirements for all applicants for admission to the bar. —
Every applicant for admission as a member of the bar must be a citizen
of the Philippines, at least twenty-one years of age, of good moral
character, and resident of the Philippines; and must produce before the
Supreme Court satisfactory evidence of good moral character, and that
no charges against him, involving moral turpitude, have been filed or
are pending in any court in the Philippines.
Section 3. Requirements for lawyers who are citizens of the United
States of America. — Citizens of the United States of America who,
before July 4, 1946, were duly licensed members of the Philippine Bar,
in active practice in the courts of the Philippines and in good and
regular standing as such may, upon satisfactory proof of those facts
before the Supreme Court, be allowed to continue such practice after
taking the following oath of office:
I . . . . . . . . . . . . . . . . . . . . . . . . . . ., having been permitted to
continue in the practice of law in the Philippines, do solemnly
swear that I recognize the supreme authority of the Republic
of the Philippines; I will support its Constitution and obey the
laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood, nor consent to the
doing of any in court; I will not wittingly or willingly promote or
sue any groundless, false or unlawful suit, nor give aid nor
consent to the same; I will delay no man for money or
malice, and will conduct myself as a lawyer according to the
best of may knowledge and discretion with all good fidelity as
well as to the courts as to my clients; and I impose upon
myself this voluntary obligation without any mental
reservation or purpose of evasion. So help me God.
Section 4. Requirements for applicants from other jurisdictions. —
Applicants for admission who, being Filipino citizens, are enrolled
attorneys in good standing in the Supreme Court of the United States
or in any circuit court of appeals or district court therein, or in the
highest court of any State or Territory of the United States, and who
can show by satisfactory certificates that they have practiced at least
five years in any of said courts, that such practice began before July 4,
1946, and that they have never been suspended or disbarred, may, in
the discretion of the Court, be admitted without examination.
Section 5. Additional requirements for other applicants. — All
applicants for admission other than those referred to in the two
preceding section shall, before being admitted to the examination,
satisfactorily show that they have regularly studied law for four years,
and successfully completed all prescribed courses, in a law school or
university, officially approved and recognized by the Secretary of
Education. The affidavit of the candidate, accompanied by a certificate
from the university or school of law, shall be filed as evidence of such
facts, and further evidence may be required by the court.
No applicant shall be admitted to the bar examinations unless he has
satisfactorily completed the following courses in a law school or
university duly recognized by the government: civil law, commercial
law, remedial law, criminal law, public and private international law,
political law, labor and social legislation, medical jurisprudence,
taxation and legal ethics.
Section 6. Pre-Law. — No applicant for admission to the bar
examination shall be admitted unless he presents a certificate that he
has satisfied the Secretary of Education that, before he began the
study of law, he had pursued and satisfactorily completed in an
authorized and recognized university or college, requiring for
admission thereto the completion of a four-year high school course, the
course of study prescribed therein for a bachelor's degree in arts or
sciences with any of the following subjects as major or field of
concentration: political science, logic, english, spanish, history and
economics.
Section 7. Time for filing proof of qualifications. — All applicants for
admission shall file with the clerk of the Supreme Court the evidence
required by section 2 of this rule at least fifteen (15) days before the
this rule they shall also file within the same period the affidavit and
certificate required by section 5, and if embraced within sections 3 and
4 they shall exhibit a license evidencing the fact of their admission to
practice, satisfactory evidence that the same has not been revoked,
and certificates as to their professional standing. Applicants shall also
file at the same time their own affidavits as to their age, residence, and
citizenship.
Section 8. Notice of Applications. — Notice of applications for
admission shall be published by the clerk of the Supreme Court in
newspapers published in Pilipino, English and Spanish, for at least ten
(10) days before the beginning of the examination.
Section 9. Examination; subjects. — Applicants, not otherwise
provided for in sections 3 and 4 of this rule, shall be subjected to
examinations in the following subjects: Civil Law; Labor and Social
Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional
Law, Public Corporations, and Public Officers); International Law
(Private and Public); Taxation; Remedial Law (Civil Procedure,
Criminal Procedure, and Evidence); Legal Ethics and Practical
Exercises (in Pleadings and Conveyancing).
Section 10. Bar examination, by questions and answers, and in
writing. — Persons taking the examination shall not bring papers,
books or notes into the examination rooms. The questions shall be the
same for all examinees and a copy thereof, in English or Spanish, shall
be given to each examinee. Examinees shall answer the questions
personally without help from anyone.
Upon verified application made by an examinee stating that his
penmanship is so poor that it will be difficult to read his answers
without much loss of time., the Supreme Court may allow such
examinee to use a typewriter in answering the questions. Only
noiseless typewriters shall be allowed to be used.
The committee of bar examiner shall take such precautions as are
necessary to prevent the substitution of papers or commission of other
frauds. Examinees shall not place their names on the examination
papers. No oral examination shall be given.
Section 11. Annual examination. — Examinations for admission to the
bar of the Philippines shall take place annually in the City of Manila.
They shall be held in four days to be disignated by the chairman of the
committee on bar examiners. The subjects shall be distributed as
follows: First day: Political and International Law (morning) and Labor
and Social Legislation (afternoon); Second day: Civil Law (morning)
and Taxation (afternoon); Third day: Mercantile Law (morning) and
Criminal Law (afternoon); Fourth day: Remedial Law (morning) and
legal Ethics and Practical Exercises (afternoon).
Section 12. Committee of examiners. — Examinations shall be
conducted by a committee of bar examiners to be appointed by the
Supreme Court. This committee shall be composed of a Justice of the
Supreme Court, who shall act as chairman, and who shall be
designated by the court to serve for one year, and eight members of
the bar of the Philippines, who shall hold office for a period of one year.
The names of the members of this committee shall be published in
each volume of the official reports.
Section 13. Disciplinary measures. — No candidate shall endeavor to
influence any member of the committee, and during examination the
candidates shall not communicate with each other nor shall they give
or receive any assistance. The candidate who violates this provisions,
or any other provision of this rule, shall be barred from the
examination, and the same to count as a failure against him, and
further disciplinary action, including permanent disqualification, may be
taken in the discretion of the court.
Section 14. Passing average. — In order that a candidate may be
deemed to have passed his examinations successfully, he must have
obtained a general average of 75 per cent in all subjects, without falling
below 50 per cent in any subjects. In determining the average, the
subjects in the examination shall be given the following relative
weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per
cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent: Political
and International Law, 15 per cent; Taxation, 10 per cent; Remedial
Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.
Section 15. Report of the committee; filing of examination papers. —
Not later than February 15th after the examination, or as soon
thereafter as may be practicable, the committee shall file its report on
the result of such examination. The examination papers and notes of
the committee shall be filed with the clerk and may there be examined
by the parties in interest, after the court has approved the report.
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Section 16. Failing candidates to take review course. — Candidates
who have failed the bar examinations for three times shall be
disqualified from taking another examination unless they show the
satisfaction of the court that they have enrolled in and passed regular
fourth year review classes as well as attended a pre-bar review course
in a recognized law school.
The professors of the individual review subjects attended by the
candidates under this rule shall certify under oath that the candidates
have regularly attended classes and passed the subjects under the
same conditions as ordinary students and the ratings obtained by them
in the particular subject.
Section 17. Admission and oath of successful applicants. — An
applicant who has passed the required examination, or has been
otherwise found to be entitled to admission to the bar, shall take and
subscribe before the Supreme Court the corresponding oath of office.
Section 18. Certificate. — The supreme Court shall thereupon admit
the applicant as a member of the bar for all the courts of the
Philippines, and shall direct an order to be entered to that effect upon
its records, and that a certificate of such record be given to him by the
clerk of court, which certificate shall be his authority to practice.
Section 19. Attorney's roll. — The clerk of the Supreme Court shall
kept a roll of all attorneys admitted to practice, which roll shall be
signed by the person admitted when he receives his certificate.
Section 20. Duties of attorneys. — It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines
and to support the Constitution and obey the laws of the
Philippines.
(b) To observe and maintain the respect due to the courts of
justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only
as appear to him to be just, and such defenses only as he
believes to be honestly debatable under the law.
(d) To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth
and honor, and never seek to mislead the judge or any
judicial officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept
no compensation in connection with his client's business
except from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance
no fact prejudicial to the honor or reputation of a party or
witness, unless required by the justice of the cause with
which he is charged;
(g) Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's
cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair
and honorable means, regardless of his personal opinion as
to the guilt of the accused, to present every defense that the
law permits, to the end that no person may be deprived of
life or liberty, but by due process of law.
Section 21. Authority of attorney to appear. — an attorney is
presumed to be properly authorized to represent any cause in which he
appears, and no written power of attorney is required to authorize him
to appear in court for his client, but the presiding judge may, on motion
of either party and on reasonable grounds therefor being shown,
require any attorney who assumes the right to appear in a case to
produce or prove the authority under which he appears, and to
disclose, whenever pertinent to any issue, the name of the person who
employed him, and may thereupon make such order as justice
requires. An attorneys wilfully appear in court for a person without
being employed, unless by leave of the court, may be punished for
contempt as an officer of the court who has misbehaved in his official
transactions.
Section 22. Attorney who appears in lower court presumed to
represent client on appeal. — An attorney who appears de parte in a
case before a lower court shall be presumed to continue representing
his client on appeal, unless he files a formal petition withdrawing his
appearance in the appellate court.
Section 23. Authority of attorneys to bind clients. — Attorneys have
authority to bind their clients in any case by any agreement in relation
thereto made in writing, and in taking appeals, and in all matters of
ordinary judicial procedure. But they cannot, without special authority,
compromise their client's litigation, or receive anything in discharge of
a client's claim but the full amount in cash.
Section 24. Compensation of attorneys; agreement as to fees. — An
attorney shall be entitled to have and recover from his client no more
than a reasonable compensation for his services, with a view to the
importance of the subject matter of the controversy, the extent of the
services rendered, and the professional standing of the attorney. No
court shall be bound by the opinion of attorneys as expert witnesses as
to the proper compensation, but may disregard such testimony and
base its conclusion on its own professional knowledge. A written
contract for services shall control the amount to be paid therefor unless
found by the court to be unconscionable or unreasonable.
Section 25. Unlawful retention of client's funds; contempt. — When an
attorney unjustly retains in his hands money of his client after it has
been demanded, he may be punished for contempt as an officer of the
Court who has misbehaved in his official transactions; but proceedings
under this section shall not be a bar to a criminal prosecution.
Section 26. Change of attorneys. — An attorney may retire at any time
from any action or special proceeding, by the written consent of his
client filed in court. He may also retire at any time from an action or
special proceeding, without the consent of his client, should the court,
on notice to the client and attorney, and on hearing, determine that he
ought to be allowed to retire. In case of substitution, the name of the
attorney newly employed shall be entered on the docket of the court in
place of the former one, and written notice of the change shall be given
to the advance party.
A client may at any time dismiss his attorney or substitute another in
his place, but if the contract between client and attorney has been
reduced to writing and the dismissal of the attorney was without
justifiable cause, he shall be entitled to recover from the client the full
compensation stipulated in the contract. However, the attorney may, in
the discretion of the court, intervene in the case to protect his rights.
For the payment of his compensation the attorney shall have a lien
upon all judgments for the payment of money, and executions issued in
pursuance of such judgment, rendered in the case wherein his services
had been retained by the client.
Section 27. Attorneys removed or suspended by Supreme Court on
what grounds. — A member of the bar may be removed or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take
before the admission to practice, or for a wilfull disobedience of any
lawful order of a superior court, or for corruptly or willful appearing as
an attorney for a party to a case without authority so to do. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice.
Section 28. Suspension of attorney by the Court of Appeals or a Court
of First Instance. — The Court of Appeals or a Court of First Instance
may suspend an attorney from practice for any of the causes named in
the last preceding section, and after such suspension such attorney
shall not practice his profession until further action of the Supreme
Court in the premises.
Section 29. Upon suspension by the Court of Appeals or Court of First
Instance, further proceedings in Supreme Court. — Upon such
suspension, the Court of Appeals or the Court of First Instance shall
forthwith transmit to the Supreme Court a certified copy of the order of
suspension and a full statement of the facts upon which the same was
based. Upon the receipt of such certified copy and statement, the
Supreme Court shall make a full investigation of the facts involved and
make such order revoking or extending the suspension, or removing
the attorney from his office as such, as the facts warrant.
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Section 30. Attorney to be heard before removal or suspension. — No
attorney shall be removed or suspended from the practice of his
profession, until he has had full opportunity upon reasonable notice to
answer the charges against him, to produce witnesses in his own
behalf, and to be heard by himself or counsel. But if upon reasonable
notice he fails to appear and answer the accusation, the court may
proceed to determine the matter ex parte.
Section 31. Attorneys for destitute litigants. — A court may assign an
attorney to render professional aid free of charge to any party in a
case, if upon investigation it appears that the party is destitute and
unable to employ an attorney, and that the services of counsel are
necessary to secure the ends of justice and to protect the rights of the
party. It shall be the duty of the attorney so assigned to render the
required service, unless he is excused therefrom by the court for
sufficient cause shown.
Section 32. Compensation for attorneys de oficio. — Subject to
availability of funds as may be provided by the law the court may, in its
discretion, order an attorney employed as counsel de oficio to be
compensates in such sum as the court may fix in accordance with
section 24 of this rule. Whenever such compensation is allowed, it shall
be not less than thirty pesos (P30) in any case, nor more than the
following amounts: (1) Fifty pesos (P50) in light felonies; (2) One
hundred pesos (P100) in less grave felonies; (3) Two hundred pesos
(P200) in grave felonies other than capital offenses; (4) Five Hundred
pesos (P500) in capital offenses.
Section 33. Standing in court of person authorized to appear for
Government. — Any official or other person appointed or designated in
accordance with law to appear for the Government of the Philippines
shall have all the rights of a duly authorized member of the bar to
appear in any case in which said government has an interest direct or
indirect.
Section 34. By whom litigation conducted. — In the court of a justice of
the peace a party may conduct his litigation in person, with the aid of
an agent or friend appointed by him for the purpose, or with the aid an
attorney. In any other court, a party may conduct his litigation
personally or by aid of an attorney, and his appearance must be either
personal or by a duly authorized member of the bar.
Section 35. Certain attorneys not to practice. — No judge or other
official or employee of the superior courts or of the Office of the
Solicitor General, shall engage in private practice as a member of the
bar or give professional advice to clients.
Section 36. Amicus Curiae. — Experienced and impartial attorneys
may be invited by the Court to appear as amici curiae to help in the
disposition of issues submitted to it.
Section 37. Attorneys' liens. — An attorney shall have a lien upon the
funds, documents and papers of his client which have lawfully come
into his possession and may retain the same until his lawful fees and
disbursements have been paid, and may apply such funds to the
satisfaction thereof. He shall also have a lien to the same extent upon
all judgments for the payment of money, and executions issued in
pursuance of such judgments, which he has secured in a litigation of
his client, from and after the time when he shall have the caused a
statement of his claim of such lien to be entered upon the records of
the court rendering such judgment, or issuing such execution, and shall
have the caused written notice thereof to be delivered to his client and
to the adverse paty; and he shall have the same right and power over
such judgments and executions as his client would have to enforce his
lien and secure the payment of his just fees and disbursements.
A. M. No. 139 March 28, 1983
RE: ELMO S. ABAD, 1978 Successful Bar Examinee. ATTY.
PROCOPIO S. BELTRAN, JR., President of the Philippine Trial
Lawyers Association, Inc., complainant,
vs.
ELMO S. ABAD, respondent.
ABAD SANTOS, J.:
Charged by Atty. Procopio S. Beltran, Jr., president of the Philippine
Trial Lawyers Association, Inc., of practicing law without having been
previously admitted to the Philippine Bar, Mr. Elmo S. Abad could not
deny and had to admit the practice. In exculpation he gives the
following lame explanation:
1. On July 23, 1979, respondent conformably with
the Resolution of the Honorable Supreme Court
En Banc dated July 10, 1979, ... prior to his taking
the Oath of Office as a member of the bar, paid his
Bar Admission Fee in the amount of P175.00 as
shown by Official Receipt No. 8128792, ... paid his
Certification Fee in the amount of P5.00 as shown
by Official Receipt No. 8128793, ... and also paid
his Membership Dues for the year 1979-80 to the
Integrated Bar of the Philippines as shown by
Official Receipt No. 83740,... .
2. On July 26, 1979, Atty. Romeo Mendoza, the
then Clerk of Court of the Honorable Supreme
Court, included the respondent as among those
taking the Oath of Office as Member of the Bar as
shown by a Letter of Request dated July 23, 1979,
...
3. At around Eleven o' clock in the morning of July
26, 1979, while waiting for my turn to take my Oath
as a member of the Bar, I was made to sign my
Lawyer's Oath by one of the Clerk in the Office of
the Bar Confidant and while waiting there, Atty.
Romeo Mendoza told me that Chief Justice, the
Honorable Enrique M. Fernando wants to talk to
me about the Reply of Mr. Jorge Uy (Deceased) to
my Answer to his Complaint. The Honorable Chief
Justice told me that I have to answer the Reply
and for which reason the taking of my Lawyer's
Oath was further suspended. *
4. On July 31, 1979, I filed my Reply to Mr. Jorge
Uy's Answer with a Prayer that the Honorable
Supreme Court determines my fitness to be a
member of the Bar;
5. While waiting for the appropriate action which
the Honorable Supreme Court may take upon my
Prayer to determine my fitness to be a member of
the Bar, I received a letter from the Integrated Bar
of the Philippines, Quezon City Chapter dated May
10, 1980 informing the respondent of an Annual
General Meeting together with my Statement of
Account for the year 1980-1981, ... .
6. Believing that with my signing of the Lawyer's
Oath on July 26, 1979 and my Reply to Mr. Jorge
Uy's (Deceased) Answer, the Honorable Supreme
Court did not ordered for the striking of my name
in the Roll of Attorneys with the Integrated Bar of
the Philippines and therefore a Member in Good
Standing, I paid my membership due and other
assessments to the Integrated Bar of the
Philippines, Quezon City Chapter, as shown by
Official Receipt No. 110326 and Official Receipt
No. 0948, ... . Likewise respondent paid his
Professional Tax Receipt as shown by Official
Receipt No. 058033 and Official Receipt No.
4601685, ... .
7. On February 28, 1981, the Integrated Bar of the
Philippines, Quezon City Chapter also included the
name of the respondent as a Qualified Voter for
the election of officers and directors for the year
1981-1982, ... .
8. Respondent's belief and good faith was further
enhanced by the fact that on January 8, 1981,
Complainant Jorge Uy in SBC607 died and herein
respondent submitted a verified Notice and Motion
with the Honorable Supreme Court on April 27,
1981; notifying the Court of this fact with a prayer
that herein respondent be allowed to take his Oath
as Member of the Bar;
9. Thereafter, respondent was again assessed by
the Integrated Bar for his 1981-1982 membership
due and other assessment for which the
undersigned paid as shown by Official Receipt No.
132734 and Official Receipt No. 3363, ... .
10. Respondent likewise paid his Professional Tax
Receipt for 1981 as shown by Official Receipt No.
3195776, ... .
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 11. Respondent likewise has a Certificate of
Membership in the Integrated Bar of the
Philippines as well as a Certificate of Membership
in Good Standing with the Quezon City Chapter of
the Integrated Bar of the Philippines, ....
Respondent Abad should know that the circumstances which he has
narrated do not constitute his admission to the Philippine Bar and the
right to practise law thereafter. He should know that two essential
requisites for becoming a lawyer still had to be performed, namely: his
lawyer's oath to be administered by this Court and his signature in the
Roll of Attorneys. (Rule 138, Secs. 17 and 19, Rules of Court.)
The proven charge against respondent Abad constitutes contempt of
court (Rule 71, Sec. 3(e), Rules of Court.)
WHEREFORE, Mr. Elmo S. Abad is hereby fined Five Hundred
(P500.00) pesos payable to this Court within ten (10) days from
notice failing which he shall serve twenty-five (25) days imprisonment.
SO ORDERED.
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 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.
4
 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.
x x x           x x x          x x x
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.
December 7, 1928
In re FELIPE DEL ROSARIO
Felipe del Rosario in his own behalf.
City Fiscal Guevara for the Government.
MALCOLM, J.:
The supplementary report on bar examination irregularities of the fiscal
of the City of Manila, dealing with the case of Felipe del Rosario, has
been laid before the court for consideration and action. It is
recommended by the city fiscal that Felipe del Rosario be ordered to
surrender his certificate of attorney and that he be forever prohibited
from taking the bar examination. An answer to the report has been
permitted to be made, in which the court is asked to disapprove the
report and to direct the setting aside of the suspension to practice law
by the respondent, heretofore ordered by the court.
Felipe del Rosario was a candidate in the bar examination who failed
for the second time in 1925. He presented himself for the succeeding
bar examination in 1926 and again was unable to obtain the required
rating. Then on March 29, 1927, he authorized the filing of a motion for
the revision of his papers for 1925 based on an alleged mistake in the
computation of his grades. The court, acting in good faith, granted this
motion, and admitted Felipe del Rosario to the bar, but with justices
dissenting. Subsequently, during the general investigation of bar
examination matters being conducted by the city fiscal, this case was
taken up, with the result that a criminal charge was lodged in the Court
of First Instance of Manila against Juan Villaflor, a former employee of
5
the court and Felipe del Rosario. Villaflor pleaded guilty to the
information and was sentenced accordingly. Del Rosario pleaded not
guilty, and at the conclusion of the trial was acquitted for lack of
evidence.
The acquittal of Felipe del Rosario upon the criminal charge is not a
bar to these proceedings. The court is now acting in an entirely
different capacity from that which courts assume in trying criminal
cases. It is asking a great deal of the members of the court to have
them believe that Felipe del Rosario was totally unaware of the illegal
machinations culminating in the falsification of public documents, of
which he was the sole beneficiary. Indeed, the conviction of Juan
Villaflor in itself demonstrates that Felipe del Rosario has no legal right
to his attorney's certificate. While to admit Felipe del Rosario again to
the bar examination would be tantamount to a declaration of
professional purity which we are totally unable to pronounce. The
practice of the law is not an absolute right to be granted every one who
demands it, but is a privilege to be extended or withheld in the exercise
of a sound discretion. The standards of the legal profession are not
satisfied by conduct which merely enables one to escape the penalties
of the criminal law. It would be a disgrace to the Judiciary to receive
one whose integrity is questionable as an officer of the court, to clothe
him with all the prestige of its confidence, and then to permit him to
hold himself out as a duly authorized member of the bar. (In re Terrell
[1903], 2 Phil., 266; People ex rel. Colorado Bar Association vs.
Thomas [1906], 36 Colo., 126; 10 Ann. Cas., 886 and note; People vs.
Macauley [1907], 230 Ill., 208; Ex parte Wall [1882], 107 U. S.,
265.)1awphi1.net
The recommendation contained in the special report pertaining to
Felipe del Rosario is approved, and within a period of ten days from
receipt of notice, the respondent shall surrender his attorney's
certificate to the clerk of this court.
Avanceña, C. J., Johnson, Street, Villamor, Ostrand, Romualdez and
Villa-Real, JJ., concur.
[G.R. No. 666. January 14, 1902. ]
IN THE MATTER OF THE PETITION OF J. GARCIA BOSQUE FOR
ADMISSION TO THE PRACTICE OF LAW IN THE PHILIPPINE
ISLANDS.
Oscar Sutro, attorney for Petitioner.
SYLLABUS
1. TREATY OF PARIS; NATIONALITY; SPANIARDS RESIDENT IN
THE PHILIPPINES. — By the treaty of Paris Spaniards resident in the
Philippines were given the option of retiring or remaining. In the former
case they retained their Spanish nationality; in the latter case they
became American subjects after a continued residence of eighteen
months, unless their intention to remain Spanish subjects was
expressly protested.
2. ID.; ID.; ID. — Upon the cession of the Islands the change of
nationality of resident Spaniards was not implied by either continued
residence or silence alone; the concurrence of both conditions was
necessary to effect the change.
3. ID.; ID.; ID. — A Spaniard who quitted his residence in the
Philippines within eighteen months after the ratification of the treaty
and returned after the lapse of said period remained a Spanish subject,
notwithstanding his omission to expressly protest his intention to so
remain.
4. ID.; ID.; ID. — Since the ratification of the treaty of Paris the rights of
Spanish subjects resident in the Philippines are identical with those of
other resident foreigners.
5. ID.; ID.; LICENSE TO PRACTICE LAW. — Under the laws in force,
both prior and subsequent to the treaty of Paris, the right to practice
law is denied to foreigners; since the cession of the Islands, therefore,
that right must be denied to resident Spanish subjects.
6. NATURALIZATION. — In the absence of legislation, American
citizenship can not be acquired in the Philippine Islands.
DECISION
ARELLANO, C.J. :
The cession of the Philippine Archipelago having been agreed upon by
the parties to the treaty of Paris of December 10, 1898, the compulsory
subjection of the subjects of the ceding power to the new sovereign
followed as a logical consequence. The status of these subjects was
not uniform, as in addition to the natives there were others who were
merely residents but who, equally with the natives, had interests and
rights inherent in the nationality of the territory. With respect to these
the special agreement contained in article 9 was established, by virtue
of which it was agreed to accord them the right of electing to leave the
country, thus freeing themselves of subjection to the new sovereign, or
to continue to reside in the territory, in which case the expiration of the
term of eighteen months without their making an express declaration of
intention to retain their Spanish nationality resulted in the loss of the
latter, such persons thereby becoming subjects of the new sovereign in
the same manner as the natives of these Islands. The period of
eighteen months began to run from the date of the exchange of the
ratifications of the treaty — that is to say, from April 11, 1899, and
expired on the corresponding day of October, 1900. The petitioner
absented himself from these Islands on May 30, 1899, and remained
absent therefrom during the whole period. It was in January, 1901, that
he returned to these Islands.
From this conduct on the part of the petitioner it is evident that he
elected to take the first of the two courses open to him under his right
of option. Neither the Government nor the courts can place any other
construction upon the facts above related. Having left the Islands he
had no occasion to make any declaration of his intention to preserve
his Spanish nationality, which he carried with him on his departure.
This nationality could be forfeited only by a continued residence in the
ceded territory and a failure to make a declaration of intention to
preserve it within the term fixed therefor. The conditions which gave
rise to the presumptive change of nationality were residence and the
lapse of eighteen months without express declaration to the contrary;
these two conditions not being fulfilled there was no change of national
status. Neither by the Government of Spain nor by that of the United
States could the petitioner be regarded as a Filipino subject. By
absenting himself from the territory he continued to be a Spaniard.
To native-born subjects of the territory no such right of option was
accorded; it was expressly refused them upon the rejection by the
American Commissioners of the proposition in favor of the inhabitants
of the ceded territories made by the Spanish Commissioners in Annex
No. 1 to the twenty-second protocol. (Conference of December 10,
1898.) The native subject could not evade the power of the new
sovereign by withdrawing from the Islands, nor while continuing to
reside therein make declaration of his intention to preserve the Spanish
nationality enjoyed under the former sovereign. Neither the
Government of the United States nor that of Spain can donsider them
as other than Filipino subjects. This is expressly stated by the Spanish
Government in article 1 of its royal decree of May 11, 1901.
The dates fixed by the treaty by which the sovereignty of one nation is
ceded to another are of the highest importance, they being part of the
contract, and are not within the control of the subjects as are those
relating to their individual rights by reason of the fact that the political
rights of the contracting nations themselves are the subject of the
agreement. It is for this reason that the Government of Spain in the
royal decree above cited has always taken the dates fixed in the treaty
of Paris as the starting point, and, moreover, expressly declares
therein that persons who are natives or residents of the ceded or
relinquished territories can not, in their relations with the Government
or authorities of such territories, lay claim to Spanish nationality
preserved or recovered by virtue of said decree, except with the
consent of such Government, or under treaty stipulations. (Art. 5.) The
Government and courts of these Islands should not act with less
circumspection in the matter, and invade the sovereign rights of Spain
by giving the presumptive nationality established by Article IX of the
treaty of Paris an extent not warranted by the conditions upon which it
depends, to wit, residence coupled with failure to make an express
declaration to the contrary. The ordinary provisions of local laws in their
normal operation with regard to the effect of absence upon the
retention of a residence or domicile can not therefore be relied upon,
nor the presumption as to the intention of an absentee recognized by
civil codes and international treaties, although the most general and
almost the only proof allowed by statute as evidence of an intention to
preserve a residence or domicile in a country is the maintenance of a
dwelling or commercial establishment therein, upon which point, as
also upon the fact that the petitioner became a member of the bar of
Barcelona upon his arrival in that city, we make no decision, not
regarding it as of any moment in view of the conclusions above
expressed. The fact is that one is not to be regarded as having
submitted to the new sovereign by the mere failure to make an express
declaration, inasmuch as without a residence de facto the declaration
is of no significance, having been established for the express purpose
of overcoming the effect of a continued residence, an act which in itself
implies subjection to the new sovereign by giving rise to the
presumption of waiver of Spanish nationality and the adoption of that of
the territory.
The petitioner can not, therefore, be considered to have lost his
Spanish nationality by reason of his residence in the territory after the
11th of October, 1900, and his failure to make declaration of his
intention to preserve it within the period agreed upon by the high
6
contracting parties to the treaty of Paris, and to have adopted the
nationality of the native subjects under the presumption arising from
the conditions expressed. He can only acquire it through voluntary
renunciation of his present nationality by seeking to become
naturalized in these Islands; but upon this matter this court can decide
nothing, there having been no legislation upon the subject up to the
present.
The status of the petitioner with respect to the new sovereignty of the
territory having been defined, it remains to determine the question
raised as to whether Spanish subjects resident therein constitute an
intermediate class between other foreign residents and the natives of
the country in whose behalf some specially favorable conditions have
been stipulated. Upon this point no proposition was made, even
incidentally, nor was any reference made to it in the discussions which
preceded the treaty of Paris. The American Commissioners, referring
to Spanish subjects, natives of Spain, simply said: "Such persons have
the fullest right to dispose of their property and remove from the
territory or remain therein to continue to be Spanish subjects or elect
the nationality of the new territory." (Memorandum annexed to Protocol
No. 22.) "They shall also have the right to carry on their industry,
commerce, and profession, being subject in respect thereof to such
laws as are applicable to other foreigners." (Art. 9 of the treaty of
Paris.) The laws applicable to other foreigners were, prior to that treaty,
the Law of Foreigners for the Ultramarine Provinces of July 4, 1870,
and article 27 of the Civil Code. The first of these laws in its thirty-ninth
article authorized all foreigners to engage in any kind of industry in the
Spanish ultramarine provinces subject to the laws prevailing therein,
and to practice any profession for which the laws did not require a
diploma of proficiency granted by the Spanish authorities. No one can
doubt that the legal profession is one of those for the practice of which
the law required a diploma of proficiency granted by the Spanish
authorities. The second law cited provides that foreigners in Spain shall
enjoy the rights which the civil laws accord to Spaniards, subject to the
provisions of article 2 of the constitution of the State. Article 2 of the
constitution of 1876 establishes the same restriction or limitation as the
law of foreigners. Hence if other foreigners could not then engage in
the practice of law, and by the express prohibition of the Code of Civil
Procedure in force can not do so at the present time, neither can
Spanish subjects do so, they being in every respect upont he same
footing as other foreigners.
If, then, the petitioner upon his departure from these Islands on May
30, 1899, did not take with him the nationality of the native inhabitants
impressed by the treaty of Paris, which had been in force from the 11th
of April of the same year; if he departed as a Spaniard and continued
to be a Spaniard, by taking the first course left open by the right of
option stipulated in the treaty of Paris, without being affected by the
presumptive nationality of the territory arising from the fact of residence
and the lapse of the time fixed; if he had not elected to adopt this
nationality of the territory by express declaration within the same
period; if after the expiration of that period it is expressly provided that
the right of option shall no longer be available, and that the only course
is naturalization, as to which there has been no legislative enactment; if
as a Spanish subject upon equal footing with other foreign residents he
can not practice the legal profession under the law either prior or
subsequent to the treaty of Paris, it is evident that this court can not
regard the petitioner as possessed of the qualifications alleged.
The new petition presented by him for admission to the bar of these
Islands must therefore be denied, and it is so ordered.
Torres, Cooper, Willard and Mapa, JJ., concur.
Ladd, J., did not sit in this case.
A.M. No. L-363             July 31, 1962
IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO
Q. GUTIERREZ, respondent.
Victoriano A. Savellano for complaint.
Nestor M. Andrada for respondent.
MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar,
admitted to it on October 5, 1945. In criminal case No. R-793 of the
Court of First Instance of Oriental Mindoro he was convicted of the
murder of Filemon Samaco, former municipal mayor of Calapan, and
together with his co-conspirators was sentenced to the penalty of
death. Upon review by this Court the judgment of conviction was
affirmed on June 30, 1956 (G.R. No. L-17101), but the penalty was
changed to reclusion perpetua. After serving a portion of the sentence
respondent was granted a conditional pardon by the President on
August 19, 1958. The unexecuted portion of the prison term was
remitted "on condition that he shall not again violate any of the penal
laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco,
victim in the murder case, filed a verified complaint before this Court
praying that respondent be removed from the roll of lawyers pursuant
to Rule 127, section 5. Respondent presented his answer in due time,
admitting the facts alleged by complainant regarding pardon in
defense, on the authority of the decision of this Court in the case of In
re Lontok, 43 Phil. 293.
Under section 5 of Rule 127, a member of the bar may be removed
suspended from his office as attorney by the Supreme Court by reason
of his conviction of a crime insolving moral turpitude. Murder is, without
doubt, such a crime. The term "moral turpitude" includes everything
which is done contrary to justice, honesty, modesty or good morals. In
re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it
means an act of baseness, vileness, or depravity in the private and
social duties which a man owes to his fellowmen or to society in
general, contrary to the accepted rule of right and duty between man
and man. State ex rel. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am.
Jur. Sec. 279. pp. 428-429.
The only question to be resolved is whether or not the conditional
pardon extended to respondent places him beyond the scope of the
rule on disbarment aforecited. Reliance is placed by him squarely on
the Lontok case. The respondent therein was convicted of bigamy and
thereafter pardoned by the Governor-General. In a subsequent viction,
this Court decided in his favor and held: "When proceedings to strike
an attorney's name from the rolls the fact of a conviction for a felony
ground for disbarment, it has been held that a pardon operates to wipe
out the conviction and is a bar to any proceeding for the disbarment of
the attorney after the pardon has been granted."
It is our view that the ruling does not govern the question now before
us. In making it the Court proceeded on the assumption that the
pardon granted to respondent Lontok was absolute. This is implicit in
the ratio decidendi of the case, particularly in the citations to support it,
namely. In Re Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex. Civ.
App. 343; and Ex parte Garland, 4 Wall, 380. Thus in Scott vs.
State the court said:
We are of opinion that after received an unconditional
pardon the record of the felony conviction could no longer be
used as a basis for the proceeding provided for in article
226. The record, when offered in evidence, was met with an
unconditional pardon, and could not, therefore, properly be
said to afford "proof of a conviction of any felony." Having
been thus cancelled, all its force as a felony conviction was
taken away. A pardon falling short of this would not be a
pardon, according to the judicial construction which that act
of executive grace was received. Ex parte Garland, 4 Wall,
344; Knote v. U.S., 95 U.S. 149, and cases there
cited; Young v. Young, 61 Tex. 191.
And the portion of the decision in Ex parte Garland quoted with
approval in the Lontok case is as follows:
A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out the existence of
guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the offense. It granted before
conviction, it prevents any of the penalties and disabilities,
consequent upon conviction, from attaching; if granted after
conviction, it removes the penalties and disabilities, and
restores him to all his civil rights it makes him, as it were, a
new man, and gives him a new credit and capacity.
The pardon granted to respondent here is not absolute but conditional,
and merely remitted the unexecuted portion of his term. It does not
reach the offense itself, unlike that in Ex parte Garland, which was "a
full pardon and amnesty for all offense by him committed in connection
with rebellion (civil war) against government of the United States."
The foregoing considerations rendered In re Lontok are inapplicable
here. Respondent Gutierrez must be judged upon the fact of his
conviction for murder without regard to the pardon he invokes in
defense. The crime was qualified by treachery and aggravated by its
having been committed in hand, by taking advantage of his official
position (respondent being municipal mayor at the time) and with the
use of motor vehicle. People vs. Diosdado Gutierrez, supra. The
degree of moral turpitude involved is such as to justify his being purged
from the profession.
The practice of law is a privilege accorded only to those who measure
up to certain rigid standards of mental and moral fitness. For the
admission of a candidate to the bar the Rules of Court not only
prescribe a test of academic preparation but require satisfactory
7
testimonials of good moral character. These standards are neither
dispensed with nor lowered after admission: the lawyer must continue
to adhere to them or else incur the risk of suspension or removal. As
stated in Ex parte Wall, 107 U.S. 263, 27 Law ed., 552, 556: "Of all
classes and professions, the lawyer is most sacredly bound to uphold
the laws. He is their sworn servant; and for him, of all men in the world,
to repudiate and override the laws, to trample them under foot and to
ignore the very bonds of society, argues recreancy to his position and
office and sets a pernicious example to the insubordinate and
dangerous elements of the body politic.
WHEREFORE, pursuant to Rule 127, Section 5, and considering the
nature of the crime for which respondent Diosdado Q. Gutierrez has
been convicted, he is ordered disbarred and his name stricken from the
roll of lawyers.
Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and
Regala, JJ., concur.
Padilla, J., took no part.
Respondent sent the corresponding letter to Alfredo Ong but the latter
did not answer. Forthwith a complaint was filed on March 8, 1972 with
the Court of First Instance of Albay (Civil Case No. 4591) entitled:
"Concepcion Dia-Añonuevo, et al., plaintiffs, versus Maximo Balibado
et al., defendants" for "annulment of sale of real property and
redemption with damages." This complaint was prepared on February
26, 1972 by "Eligio R. Berango & B.B. Bercacio & Ass." as counsel for
the plaintiffs, with Eligio R. Berango signing the complaint. (Exhibit B)
During the pendency of the civil case, complainant asked respondent
judge to allow her to withdraw P1,500.00 from the P3,500.00 she had
deposited with him as she was then in need of money, but no action
was taken by respondent. The verbal request was followed by a
registered letter dated January 24, 1973 advising Judge Bercacio that
complainant herein was withdrawing the amount of P3,500.00
deposited with him and requesting him to remit the said amount within
ten days from receipt of the letter. (Exhibit D) There was still no
response from respondent Judge, hence, another letter was sent dated
February 21, 1973, which We quote:

San Roque
A.M. No. 177-MJ November 27, 1975
Sto. Domin
Albay
CONCEPCION DIA-AÑONUEVO, complainant, February 2
vs.
MUN. JUDGE BONIFACIO B. BERCACIO OF TABACO,
Hon. Bonifacio Bercacio
ALBAY, respondent.
Municipal Judge of Tabaco
Tabaco Albay

Sir:
MUÑOZ PALMA, J.:
This is a tracer of my letter to
Respondent, incumbent Municipal Judge of Tabaco, Albay, faces this you dated January 28, 1973,
administrative complaint for conduct unbecoming a judge on two demanding from you the
counts: (1) engaging in the practice of law, and (2) failure to return return of the amount of Three
promptly to complainant, Concepcion Dia-Añonuevo, the money Thousand Five Hundred
deposited with him. Pesos (P3,500.00), which I
entrusted to you for the
redemption of my land which
The following are the undisputed facts:
is involved in Civil Case No.
4591 entitled "Concepcion
Mrs. Concepcion Dia-Añonuevo, to whom We shall refer henceforth as Dia-Añonuevo, et al., vs.
complainant, claims to be a co-owner of an undivided interest of a Maximo Balibado, et al.,"
certain parcel of irrigated riceland situated in Cabilogan, Sto. Niño, Sto. which is now pending in the
Domingo, Albay. This property was the object of a deed of sale Court of First Instance of
executed by Maximo Balibado, Justo Balibado and Petrona Balibado Albay, Branch III. Inasmuch
de Barrios in favor of Alfredo Ong and acknowledged before Municipal as you failed to deposit that
Judge Bonifacio Bercacio, respondent herein, as ex-officio notary amount to the Clerk of Court,
public, on January 25, 1972. Having been apprised of the execution of Court of First Instance of
this deed of sale, complainant went to the office of Judge Bercacio to Albay, I am demanding from
verify the matter. Upon being shown a copy of the deed of sale, your good self the return of
complainant informed respondent judge that the vendors owned only said amount to me because I
one-third undivided portion of the property and that she and other need it very badly.
cousins of hers owned two-thirds thereof. Judge Bercacio advised the
complainant to redeem or repurchase the property from the vendee, I have spent a lot of money in
Alfredo Ong. Complainant then requested the judge to intercede in going back and forth from Sto.
their behalf with the vendee to allow them to redeem the property and Domingo to your residence to
for that purpose she gave respondent the amount of P3,500.00 to be demand from you the amount
used to pay Alfredo Ong. Respondent agreed and received the amount but of no avail for almost one
of P3,500.00 for which he issued the corresponding receipt which year. Failure on your part to
reads: comply with the same, I will be
constrained to take the
This is to certify that MRS. CONCEPCION DIA- necessary action on the
AÑONUEVO of Sto. Domingo, Albay, has matter against you.
deposited with the undersigned, the sum of
THREE THOUSAND FIVE HUNDRED Thank you.
(P3,500.00) PESOS Philippine Currency, for the
purpose of exercising her right to the legal
redemption of the property sold to MR. ALFREDO Very truly
ONG by Messrs. Maximo Balibado, Justo Balibado yours,
and Mrs. Petrona B. de Barrios as per Doc. No. 7,
Page 3, Book No. 1, Series of 1972, of the Notarial
(Sgd.)
Register of the undersigned, dated Jan. 25, 1972.
Mrs.
CONCEP
Tabaco, Albay, February 23, 1972. CION
DIA-
AÑONUE
(Sgd.) VO
BONIFACI (Exhibit E)
O B.
BERCACI
O (Exhibit As the foregoing letter elicited no reaction from the Judge, complainant
C) Mrs. Añonuevo sought the assistance of a lawyer in the person of Atty.
Rodolfo A. Madrid who accordingly wrote to respondent on March 16,
1973, giving the lattera final period of grace within which to return the
Judge sum of P3,500.00, otherwise proper measures would be taken to
protect the interests of his client. (Exhibit F)

8
Respondent finally broke his silence and answered with a letter given
hereunder:
Tabaco, Albay
March 21, 1973
Atty. Rodolfo A. Madrid
El Casino Bldg.
Legazpi City
Dear Dolfo:
I am in receipt today of yours
dated the 16th. inst.
Frankly, I am indeed surprised
at the tenor of your letter,
particularly the threat it
contains despite the
explanation I verbally gave
you when you dropped at my
office. .
If you would re-examine the
receipt I issued to Mrs.
Concepcion D. Añonuevo,
dated February 23, 1972, you
will note that the amount was
entrusted to me to make it
available anytime "for the
purpose of exercising her right
to the legal redemption of the
property sold to Mr. Alfredo
Ong." The case instituted by
the plaintiffs, among whom is
Mrs. Añonuevo for the
determination of their right is
still pending in Court due to
the illness of Judge Zurbano
and the prolonged vacation of
the Presiding Judge.
When the money was
entrusted to me, I was made
to understand that the amount
was not exclusively hers
alone. I regret that legal ethics
forbid me from revealing to
you what was imparted to me
in confidence which I have the
moral obligation to keep
inviolate.
Your insinuation of inaction on
my part is false because I
summoned Mrs. Añonuevo to
my office after I received her
letters; she apologized and
did not insist that the money
be returned pending the
termination of the civil case.
From reliable sources I have
learned that she is being
made a conveyance tool for
sinister motives and there is
ample ground to suspect that
this matter is being used as a
vehicle for revenge.
The case now pending in the
CFI is being handled by
another lawyer who should
have some say on this matter.
Very truly
yours,
(Sgd.)
BONIFACIRules of Court, Vol. 6, 1974 Ed., p. 251; Moran, Rules of Court, 1970
O B.
BERCACI explanation that it was Atty. Berango who represented Mrs. Añonuevo
O (Exhibit and her co-plaintiffs in court, respondent's actuations as noted above
G)
Due to the non-remittance of the aforementioned amount, Atty. Madrid
filed with the Court of First Instance an urgent motion dated August 20,
1973, praying that Judge Bercacio be directed to consign in court the
amount deposited with him by the plaintiff, Mrs. Añonuevo. (Exhibit H)
Upon receipt of the foregoing motion, respondent manifested to the
trial judge that he would be ready to deliver the money as soon as the
plaintiffs won the case. On September 13, 1973, the trial court
rendered judgment in favor of the plaintiffs, and on the same date,
issued an order directing Judge Bercacio to deposit with the Clerk of
Court the amount of P3,500.00 within five (5) days from receipt of the
order (t.s.n. February 1, 1974, p. 19). On September 17, Judge
Bercacio received a copy of the order and on September 26, 1973, he
turned over the amount to Atty. Rodolfo Madrid (t.s.n. Ibid. pp. 22-24)
1. Respondent violated Section 77 of the Judiciary Act of 1948, as
amended, which provides in part:
All provisions relative to the observance of office
hours and the holding of sessions applicable to
courts of first instance shall likewise apply to
municipal judges, but the latter may, after office
hours and with the permission of the district judge
concerned, engage in teaching or other vocation
not involving the practice of law ... (Emphasis
supplied)
and which was implemented by Circular No. 37 of the Secretary of
Justice dated June 22, 1971 to the effect that
... no Municipal Judge shall ... engage in private
practice as a member of the bar or give
professional advice to clients ... (emphasis
supplied)
Respondent submits that it was Atty. Berango and not he who assisted
the complainant, Mrs. Añonuevo, and her co-plaintiffs as counsel in the
civil case; that when he saw his name in the complaint as one of the
lawyers, he called Atty. Berangos attention to the mistake and this was
immediately corrected in the subsequent pleadings by deleting his
name.
Respondent's claim is belied, however, by the active interest he took in
the case of Mrs. Añonuevo manifested as follows: (a) He gave Mrs.
Añonuevo legal advice on the remedy available to her and her co-
owners with regards to the property sold to Alfredo Ong. (b) He
accepted from Mrs. Añonuevo the sum of P3,500.00 for purposes of
redeeming the property from the vendee, plus P100.00 for incidental
expenses (t.s.n. January 28, 1974, p. 9). (c) He wrote to Alfredo Ong
for and in behalf of Mrs. Añonuevo and her co-owners offering to
redeem the land in question (t.s.n. February 19, 1974, p. 89). (d) When
his attempts at an out-of-court settlement failed, he caused the filing of
the complaint in Civil Case No. 4591 (t.s.n. February 1, 1974, p. 24),
for which he was issued a receipt for docket and legal research fees
(t.s.n. February 19, 1974, p. 119). (e) He was present together with
Atty. Berango at the pre-trial of July 5, 1972, and although, as he
claims, it was Atty. Berango who made an appearance for that pre-trial,
the trial Judge nonetheless took note of respondent's presence so that
the Order dictated on that occasion reads: "Attys. Berango and
Bercacio are notified of the date of the trial." (t.s.n. February 19, 1974,
p. 67)
Moreover, it has not escaped Our attention that as claimed by
complainant herein it was respondent Judge who dealt with her all
along in connection with the conduct of her case. This is borne out by
the letter of Atty. Berango asking respondent to collect from Mrs.
Añonuevo the amount of P500.00 as his attorney's fees (Annex 3 of
respondent's comment, p. 11, rollo), and the fact that respondent
invited Mrs. Añonuevo to a conference in his office to discuss the
matter with Atty. Berango. (see Annex A, Ibid., p. 12, rollo) If Atty.
Berango indeed was the lawyer of Mrs. Añonuevo, why did he have to
seek the intervention of respondent to collect his attorney's fees and
why did respondent have to call Mrs. Añonuevo to his office for that
purpose?
The practice of law is not limited to the conduct of cases in court or
participation in court proceedings but also includes preparation of
pleadings or papers in anticipation of a litigation, giving of legal advice
to clients or persons needing the same, etc. (Martin, Comments on
Ed., Vol. 6, p. 206) Hence, even if we were to accept respondent's
still fall within the prohibition.
9
The rule disqualifying a municipal judge from engaging in the practice
of law seeks to avoid the evil of possible use of the power and
influence of his office to affect the outcome of a litigation where he is
retained as counsel. Compelling reasons of public policy lie behind this
prohibition, and judges are expected to conduct themselves in such a
manner as to preclude any suspicion that they are representing the
interests of a party litigant.
2. Respondent's failure to return the amount of P3,500.00 to herein
complainant upon her demand is highly reproachable, to say the least.
Mrs. Añonuevo gave to respondent the aforesaid amount with the
understanding that it would be offered to Alfredo Ong for purposes of
redeeming the property sold by Mrs. Añonuevo's co-owners. When
Alfredo Ong refused the extra-judicial offer of redemption, respondent
should have either returned the money to Mrs. Añonuevo or consigned
it in court.
Respondent contends that he kept the money because he wanted it
ready for payment to the vendee should the complaint for redemption
prosper. In fact, according to respondent, he brought the amount with
him during the pre-trial of July 5, 1972, just in case an amicable
settlement would be effected between the parties, but when this failed,
he gave the P3,500.00 to Atty. Berango for custody. However, on April
9, 1973, Atty. Berango returned to him the money because Mrs.
Añonuevo had secured the services of another counsel. Due to this
development, he wrote to complainant herein to come to his office for a
conference with Atty. Berango on the latter's attorney's fee and also in
order that she may get back the money she had deposited. (t.s.n.
February 19, 1974, pp. 95-100)
The explanation of respondent fails to convince Us of his good faith.
Even if we were to concede that his intention in keeping the money
was to have it ready at any time for payment to Alfredo Ong should the
civil case prosper, nevertheless, when complainant herein made
demands on him, verbal as well as written, to return the money, he
should have immediately turned it over to complainant to forestall or
erase any possible suspicion that he had spent it; or he could have
deposited it in court, anyway, his purpose, as he said, was to keep the
money available at all times.
Respondent's obstinate refusal or failure to accede to complainant's
request for almost a year led the latter to secure the services of
another counsel who was compelled — what to him must have been
an unpleasant task — to ask from no less than a member of the
Judiciary the return of the P3,500.00 deposited with the latter otherwise
he would have to take the necessary steps to protect the interest of his
client. That demand of Atty. Madrid was made in March of 1973, but
instead of delivering the amount, respondent still held it putting up the
excuse in a letter to Atty. Madrid (see pp. 4-5 of this Decision) that the
money did not belong entirely to Mrs. Añonuevo and that the latter had
agreed to his keeping the money during the pendency of the case.
That of course was untrue, because, first, there was nothing in the
record to show that the P3,500.00 belonged to persons other than Mrs.
Añonuevo from whom respondent received it, and secondly, it was
Mrs. Añonuevo who had personally been asking all along for the return
of said amount. It is to the discredit of respondent that it took a court
order issued on September 13, 1973, for him to return complainant's
money to Atty. Madrid.
While the Court does not make a categorical finding that respondent
made use of the money deposited with him, nonetheless, We hold that
by his actuations, respondent placed his honesty and integrity under
serious doubt.
Although every office in the government service is a public trust, no
position exacts a greater demand on moral righteousness and
uprightness of an individual than a seat in the Judiciary. A magistrate
of the law must comport himself at all times in such a manner that his
conduct, official or otherwise, can bear the most searching scrutiny of
the public that looks up to him as the epitome of integrity and justice.
To a certain degree, respondent herein failed to meet these exacting
standards of judicial conduct.
WHEREFORE, We find respondent Judge Bonifacio B. Bercacio guilty
as charged, and hereby suspend him from office for a period of six (6)
months effective immediately upon finality of this decision, with the
warning that commission of other acts unbecoming of a Judge will
warrant a more severe penalty from the Court.
So Ordered.
Makalintal, C.J., Castro, Teehankee, Barredo, Makasiar, Antonio,
Esguerra, Aquino, Concepcion, Jr. and Martin, JJ., concur.
G.R. No. L-62909 April 18, 1989
HYDRO RESOURCES CONTRACTORS CORPORATION, petitioner,
vs.
LABOR ARBITER ADRIAN N. PAGALILAUAN and the NATIONAL
LABOR RELATIONS COMMISSION, public respondents, and
ROGELIO A. ABAN, private respondent,
G.E. Aragones & Associates for petitioner.
The Solicitor General for public respondents.
Cirilo A. Bravo for private respondent.
GUTIERREZ, JR., J.:
This is a petition to review on certiorari the resolution of the National
Labor Relations Commission (NLRC) which affirmed the labor arbiter's
decision ordering herein petitioner, Hydro Resources Contractors
Corporation to reinstate Rogelio A. Abanto his former position without
loss of seniority rights, to pay him 12 months backwages in the amount
of P18,000.00 and to pay attorney's fees in the amount of P1,800.00.
On October 24, 1978, petitioner corporation hired the private
respondent Aban as its "Legal Assistant." He received a basic monthly
salary of Pl,500.00 plus an initial living allowance of P50.00 which
gradually increased to P320.00.
On September 4, 1980, Aban received a letter from the corporation
informing him that he would be considered terminated effective
October 4, 1980 because of his alleged failure to perform his duties
well.
On October 6, 1980, Aban filed a complaint against the petitioner for
illegal dismissal.
The labor arbiter ruled that Aban was illegally dismissed.
This ruling was affirmed by the NLRC on appeal.
Hence, this present petition.
The only issue raised by the petitioner is whether or not there was an
employer-employee relationship between the petitioner corporation and
Aban. The petitioner questions the jurisdiction of the public
respondents considering the alleged absence of an employer-
employee relationship. The petitioner contends that its relationship with
Aban is that of a client with his lawyer. It is its position that "(a) lawyer
as long as he is acting as such, as long as he is performing acts
constituting practice of law, can never be considered an employee. His
relationship with those to whom he renders services, as such lawyer,
can never be governed by the labor laws. For a lawyer to so argue is
not only demeaning to himself (sic), but also his profession and to his
brothers in the profession." Thus, the petitioner argues that the labor
arbiter and NLRC have no jurisdiction over the instant case.
The contention is without merit.
A lawyer, like any other professional, may very well be an employee of
a private corporation or even of the government. It is not unusual for a
big corporation to hire a staff of lawyers as its in-house counsel, pay
them regular salaries, rank them in its table of organization, and
otherwise treat them like its other officers and employees. At the same
time, it may also contract with a law firm to act as outside counsel on a
retainer basis. The two classes of lawyers often work closely together
but one group is made up of employees while the other is not. A similar
arrangement may exist as to doctors, nurses, dentists, public relations
practitioners, and other professionals.
This Court is not without a guide in deciding whether or not an
employer-employee relation exists between the contending parties or
whether or not the private respondent was hired on a retainer basis.
As stated in the case of Tabas v. California Manufacturing Co., (G.R.
No. 80680, January 26, 1989):
This Court has consistently ruled that the
determination of whether or not there is an
employer-employee relation depends upon four
10
 standards: (1) the manner of selection and
engagement of the putative employee; (2) the
mode of payment of wages; (3) the presence or
absence of a power of dismissal; and (4) the
presence or absence of a power to control the
putative employee's conduct. Of the four, the right-
of-control test has been held to be the decisive
factor.
Aban was employed by the petitioner to be its Legal Assistant as
evidenced by his appointment paper (Exhibit "A"). The petitioner paid
him a basic salary plus living allowance. Thereafter, Aban was
dismissed on his alleged failure to perform his duties well. (Exhibit "B").
Aban worked solely for the petitioner and dealt only with legal matters
involving the said corporation and its employees. He also assisted the
Personnel Officer in processing appointment papers of employees.
This latter duty is not an act of a lawyer in the exercise of his
profession but rather a duty for the benefit of the corporation.
The above-mentioned facts show that the petitioner paid Aban's
wages, exercised its power to hire and fire the respondent employee
and more important, exercised control over Aban by defining the duties
and functions of his work.
Moreover, estoppel lies against the petitioner. It may no longer
question the jurisdiction of the labor arbiter and NLRC .
The petitioner presented documents (Exhibits "2" to "19") before the
Labor Arbiter to prove that Aban was a managerial employee. Now, it
is disclaiming that Aban was ever its employee. The proper procedure
was for the petitioner to prove its allegations that Aban drank heavily,
violated company policies, spent company funds and properties for
personal ends, and otherwise led the employer to lose trust and
confidence in him. The real issue was due process, not the specious
argument raised in this petition.
The new theory presented before this Court is a last-ditch effort by the
petitioner to cover up for the unwarranted dismissal of its employee.
This Court frowns upon such delaying tactics.
The findings of fact of the Labor Arbiter being supported by substantial
evidence are binding on this Court. (See Industrial limber Corp. v.
National Labor Relations Commission, G.R. No. 83616, January 20,
1989).
Considering that the private respondent was illegally dismissed from
his employment in 1980, he is entitled to reinstatement to his former or
similar position without loss of seniority rights, if it is still feasible, to
backwages without qualification or deduction for three years, (D.M.
Consunji, Inc. v. Pucan 159 SCRA 107 (1988); Flores v. Nuestro, G.R.
No. 66890, April 15, 1988), and to reasonable attorney's fees in the
amount of P5,000.00. Should reinstatement prove no longer feasible,
the petitioner will pay him separation pay in lieu of reinstatement. (City
Trust Finance Corp. v. NLRC, 157 SCRA 87; Santos v. NLRC, 154
SCRA 166; Metro Drug v. NLRC, et al., 143 SCRA 132; Luzon
Brokerage v. Luzon Labor Union, 7 SCRA 116). The amount of such
separation pay as may be provided by law or the collective bargaining
agreement is to be computed based on the period from 24 October
1978 (date of first employment) to 4 October 1983 (three years after
date of illegal dismissal). [Manila Midtown Commercial Corporation v.
Nuwhrain 159 SCRA 212 (1988)].
WHEREFORE, the petition is hereby DISMISSED for lack of merit. The
petitioner is ordered to reinstate the private respondent to his former or
a similar position without loss of seniority rights and to pay three (3)
years backwages without qualification or deduction and P5,000.00 in
attorney's fees. Should reinstatement not be feasible, the petitioner
shall pay the private respondent termination benefits in addition to the
above stated three years backpay and P5,000.00 attorney's fees.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.
G.R. No. L-38974 March 25, 1975
OMICO MINING AND INDUSTRIAL CORPORATION and
FREDERICK G. WEBBER, petitioners,
vs.
JUDGE AMADOR T. VALLEJOS, in his capacity as Judge of the
Court of First Instance of Cavite, ALFREDO CATOLICO, and
LEONARDO ALCID, in his capacity as City Sheriff of
Manila, respondents.
Pio R. Marcos, Guillermo B. Bangonill & Jose P. Perez for petitioners.
Jose S. Lu for respondent Alfredo Catolico.
ANTONIO, J.:ñé+.£ªwph!1
Original petition for certiorari and prohibition with writ of preliminary
injunction to set aside the orders and judgment rendered by
respondent Judge in Civil Case No. N-1963 (Alfredo Catolico v. Omico
Mining and Industrial Corporation, et al.) as having been made without
or in excess of jurisdiction, or with grave abuse of discretion.
I
FACTS
On June 1, 1973, Alfredo Catolico (herein private respondent), then a
judge of the Court of First Instance of Cavite, filed with said court a
complaint, docketed as Civil Case No. N-1963 and assigned to Branch
II presided by respondent Judge Amador T. Vallejos, against Omico
Mining and Industrial Corporation and Frederick G. Webber, the latter
in his personal capacity and as President and Chairman of the Board
of Directors of said corporation, alleging two (2) causes of action. The
first, for the return of ten (10) certificates of stock of the corporation
borrowed from him by the defendants, and the second, for the payment
of his services as legal counsel for the corporation. Under the first
cause of action, plaintiff Catolico alleged among others that he is a
resident of Cavite City where he is a judge of the Court of First
Instance and stockholder of the defendant Omico Mining and Industrial
Corporation holding thirty (30) certificates of stock duly paid up bearing
Nos. 13437 to 13466, the same having been issued to him way back in
August, 1969; that defendant corporation, through its co-defendant
Frederick G. Webber, pleaded with him that ten (10) certificates of
stock, Nos. 13437 to 13446, be allowed to remain with them under
their responsibility, jointly and severally, for the specific purpose of
using said certificates as part collateral for a loan in the amount of
P10,000,000.00, the defendants were then negotiating with the
Development Bank of the Philippines, and that both defendants, jointly
and severally, promised to return said certificates of stock upon the
approval or disapproval of the loan application; that when disapproval
of said loan application appeared imminent, the defendants again
pleaded with him for the retention of the same ten (10) certificates of
stock because they were negotiating for the purchase of the Bunning
and Company of Tuguegarao for P2,000,000,00, and that they needed
said certificates as part collateral for the transaction; that when those
two transactions failed, he demanded several times of the defendants
for the return to him of the ten (10) certificates aforementioned so that
he could use them, but said demands were of no avail; that in view of
the failure of the defendants to comply with his demands, he is forced
to file the complaint seeking the return to him of said ten (10)
certificates of stock. Under the second cause of action, plaintiff after
reproducing the pertinent averments in the first cause of action, among
which is the averment that he is a judge of the Court of First Instance
of Cavite, further alleged that on October 13, 1968, both defendants
entered into a contract of personal and professional services with him
under the terms of which he was to head defendant corporation's legal
department with the condition that he should render such services only
after his office hours, "even into the dead wee hours of the night and
wherever such services would not run in conflict with his duties as
Judge"; that in consideration of such services, the defendants
undertook to pay him a yearly salary of P35,000.00 from the date of the
contract, but where a case shall have been settled in and out of court,
and defendants shall have won or saved money because of such
settlement, he shall be paid by way of commission ten percent (10%)
of the amount involved in the litigation and/or settlement; that, pursuant
to said contract, he has rendered legal services as head of the legal
department of defendant Omico and has attended to the personal
consultation of defendant Frederick G. Webber until the filing of the
complaint, when, by reason thereof, their official relations were
severed; that the defendants should render the corresponding
accounting of his unpaid commission and salaries, taking into
consideration the partial payments and advances given to him as
salary; that a more detailed specification of the services rendered by
him in favor of the defendants were made in a letter to the defendants,
mailed on May 28, 1973 from his official residence in Cavite City; that
the defendants refused and failed to render such accounting and to
pay his emoluments, in spite of his repeated demands to that effect.
Plaintiff, therefore, prayed that, on the first cause of action, defendants
be ordered to return to him the ten (10) certificates of stock, or, in case
the return thereof cannot be done, to issue in his favor the same
number and amount of certificates of stock as replacement or to pay
him the par value thereof; and, on the second cause of action,
defendants be ordered to render the corresponding accounting of the
amounts due him in accordance with the averments in the complaint,
and to pay him the balance as reflected in the accounting as approved
11
by the court; to pay him moral, exemplary, punitive and afflictive
damages, in such amounts as assessed by the court; to pay him
attorney's fees and costs; and to grant him such other reliefs available
in the premises. 1
Served with the corresponding summons and copies of the complaint,
the petitioners, as defendants therein, on June 10, 1973 filed a motion
to dismiss the complaint on two grounds: namely (1) improper venue,
in that the case was filed in Cavite where plaintiff is not a resident, the
truth being that he is a resident of Quezon City where he has his
permanent family home; and, as to the second cause of action, the
contract of personal and professional services between plaintiff and
defendants was entered into in the City of Manila, and, therefore, the
case should have been filed in Manila in accordance with Section I of
Rule 4 of the Revised Rules of Court; and (2) lack of cause of action, in
that with regard to the stock certificates the same are in the name of
Vicente Resonda; and, with respect to the contract of personal and
professional services wherein it was agreed that the plaintiff shall head
the legal department of defendant Omico Mining & Industrial
Corporation, the same is illegal, void and unenforceable, plaintiff being
a judge of the Court of First Instance who is prohibited by Section 35 of
Rule 138 of the Revised Rules of Court from engaging in private
practice as a member of the Bar. The motion to dismiss contains the
following notice of hearing: têñ.£îhqwâ£
The Clerk of Court
Court of First Instance of Cavite City Branch II
Greetings:
Please include the foregoing motion in the
calendar of the Honorable Court on Saturday,
June 16, 1973, and have the same submitted for
resolution without further arguments on the part of
the defendants.
(Sgd.) JOSE F. PEREZ
COPY FURNISHED:
(By registered Mail)
Atty. Jaime B. Lumasag, Counsel for the Plaintiff,
5-C Banawe, Quezon City
Attached to the motion is Registry Receipt No. 45297 issued by Manila
Central Post Office on June 9, 1973.2
On June 16, 1973, the date set for the hearing of the motion to dismiss,
neither the parties nor their respective counsels appeared in court. But
the court, noting that there was no clear showing in the record that
notice of hearing of said motion had been served upon counsel for the
plaintiff, issued on June 18, 1973 an Order postponing consideration of
the motion "until counsel for the defendants shall have shown to the
satisfaction of the Court that a copy of his motion to dismiss has been
furnished counsel for the plaintiff." The Order adds that "in said event,
the Clerk of Court shall calendar anew the hearing of the motion to
dismiss furnishing a copy of the date of the bearing to counsels for the
plaintiff and for the defendants."3 Copies of said Order were sent to the
respective counsels of the parties on June 10, 1973 by registered
mail.4
While the motion to dismiss was pending resolution by the court
because defendants had not yet presented to the court the required
proof of service, plaintiff, on January 11, 1974, filed a petition to
declare the defendants in default and to allow him to present his
evidence ex parte. In said petition, plaintiff alleged, in substance, that
defendants had been served with summons and copies of the
complaint on June 8, 1973; that as of January 11, 1974, or after a
lapse of seven (7) months from the service of summons, defendants
had not filed their answer to the complaint; that the defendants had
filed a motion to dismiss the complaint on June 10, 1973, the hearing
of which had been set to June 16, 1973 but the notice of said hearing
was addressed to the Clerk of Court, not to Atty. Jaime B. Lumasag,
counsel for plaintiff; that the Revised Rules of Court provides that
petitions and motions should be sent to opposing parties who should
be notified of the date of the hearing thereof; that the notice of hearing
in defendants' motion to dismiss is fatally defective, it being addressed
to the Clerk of Court; and that because of that defect, defendants'
motion to dismiss is a "useless piece of paper", citing Philippine
Advertising Counselors, Inc. v. Hon. Pedro A. Revilla, G.R. No. L-
31869, promulgated on August 8, 1973.5 By Order of January 15,
1974, the court granted the petition6 and, consequently, it received ex
parte the evidence of the plaintiff and rendered judgment thereon on
January 29, 1974, the dispositive portion of which reads: têñ.£îhqwâ£
WHEREFORE, judgment is hereby rendered in
favor of the plaintiff and against the defendants
directing the latter:
1. To return to the plaintiff ten (10) certificates of
stock corresponding to 100,000 shares of the
Omico Mining and Industrial Corporation in the
name of Vicente Resonda bearing Nos. 13437 up
to and including 13446 or in lieu thereof, to deliver
to said plaintiff new certificates of the above-
named corporation of equivalent value;
2. To pay to the plaintiff the total amount of One
Million One Hundred Eighty-six Thousand Four
Hundred Thirty-five Pesos and Eleven centavos
(P1,186,435.11) at the legal rate of interest until
said amount is fully paid;
3. To pay to the plaintiff by way of attorney's fees
the amount of Ten Thousand Pesos (P10,000.00);
4. To pay the costs."7
On March 5, 1974, defendants filed a motion for reconsideration,
advancing the arguments (1) that the judgment is contrary to law and
the liberal interpretation of the Revised Rules of Court, in that they
have complied with the provisions of Section 10 of Rule 13, Revised
Rules of Court, by stating in the motion to dismiss that a copy thereof
was furnished by registered mail to Atty. Jaime B. Lumasag, counsel
for the plaintiff, and attaching thereto the registry receipt therefor
issued by the Manila Central Post Office; that the purpose of the notice
has been served because as per certification of the post office of
Quezon City, said Atty. Jaime B. Lumasag received the copy of the
Motion to Dismiss before June 16, 1973, the date set for the hearing of
the motion; and that, with respect to the return card, they have not
received the same, hence, they could not comply with the submission
thereof; (2) that the circumstances obtaining in the case do not warrant
the default order which finally paved the way for the rendering of
judgment in favor of the plaintiff, because counsel for the plaintiff had
received a copy of the motion to dismiss one day before the hearing
thereof; that said motion should have been acted upon, considering
that it contains contentious issues which when resolved would show
the complaint to be "nothing but empty claims"; and that the ruling
in Philippine Advertising Counselors, Inc. cannot apply, because the
facts therein are at variance with those of the present case; and (3)
that the defendants have a valid defense and strong evidence to rebut
and/or controvert the claims of the plaintiff as shown by the affidavits of
Jose F. Perez and Hilarion P. Dugenio, legal counsel and corporate
secretary, respectively, of Omico Mining and Industrial Corporation.
The motion contains a notice to counsel for plaintiff that the hearing
thereof has been set for March 15, 1974.8
On March 15,1974, plaintiff Catolico, on his own behalf, filed a motion
to postpone hearing of the motion for reconsideration to April 29, 1974,
to enable him to prepare an intelligible opposition thereto. The motion
does not contain a notice of hearing. It merely states at the foot thereof
that a copy of said motion was furnished Pio R. Marcos and Guillermo
Bandonil, counsel for defendants, without stating how delivery was
effected. 9 But notwithstanding absence of notice of hearing, the court,
considering the absence, of objection thereto on the part of the
defendants, granted the motion for postponement, with the condition
that the defendants be furnished with a copy of the opposition; that
defendants may file their reply to the opposition within fifteen (15) days
from receipt of a copy thereof; and that thereafter the matter be
deemed submitted for resolution. 10
On May 31, 1974, while defendants' motion for reconsideration was
still pending before the court because the defendants had not filed yet
their reply to the opposition as they had not received a copy
thereof, 11 plaintiff Catolico filed a motion for immediate execution of
judgment, alleging, among other things, that said judgment had already
become final and executory because the defendants failed to have the
order of default lifted; that the motion for reconsideration was filed out
of time; that there was a "manifest attempt on the part of the
defendants to delay the proceedings to afford them an opportunity to
have all their assets and shares dissipated by continuous sale of the
same to the prejudice" not only of respondent Catolico but also of
"some forty to fifty creditors who filed complaints against the
defendants for estafa and civil suits for collection amounting to
hundreds of thousands of pesos"; that some 80% of defendants' assets
and properties had already been sold at fantastically low prices to
defraud creditors who had been deceitfully assured by the
management that they are well protected; that the judgment might
become ineffective "due to the notoriously deceptive movements" (sic)
to which the defendants "daily and continuously expose themselves";
and that immediate execution of the judgment is the only protection
that can be rendered to plaintiff under the premises. 12
12
On June 18, 1974, the Court issued simultaneously two (2) Orders,
one denying defendants' motion for reconsideration, 13 and the other
directing the issuance of a writ of execution of its decision of January
29, 1974. In the latter Order, the court appointed the City Sheriff of
Manila, herein respondent Leonardo Alcid, to execute said writ of
execution. 14
On June 19, 1974, defendants filed their notice of appeal to this Court,
an appeal bond and a record on appeal. The record on appeal was
approved on August 27, 1974 only because of the absence of the
respondent Judge from his station, he being then a participant in the
seminar of Judges of Court of First Instance in the Development
Academy of the Philippines at Tagaytay City. 15
On the same date, June 19, 1974, in the afternoon, respondent Sheriff
of Manila, through his Senior Legal Assistant and Acting Executive
Sheriff Dominador Q. Cacpal served a notice of garnishment to the
defendants, together with a writ of execution issued by the respondent
Judge. On July 22, Pio R. Marcos, as President and Chairman of the
Board of Directors of defendant Omico Mining and Industrial
Corporation, wrote a letter to respondent Sheriff asking that the
defendants be given a little chance to exhaust the legal remedies
available to hold in abeyance the execution and garnishment. Among
the reasons presented by Marcos are that defendants were not given a
chance to have their day in court in the motion for immediate execution
of judgment and that they have already appealed from the lower court's
decision and order of immediate execution. 16
Because of the impending execution of the judgment by default which
they believe to be illegal, defendants, on July 25, 1974, filed with this
Court the instant petition praying, among other things, that respondent
Judge be restrained from commanding the City Sheriff of Manila, or his
duly authorized representative, to execute the decision of January 29,
1974. The petition assails mainly the Order of respondent Judge,
declaring the defendants in default, the consequent reception of the
evidence of the plaintiff ex parte and the judgment by default rendered
thereon, as having been made without or in excess of jurisdiction, or
with grave abuse of discretion because said respondent Judge failed to
resolve first the defendants' motion to dismiss. In a resolution dated
July 24, 1974, We required, without giving due course to the petition,
respondents to comment on said petition within ten (10) days from
notice thereof, and, as prayed for, issued a temporary restraining
order. Respondent Judge and private respondent Catolico filed
separate comments. Per resolution dated August 20, 1974, We
resolved to consider their comments as their Answer to the petition.
In his answer, respondent Judge justifies his failure to act on the
aforesaid motion to dismiss the complaint in this wise: têñ.£îhqwâ£
In insisting in their petition that it was obligatory for
this respondent to grant or deny said motion to
dismiss, counsels who filed this petition seem to
be feigning ignorance as to reasons why this
respondent chose to ignore their motion to dismiss
and considered it a mere scrap of paper. It is
humbly submitted that said reasons have been
amply set forth and discussed in the Decision
rendered in Civil Case No. N-1963 (Annex F to the
petition) in accordance with the decision of this
Honorable Tribunal in the case of Philippine
Advertising Counselors, Inc., versus Hon. Pedro
Revilla, et al., G.R. No. L-31869), to this
effect: têñ.£îhqwâ£
'Finally, Section 4, Rule 15 of
the Rules of Court provides
that notice of a motion shall
be served by the applicant to
all parties concerned, at least
three days before the hearing
thereof, together with a copy
of the motion, and of any
affidavits and other papers
accompanying it, and Section
5 of the same rule requires
the motion to be directed to
the parties concerned and to
state the time and place for
the hearing of the motion. A
motion which fails to comply
with these requirements is
nothing but a useless piece of
paper ...' (Emphasis
supplied).
Counsels who filed the instant petition know more
than anybody else that their motion to dismiss did
not comply with the standards required in the
decision above quoted for it was addressed to the
Clerk of Court and not to the party concerned. As
such, said motion to dismiss was but 'a useless
piece of paper' without any legal standing, and,
therefore, could neither be granted nor denied, by
this respondent ....
Subsequently, or on September 6, 1974, private respondent filed a
motion to dismiss said petition on the ground that the remedy of
certiorari and prohibition is no longer available to the herein petitioners,
inasmuch as they had already perfected their appeal. 17 Petitioners
opposed the motion to dismiss on the ground that their appeal is
inadequate to protect their rights for, without the restraining order
issued by this Court, the respondents could have executed the
decision and orders in question. 18
II.
ISSUES
The first issue to be resolved here is whether the respondent Judge
acted without or in excess of jurisdiction or with grave abuse of
discretion in declaring the defendants in default, in receiving plaintiff's
evidence ex parte and in rendering judgment thereon.
The second is whether ordinary appeal, not certiorari and prohibition, is
the proper remedy available to petitioners.
III
1. With regard to the first issue, respondents contend that the motion to
dismiss the complaint is a "useless piece of paper" because the notice
of hearing incorporated therein is addressed to the Clerk of Court, not
to the party concerned, that is, the plaintiff or his counsel, as required
by the rules. We do not agree. As copied verbatim above, the notice of
hearing states the time and place of hearing, and a copy thereof was
sent through registered mail seven (7) days before the date set for the
hearing of the motion but actually received by plaintiff's counsel one (1)
day before said date, as per certification of the Quezon City Post
Office.
To Our mind, what is decisive here is that plaintiff had sufficient notice
of the time and place of the hearing of the motion to dismiss. We have
said in Manila Surety and Fidelity Co., Inc. v. Bath Construction and
Company, 19 "unless the movant sets the time and place of hearing the
court would have no way to determine whether that party agrees to or
objects to the motion, and if he objects, to hear him on his objection,
since the Rules themselves do not fix any period within which he may
file his reply or opposition." In the Matusa case, We said that granting
that the notice is defective for failure to specify the exact date when the
motion to dismiss should be heard, the Court, in taking cognizance of
the motion on the date set for the hearing thereof, cured whatever iota
of defect such a pleading may have had, especially if it is taken into
account that upon receipt of the motion to dismiss, plaintiff was
properly notified of the existence of said pleading. 20 Indeed, We
declared that there may be cases where the attendance of certain
circumstances "may be considered substantive enough to truncate the
adverse literal application of the pertinent rules violated." 21 The case at
bar is such an instance, because private respondent had sufficient
notice of the place, time and date when the motion to dismiss was to
be heard. It is, therefore, evident from the foregoing that the
respondent Judge acted with grave abuse of discretion when he
declared the petitioners in default. The motion to dismiss was pending
before the court when such declaration was made, and it is generally
irregular to enter an order of default while a motion to dismiss remains
pending and undisposed of. 22 The irregularity of the order of default is
evident from the fact that when the petitioners were declared in default,
their time for filing an answer had not yet commenced to run anew
because on said date, their counsel had not yet received any notice of
the action taken by the court on their motion to dismiss. Under Section
4 of Rule 16 of the Revised Rules of Court, if the motion to dismiss is
denied or if the determination thereof is deferred, the movant shall file
his answer within the period prescribed by Rule 11, computed from the
time he received notice of the denial or deferment, unless the court
provides a different period. In other words, the period for filing
responsive pleading commences to run all over again from the time the
defendant receives notice of the denial or deferment of his motion to
dismiss. Inasmuch as petitioners were declared in default while their
motion to dismiss was still pending resolution, they were, therefore,
incorrectly declared in default, and the holding of the trial of the case
on the merits, in their absence, without due notice to them of the date
of hearing, was a denial of due process. 23 Consequently, the order of
default, the judgment and the order of execution are patent nullities.
In connection with the foregoing, We notice the ambivalence with
which the respondent Judge applied the rules. Thus, while he was
13
unduly strict regarding the requirements of notice of hearing to the
defendants, he was, at the same time, unduly liberal with respect to the
plaintiff. For instance, plaintiff's Motion for Reconsideration did not
contain any notice of hearing, or proof of service thereof, or even the
address of the plaintiff who signed personally said motion.
Notwithstanding the absence of these data, respondent Judge readily
granted the motion. Then there is plaintiff's motion for immediate
execution of judgment pending appeal. Although it was apparent that a
copy of said motion could not have been received by the counsel for
the defendants at their office in Baguio City prior to the date of the
hearing on June 3, 1974, considering that it was only on May 29, 1974
when a copy of said motion was allegedly posted by registered mail at
the Manila Post Office, respondent Judge did not require, as he did
with respect to defendants' motion to dismiss, proof of service of the
notice thereof. Such conduct falls short of the requirement that the
official conduct of a judge should not only be free from impropriety, but
also from the appearance of impropriety..
2. There is, moreover, the consideration that the challenged judgment
seeks to enforce a contract which is patently void because it is contrary
to law and public policy. The contract of professional services entered
into between private respondent and the petitioners, while the former
was still a judge of the Court of First Instance, constituted private
practice of law and in contravention of the express provision of Section
35 of Rule 138 of the Revised Rules of Court. The aforecited Rule was
promulgated by this Court, pursuant to its constitutional power to
regulate the practice of law. It is based on sound reasons of public
policy, for there is no question that the rights, duties, privileges and
functions of the office of an attorney-at-law are so inherently
incompatible with the high official functions, duties, powers, discretions
and privileges of a judge of the Court of First Instance. 24 This inhibitory
rule makes it obligatory upon the judicial officers concerned to give
their full time and attention to their judicial duties, prevent them from
extending special favors to their own private interests and assure the
public of their impartiality in the performance of their functions. These
objectives are dictated by a sense of moral decency and the desire to
promote the public interest.
Private respondent should have known or ought to know, that when he
was elevated to the Bench of the Court of First Instance as a judge
thereof, his right to practice law as an attorney was suspended and
continued to be suspended as long as he occupied the judicial
position. 25
It is evident, therefore, that the aforesaid contract is void because a
contract, whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy, is considered inexistent
and void from the beginning. 26
3. On the question of the remedy availed of by petitioners, respondents
maintain that where appeal is available, as it has been shown to be
available to the petitioners when they perfected their appeal in Civil
Case No. N-1963, the remedy of certiorari and/or prohibition cannot be
resorted to. In resolving this question, We advert to Our ruling
in Matute v. Court of Appeals, supra, where We stated: têñ.£îhqwâ£
In opposing the instant petition, the plaintiff-
respondent contends that the remedy of the
defendant petitioner is not a petition for certiorari
but an ordinary appeal pursuant to Rule 41,
Section 2, paragraph 3 which reads: têñ.£îhqwâ£
'A party who has been
declared in default may
likewise appeal from the
judgment rendered against
him as contrary to the
evidence or to the law, even if
no petition for relief to set
aside the order of default has
been presented by him in
accordance with Rule 38.' .
We do not agree. The remedy provided for in the
above-quoted rule is properly, though not
exclusively, available to a defendant who has
been validly declared in default. It does not
preclude a defendant who has
been illegally declared in default from pursuing a
more speedy and efficacious remedy, like a
petition for certiorari to have the judgment by
default set aside as a nullity.
It should be emphasized that a defendant who is
properly declared in default is differently situated
from one who is improvidently declared in default.
The former irreparably loses his right to participate
in the trial, while the latter retains such a right and
may exercise the same after having the order of
default and the subsequent judgment by default
annulled and the case remanded to the court of
origin. Moreover the former is limited to the
remedy set forth in section 2, paragraph 3 of Rule
41 by virtue of which he can contest only
the judgment by default on the designated ground
that it is contrary to the evidence or the law; the
latter, however, has the option to avail of the same
remedy or to forthwith interpose a petition for
certiorari seeking the nullification of the order of
default even before the promulgation of a
judgment by default, or in the event that the latter
has been rendered, to have both court decrees —
the order of default and the judgment by default —
declared void. The defendant-petitioner's choice of
the latter course of action is correct for he
controverts the judgment by default not on the
ground that it is not supported by evidence or it is
contrary to law, but on the ground that it is
intrinsically void for having been rendered
pursuant to a patently invalid order of default..
Granting, however, that an appeal is open to the
defendant-petitioner, the same is no longer an
adequate and speedy remedy considering that the
court a quo had already ordered the issuance of a
writ of execution and the carrying out of such writ
loomed as a great probability. This is in
consonance with the doctrine enunciated in Vda.
de Saludes v. Pajarillo and Bautista (78 Phil. 754)
wherein this Court held that an 'appeal under the
circumstances was not an adequate remedy there
being an order or execution issued by the
municipal court.' Hence, the rule that certiorari
does not lie when there is an appeal is relaxed
where, as in the instant case, the trial court had
already ordered the issuance of a writ of
execution.
The above ruling applies with cogent force in the present case..
WHEREFORE, certiorari is granted and the default order, judgment
and writ of execution rendered by the respondent Judge in Civil Case
No. N-1963 are hereby set aside, and the respondent Judge is ordered
to hear and decide the motion to dismiss the complaint, taking into
account Our foregoing opinion. The temporary restraining order is
made permanent, with costs against private respondent.
Makalintal, C.J., Fernando, Teekankee, Barredo, Makasiar, Esguerra,
Fernandez and Aquino, JJ., concur.1äwphï1.ñët
Castro, J., concurs in the result.
Munoz Palma, J., is on leave.
G.R. No. L-4663             May 30, 1951
FERDINAND E. MARCOS and MANUEL CONCORDIA, petitioners,
vs.
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, ET
AL., respondents.
x---------------------------------------------------------x
G.R. No. L-4671             May 30, 1951
MANUEL A. CONCORDIA and FERDINAND E.
MARCOS, petitioners,
vs.
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, ET
AL., respondents.
Petitioners in their own behalf.
Judge Advocate General Fred Ruiz Castro and Leonardo R. Lucena
for respondents.
FERIA, J.:
These are two special civil actions of mandamus instituted by the same
petitioners against the respondents General Court-Martials composed
14
each of different members or officers of the Philippine Army, in which it And in re Davison, 21 F. 618, 620, it was held:
is alleged that the respondents Military Tribunals excluded unlawfully
the petitioners from the enjoyment of their right to appear as counsel
That court-martial are lawful tribunals existing by the same
for the accused prosecuted before said tribunals, to which the
authority as civil courts of the United States, have the same
petitioners are entitled because they are attorneys duly admitted to
plenary jurisdiction in offenses by the law military as the
practice law in the Philippine Courts, on the ground that they are
latter courts have in controversies within their cognizance,
disqualified or inhibited by section 17, Article 17 of the Constitution to
and in their special and more limited sphere are entitled to as
appear as counsel for said defendants. Said Section 17 reads as
untrammeled an exercise of their powers.
follows:

And lastly, American Jurisprudence says:

SEC. 17. No Senator or Member of the House of
Representatives shall directly or indirectly be financially
interested in any contract with the Government or any
subdivision or instrumentality thereof, or in any franchise or
special privilege granted by the Congress during his term of
office. He shall not appear as counsel before the Electoral
Tribunals or before any court in any civil case wherein the
Government or any subdivision or instrumentality thereof is
the adverse party, or in any criminal case wherein an offer or
employee of the Government is accused of an offense
committed in relation to his office. . . ..
The only question for this Court to determine in these two cases is
whether the prohibition contained in the above quoted section 17 of our
Constitution is applicable to the petitioners.
SEC. 99. Representation by Counsel. — It is the general rule
that one accused of the crime has the right to be represented
before the court by counsel, and this is expressly so
declared by the statues controlling the procedure in court-
martial. It has been held that a constitutional provision
extending that right to one accused in any trial in any court
whatever applies to a court-martial and gives the accused
the undeniable right to defend by counsel, and that a court-
martial has no power to refuse an attorney the right to
appear before it if he is properly licensed to practice in the
courts of the state. (Citing the case of State ex rel
Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American
Jurisprudence 253)

The fact that a judgment of conviction, not of acquittal, rendered by a

We are of the opinion and therefore hold that it is applicable, because
court-martial must be approved by the reviewing authority before it can
the words "any court" includes the General Court-Martial, and a court-
be executed (Article of War 46), does not change or affect the
martial case is a criminal case within the meaning of the above quoted
character of a court-martial as a court. A judgment of the Court of First
provisions of our Constitution.
Instance imposing death penalty must also be approved by the
Supreme Court before it can be executed.
It is obvious that the words "any court," used in prohibiting members of
Congress to appear as counsel "in any criminal case in which an
That court-martial cases are criminal cases within the meaning of
officer or employee of the Government is accused of an offense
Section 17, Article VI, of the Constitution is also evident, because the
committed in relation to his office," refers, not only to a civil, but also to
crimes and misdemeanors forbidden or punished by the Articles of War
a military court or a Court-Martial. Because, in construing a
are offenses against the Republic of the Philippines. According to
Constitution, "it must be taken as established that where words are
section 1, Rule 106, of the Rules of Court, a criminal action or case is
used which have both a restricted and a general meaning, the general
one which involves a wrong or injury done to the Republic, for the
must prevail over the restricted unless the nature of the subject matter
punishment of which the offender is prosecuted in the name of the
of the context clearly indicates that the limited sense is intended." (11
People of the Philippines; and pursuant to Article of War 17, "the trial
American Jurisprudence, pp. 680-682).
advocate of a general or special court-martial shall prosecute (the
accused) in the name of the People of the Philippines."
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine
Army,* 43 Off. Gaz., 855, we did not hold that the word "court" in
Winthtrop, in his well known work "Military Law and Precedents' says
general used in our Constitution does not include a Court-Martial; what
the following:
we held is that the words "inferior courts" used in connection with the
appellate jurisdiction of the Supreme Court to "review on
appeal certiorari or writ of error, as the law or rules of court may In regard to the class of courts to which it belongs, it is lastly
provide, final judgments of inferior courts in all criminal cases in which to be noted that the court-martial is strictly a criminal court. It
the penalty imposed is death or life imprisonment," as provided for in has no civil jurisdiction whatever; cannot enforce a contract,
section 2, Article VIII, of the Constitution, do not refer to Courts-Martial collect a debt, or award damages in favor of an
or Military Courts. individual. . . . Its judgment is a criminal sentence not a civil
verdict; its proper function is to award punishment upon the
ascertainment of guilt. (Winthrop's Military Law and
Winthrop's Military Law and Precedents, quoted by the petitioners and
Precedents, Vols. 1 & 2, 2nd Ed., p. 55.)
by this Court in the case of Ramon Ruffy et al vs. Chief of Staff of the
Philippine Army, supra, has to say in this connection the following:
In N. Y. it was held that the term "criminal case," used in the
clause, must be allowed some meaning, and none can be
Notwithstanding that the court-martial is only an
conceived, other than a prosecution for a criminal offense.
instrumentality of the executive power having no relation or
Ex parte Carter. 66 S. W. 540, 544, 166 No. 604, 57 L.R.A.
connection, in law, with the judicial establishments of the
654, quoting People vs. Kelly, 24 N.Y. 74; Counselman vs.
country, it is yet, so far as it is a court at all, and within its
Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words
field of action, as fully a court of law and justice as is any civil
and Phrases, Vol. 10, p. 485.)
tribunal. As a court of law, it is bound, like any court, by the
fundamental principles of law, and, in the absence of special
provision of the subject in the military code, it observes in Besides, that a court-martial is a court, and the prosecution of an
general the rules of evidence as adopted in the common-law accused before it is a criminal and not an administrative case, and
courts. As a court of justice, it is required by the terms of its therefore it would be, under certain conditions, a bar to another
statutory oath, (art. 84.) to adjudicate between the U.S. an prosecution of the defendant for the same offense, because the latter
the accused "without partiality, favor, or affection," and would place the accused in jeopardy, is shown by the decision of the
according, not only to the laws and customs of the service, Supreme Court of the United States in the case of Grafton vs. United
but to its "conscience," i.e. its sense of substantial right and States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following
justice unaffected by technicalities. In the words of the was held:
Attorney General, court-martial are thus, "in the strictest
sense courts of justice. (Winthrop's Military Law and
If a court-martial has jurisdiction to try an officer or soldier for
Precedents, Vol. 1 and 2, 2nd Ed., p. 54.)
a crime, its judgment will be accorded the finality and
conclusiveness as to the issues involved which attend the
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with judgment of a civil court in a case of which it may legally take
approval, the court said: cognizance; and restricting our decision to the above
question of double jeopardy, we judge that, consistently with
the above act of 1902, and for the reasons stated, the
In the language of Attorney General Cushing, a court-martial
plaintiff in error, a soldier in the Army, having been acquitted
is a lawful tribunal existing by the same authority that any
of the crime of homicide, alleged to have been committed by
other exists by, and the law military is a branch of law as
him in the Philippines, by a military court of competent
valid as any other, and it differs from the general law of the
jurisdiction, proceeding under the authority of the United
land in authority only in this: that it applies to officers and
States, could not be subsequently tried for the same offense
soldiers of the army but not to other members of the body
in a civil court exercising authority in that territory.
politic, and that it is limited to breaches of military duty.
15
Furthermore, taking into consideration the apparent intention or
purpose of the framers of our Constitution in enacting section 17,
Article VI of the Philippine Constitution, it is obvious that there exist the
same if not more reason for prohibiting the appearance of members of
the Senate and the House of Representatives as counsel for the
accused in court-martial, as for inhibiting them to appear as such in
civil courts, because the independence of civil court's judges is
guaranteed by our Constitution. Ubi eadem ibi eadem lex.
Wherefore, as the petitioners are disqualified to appear as counsel for
the accused in court-martial, the respondents did not unlawfully
exclude them from the enjoyment of any right, and hence the petitions
for mandamus in these two cases are denied with costs against the
petitioners.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, and Bautista Angelo,
JJ., concur.
MONTEMAYOR, J.:
I disqualify myself.
G.R. No. L-53869 March 25, 1982
RAUL A. VILLEGAS, petitioner,
vs.
ASSEMBLYMAN VALENTINO L. LEGASPI, COURT OF FIRST
INSTANCE OF CEBU, BRANCH 11, presided by HON. FRANCISCO
P. BURGOS, District Judge; BRIGIDA VERA CRUZ, joined in and
assisted by her husband JOSE VERA CRUZ, and PRIMITIVO
CANIA JR., respondents.
G.R. No. L-51928 March 25, 1982
EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P.
REYES, ANTONIO G. PUYAT, JAIME R. BLANCO, RAFAEL R.
RECTO and REYNALDO L. LARDIZABAL, petitioners,
HON. SIXTO T. J. DE GUZMAN, JR., as Associate Commissioner
of the Securities & Exchange Commission, EUSTAQUIO T. C.
ACERO, R. G. VILDZIUS ENRIQUE M. BELO, MANUEL G. ABELLO,
SERVILLANO DOLINA, JUANITO MERCADO and ESTANISLAO A.
FERNANDEZ, respondents.
MELENCIO-HERRERA, J.:
These two cases (L-53869 and L-51928) filed in May, 1980 and
September, 1979, respective, involved the prohibition in Section 11,
Article VIII of the 1973 Charter, which used to read:
Sec. 11. No member of the National Assembly
shall appear as counsel before any court inferior to
a court with appellate jurisdiction, ...
The antecedents facts follows:
L-53869
On September 27, 1979, a complaint for annulment of bank checks
and damages was filed by Raul A. Villegas against the Vera Cruz
spouses and Primitivo Cania, Jr. (private respondents) before the
Court of First Instance of Cebu, Branch XVI, then presided by Hon.
Ceferino E. Dulay (Civil Case No. 431-L). An answer, dated October
11, 1979, was filed by private respondents through their counsel,
Assemblyman Valentino 1. Legaspi, a member of the Batasang
Pambansa from the province of Cebu. Raul A. Villegas "challenged"
the appearance of Assemblyman Legaspi as counsel of record on the
ground that he is barred under the Constitution from appearing before
Courts of First Instance, which are essentially trial Courts or Courts of
First Instance, which are essentially trial Courts or Courts of First
Instance, which are essentially trial Courts or Courts of original
jurisdiction. After the Opposition and Reply to the Opposition were
filed, Judge Dulay issued an Order inhibiting himself from the aforesaid
case because Assemblyman Legaspi was likewise the lawyer of his
wife in two pending cases. The case was re-raffled and redocketed as
Civil Case No. R-18857, and transferred to Branch II, presided by
Judged Francisco P. Burgos (respondent Court).
In an Order, dated February 27, 1980, Judge Burgos denied the
disqualification of Assemblyman Legaspi, as well as the Motion for
Reconsideration filed thereafter. Hence, this recourse to certiorari and
Prohibition.
A temporary Restraining Order was issued ex-parte by this Tribunal on
May 22, 1980 enjoining respondent Court from acting in Civil Case No.
R-18857 below.
L-51928
Edgardo P. Reyes filed, on July 3, 1979, Civil Case No. 33739 before
the Court of First Instance of Rizal (Pasig), Branch XXI, against N. V.
Verenigde Buinzenfabrieken Excelsior-De Maas and private
respondent Eustaquio T.C. Acero to annul the sale of Excelsior's
shares in the International Pipe Industries Corporation (IPI) to
Eustaquio T.C Acero, allegedly on the ground that, prior thereto, the
same shares had already been sold to him (Reyes). Assemblyman
Estanislao Fernandez entered his appearance as counsel for
Excelsior. This appearance was questioned on the ground that it was
barred by Section 11, Article VIII of the 1973 Constitution, above-
quoted.
Initially, this case (L-51928) was filed as a Supplemental Petition to L-
51122 (Eugenio Puyat, et als. Hon. Sixto T.J. de Guzman), but this
Court ordered it docketed separately. And since the issue involved is
on all fours with L-53869, the Court opted to resolve Case No. L-51928
jointly with L-53869 instead of with L-51122 as originally directed.
The novel issue for determination is whether or not members of the
Batasang Pambansa, like Attorneys Valentino L. Legaspi and
Estanislao A. Fernandez, can appear as counsel before Courts of First
Instance.
A comparison of Section 11, Article VIII, of the 1973 Constitution
prohibiting any Assemblyman from appearing as counsel "before any
Court inferior to a Court with appellate jurisdiction", and the "similar"
provision of Section 17, Article VI, of the 1935 Charter is elucidating.
The last sentence of the latter provision reads:
... No member of the Commission on
Appointments shall appear as counsel before any
Court inferior to a collegiate Court of appellate
jurisdiction.
A significant amendment is the deletion of the term "collegiate".
Further, the limitation now comprehends all members of the Batasang
Pambansa, and is no longer confined to members of the Commissions
on Appointments, a body not provided for under the 1973 Constitution.
Under the amendment to Article VIII of the 1973 Constitution, ratified in
a national plebiscite held on April 7, 1981, Section 11 now reads:
SEC. 11. No member of the Batasang Pambansa
shall appear as counsel before any court without
appellate jurisdiction, ...
The term 'collegiate" remains deleted , and the terminology is now
"Court without appellate jurisdiction."
Although the cases at bar were filed prior to the aforesaid amendment,
they should be resolved under the amended provision. We abide by
the proposition that "as a general rule, the provisions of a new
Constitution take effect immediately and become operative on pending
litigation." 1
Clearly, what is prohibited to a Batasang Pambansa member is
"appearance as counsel" "before any Court without appellate
jurisdiction.
"Appearance" has been defined as "voluntary submission to a court's
jurisdiction". 2 "Counsel" means "an adviser, a person professionally
engaged in the trial or management of a cause in court; a legal
advocate managing a case at law; a lawyer appointed or engaged to
advise and represent in legal matters a particular client, public officer,
or public body". 3 Ballantine's Law Dictionary says a counsel is
"counselor, an attorney at law; one or more attorneys representing
parties in an action". 4 Thus, "appearance as counsel" is a voluntary
submission to a court's jurisdiction by a legal advocate or advising
lawyer professionally engaged to represent and plead the cause of
16
another. This is the common, popular connotation of this word which
the Constitution must have adopted. In one case, 5 in resolving the
question of what constitutes 'appearance as an advocate," the Court
held that "advocate" the Court held that "advocate" means one who
pleads the cause of another before a tribunal or judicial court, a
counselor.
Judging from the prescribed criteria, there should be no question that
Assemblyman Valentino L. Legaspi, in preparing the Answer for private
respondent-spouses in Civil Case No. R-18857 before the Court of
First Instance of Cebu, Branch II, appears as their counsel. Similarly,
Assemblyman Estanislao A. Fernandez appears as counsel for
Excelsior in Civil Case No. 33739 of the Court of First Instance of Rizal
(Pasig), Branch XXI. They represent and plead the cause of another
before a Court of justice.
The next poser then arises: are the Courts of First Instance, where
Assemblyman Legaspi and Fernandez, respectively, appear as
counsel of record, Courts with appellate jurisdiction?
There are authorities to the effect that the essential criterion of
appellate jurisdiction is that it revises and corrects the proceedings in a
case already instituted and does not create that cause 6 Or, that it
necessarily implies that the subject-matter has been instated in and
acted upon by some other court whose judgment or proceedings are to
be reviewed. 7 In an early Philippine case, 8 it was held to mean
jurisdiction to review the judgment of an inferior court. And, that it calls
for and demands previous legitimate jurisdiction by a court of origin. 9
By law, Courts of First Instance are Courts of general original
jurisdiction. 10 However, under the same statute, their jurisdiction has
been stated to be of two kinds: (a) original and (b) appellate. 11 They
have appellate jurisdiction over all cases arising in City and Municipal
Courts in their respective provinces except over appeals from cases
tried by Municipal judges of provincial capatals or City Judges
pursuants to the authority granted under the last paragraph of Section
87 of the Judiciary Act. 12
It is rather clear that Courts of First Instance, by virtue of a specific
bestowal by the Judiciary Act of 1948, as amended, can be Courts with
appellate jurisdiction. And, by the deliberate omission of the word
"collegiate" in both the original and amended Section 11, Article VIII of
the 1973 Constitution, the obvious intention of the framers is that
Courts of First Instance, as appellate Tribunals, no longer fall within the
ambit of the previous prohibition. They are single-Judge Courts with
appellate jurisdiction from decisions and orders of City and Municipal
Courts. 13 Stated otherwise, under the amended proviso, Courts of First
Instance are not Courts without appellate jurisdiction.
It is contended, however, that the Courts of First Instance in these two
cases took cognizance of the suits in the exercise of their exclusive
original and not appellate jurisdiction, hence, Assemblymen Fernandez
and Legaspi are still prohibited from appearing before said Courts as
counsel. There is merit to this contention.
It should be borne in mind that Courts of First Instance have dual
"personality". Depending on the case before it, said Courts can be
either of appellate or original jurisdiction. The question then to be
resolved is whether or not Assemblymen can appear as counsel before
Courts of First Instance in cases originally filed with them.
We are of the considered opinion that, to render effective the
Constitutional provision, appearance by legislators before Courts of
First Instance should be limited to cases wherein said Courts exercise
appellate jurisdiction. This is true to the time-honored principle that
whatever is necessary to render effective any provision of a
Constitution, whether the same be a prohibition or a restriction, must
be deemed implied and intended in the provision itself. 14
It bears repeating that under Section 17, Article VI of the 1935 Charter,
it was provided that members of the Commission on Appointments
shall not "appear as counsel before any Court inferior to a collegiate
Court of appellate jurisdiction." The intent was clear that members of
the Commission on Appointments shall not "appear as counsel before
any Court inferior to a collegiate Court of appellate jurisdiction." The
intent was clear that members of the Commission on Appointments
could not appear before Courts of First Instance. Uppermost in the
minds of the framers was "appellate jurisdiction" more than Court.
Under Section 11, Article VIII of the 1973 Constitution, the scope of the
prohibition was expanded to embrace all members of the National
Assembly who were barred from "appear(ing) as counsel before any
Court without appellate jurisdiction." Consistently, the principal criterion
is "appellate jurisdiction." So that, when a legislator appears in
an original case filed with a Court with "appellate jurisdiction."
Appellate practice is all that is permitted because of the admitted
predominance of lawyers in the legislature. 15 Their office has always
favored them with the influence and prestige that it carried. Today, as
before, it is only "appellate practice" that is allowed with the significant
difference that, this time, the Court need not be a collegial body. This
so because with the removal of the legislative power to review
appointments the source of power and influence that members of the
National Assembly could unduly exert in the exercise of the legal
profession has been greatly minimized.
This is a situation where the restricted meaning must prevail over the
general because the nature of the subject matter of the context clearly
indicates that the limited sense is intended. 16 In fact, the original
emandement proposed by Antonio V. Raquiza, Delegate of the First
District, Ilocos Norte, in Resolution No. 345 entitled "Prohibiting
Members of the National Assembly to Use Their Office As a Means of
Promoting Sel-Interest" — was to bar a National Assembly member
from appearing as counsel before any Court. In the "Whereas" clauses,
that proposal was believed to be an "improvement" over Section 17,
Article VI of the 1935 Constitution and the purpose of the proposed
amendement was explained as follows:
xxx xxx xxx
2. The Constitutional provision enumerates the
kind of court or administrative cases where a
legislator cannot appear. In our proposal he is
absolutely barred because it is feared that the
practice of his profession will interfere with the
performance of his duties or that because the
power of his office might influence the
administration of justice.
... (Emphasis supplied) 17
The co-author of Resolution No. 345. Delegate Leocadio E. Ignacio
from the lone District of Isabela, and Floor Leader of the 1971
Constitutional Convention, elucidated further on the purpose behind
the prohibition when he wrote in his Position Paper that 'The prohibition
against appearing as counsel is necessary because of the under
influence which members of Congress enjoy when they practice before
the Courts and especially before administrative agencies. It is an
accepted fat that our legislature is composed of a predominance of
practicing lawyers, and who are therefor expected to be naturally not
averse to exerting all influence that they can muster in the pursuit of
their profession." Continuing, he said: "The inability to practice as
counsel ... should be part of the sacrifices entailed in running for the
position of lawmaker. 18 The amendement proposed by Delegate
Gonzalo O. Catan, Jr. of Negros Oriental even went further: "No
member of the National Assembly shall, during his term of office,
appear as counsel, directly or indirectly, in any Court or administrative
body ..." 19 Delegate Emerito M. Salva from the Second District, Ilocos
Norte, substituted his own amendment, thus:
Section 13. No member of the National Assembly
shall, during his term of office, practice directly or
indirectly any occupation or profession or be
allowed to engage directly or indirectly in any
trade, business, or industry. 20
and explained:
10.2. Explaining the substitute amendment,
Delegate Salva said that the assemblymen should
render full-time service to the national. He pointed
out that they should be barred from the practice of
their respective professions since they would
reasonably be compensated for devoting their time
to the work of the National Assembly. 21
While Section 11, Article VIII, as finally adopted by the Constitutional
Convention, did not carry the several amendments proposed, they are
reflective of the sentiment prevailing at the 1971 Constitutional
Conventional, and reinforce the condition that appearance as counsel
by Assemblymen was meant to be confined to appellate practice and
not unlimited practice before Courts of First Instance. That sentiment
has been carried over the amendment ratified in the April, 1981
plebiscite. For, there is no substantial difference between "Court
inferior to a Court with appellate jurisdiction" (the original 1973
provision) and "Court without appellate jurisdiction' (the amended
provision).
The objective of the prohibition, then and now, is clearly to remove any
possibility of undue influence upon the administration of justice, to
eliminate the possible use of office for personal gain, to ensure
17
impartiality in trials and thus preserve the independence of the
Judiciary. The possible influence of an Assemblyman on a signed
Judge of the Court of First Instance, though not entirely removed, is
definitely diminished where the latter Court acts in the exercise of its
appellate instead of original jurisdiction. The upper hand that a party
represented by an Assemblyman by virtue of his office possesses is
more felt and could be more feared in original cases than in appealed
cases because the decision or resolution appealed from the latter
situation has already a presumption not only of regularity but also of
correctness in its favor.
In fine, "appellate practice" is an intended qualification dictated by
principles of reason, justice and public interest.
The limited application to "appellate practice" is a view-point favored by
constitutionalist of eminence, Chief Justice Enrique M. Fernando, in his
scholarly work "The Constitution of the Philippine, 22 where he said:
It is to be noted that at present he may appear as
counsel in any criminal case, but he cannot do so
before any administrative body. Also, while it is
only appellate practice that is allowed a member
of the National Assembly, formerly, such a
limitation applied solely to a Senator or
Representative who was in the Commission on
Appointments, a body abolished under the present
Constitution. Those differences should be noted
(Emphasis supplied) 23
Chief Justice Enrique M. Fernando also expounded on the reason
behind the Constitutional prohibition, thus:
... The need for it was felt by the 1934
Constitutional Convention, a sentiment shared by
the last Constitutional Convention, because of the
widespread belief that legislators found it difficult
to resist, as perhaps most men, the promptings of
self-interest. Clearly, the purpose was and is to
stress the fiduciary aspect of the position. There is
thus fidelity to the maxim that a public office is a
public trust. ... 24
Since the respective Courts of First Instance, before which
Assemblymen Legaspi and Fernandez appeared as counsel, were
acting in the exercise of original and not appellate jurisdiction, they
must be held barred from appearing as counsel before said Courts in
the two cases involved herein.
WHEREFORE, granting the Writs prayed for, the Order issued on
February 27, 1980 by the Court of First Instance of Cebu, Branch II, in
Civil Case No. R-18857, is hereby set aside, and Attorneys Estanislao
A. Fernandez and Valentino Legaspi hereby declared prohibited from
appearing as counsel before the Court of First Instance of Rizal
(Pasig), Branch XXI, in Civil Case No. 33739, and before the Court of
First Instance of Cebu, Branch II, in Civil Case No. r-18857,
respectively. The Restraining Order issued heretofore in L-53869 is
hereby made permanent.
No costs in either case.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion, Jr.,
Fernandez, Guerrero, Abad Santos, De Castro, Ericta, Plana and
Escolin, JJ., concur.
Aquino, J., took no part.
G.R. No. 14576           September 6, 1918
In Re VICENTE SOTTO.
Vicente Sotto in his own behalf.
Attorney-General Paredes for the Government.
STREET, J.:
Complaints having heretofore been laid before this court charging the
respondent, Vicente Sotto, an attorney practicing before this bar, with
unprofessional conduct, said complaints were by resolution of the court
referred to the Attorney-General for investigation. Upon November 30,
1917, the Attorney-General, after inquiring into said charges, reported
that the charges were in his opinion well-founded and recommended
the institution of disbarment proceedings under section 24 of the Code
of Civil Procedure. The respondent was thereupon notified of said
report; and, after he had put in his reply, evidence was taken, pursuant
to our resolution of December 14, 1917, before the clerk of the this
court. The matter is now before us for consideration upon the evidence
so taken and the arguments submitted in the form of memoranda by
the Attorney-General for the Government, and by Sotto, as respondent.
The charges involved in the report of the Attorney-General were
primarily four in number, to which the Attorney-General has added a
fifth, based upon matters connected with the present proceeding itself.
The four original charges are based upon four distinct transactions;
and, in order that their nature may be fully understood, we herewith set
forth in detail the facts connected with three of these transactions,
namely, the first, third, and fourth. The other two charges will be dealt
with more summarily at the end of our detailed statement.
On June 16, 1917, Natalia Enriquez of Paombong, Bulacan, sold to
Santiago V. SyJuco of Malabon, Rizal, two parcels of land. The
contract of sale was embodied in a document duly acknowledged
before a notary public. For some reason or other, the vendor, on or
about the first day of August, 1917, instituted an action against the
vendee for the purpose of securing the rescission of said contract. The
plaintiff's attorney of record in this proceeding was one Jose Galan.
While the action was pending the respondent, Attorney Vicente Sotto,
intervened in representation of the plaintiff. On August 10, 1917, he
went to the house of SyJuco in Malabon and attempted to procure his
consent to the rescission of the contract above-mentioned and
endeavored to induce him to sign for that purpose a document already
prepared rescinding said contract. As SyJuco was reluctant to rescind
the contract, the respondent, Vicente Sotto, intimidated and threatened
him, telling him that unless he signed such document the respondent
would procure his discharge from the office of notary public which he
then hold, would file charges of estafa against him, as a result of
which, he would enter Bilibid prison, and further that the respondent
would publish in all the newspapers an article to the effect that SyJuco
was an impostor.
These threats, especially that relating to the publication in the
newspapers that SyJuco was an impostor, had the desired effect; and
on August 11, 1917, SyJuco, although aware that the charges imputed
to him were false, and in order to prevent the respondent from carrying
his threats into execution, acceded to the respondent's demand and
executed document rescinding the contract in question.
Sotto seems not to have been fully satisfied with this; and a short time
after the occurrence of the events above narrated, he wrote to SyJuco
a letter dated August 13, 1917, in which he asked the latter to pay him
the sum of P2,500 as supposed losses and damages to his client
Natalia Enriquez, and giving him two days time within which to settle
the claim extra-judicially. To make his demand more effective and
probably to impress upon SyJuco's mind the fact that the respondent
would surely execute his threats he caused to be published in the issue
of August 13, 1917, of the newspapers "El Comercio" and "La Nacion,"
an article prepared by himself and entitled "Grave Charges Against a
Notary." The same article was by him caused to be published in the
issue for August 16, 1917, of the newspaper "El Ideal" where it
appeared under the heading of "The Mother of Dr. Valencia Victim of
an Imposter." The difference in the headline of the article as it
appeared in "El Ideal" and as it appeared in the other two papers, and
the slight difference which may be found in their context, is the result of
changes made by the corresponding editors of said papers for the
purpose of evading any responsibility. These articles refer to SyJuco
and in substance impute to his acts constituting fraud and deceit in
securing the execution of the contract first above mentioned, and
further informs the public "an information for estafa will be filed against
the impostor (referring to SyJuco) with Attorney Vicente Sotto acting as
private prosecutor, unless SyJuco should pay all losses and damages."
Four or five days passed. The respondent, meanwhile not having
received any answer from SyJuco, wrote him a registered letter, in
which he reproduced the contents of the first letter and when
concluded with this remark: "No answer having been received from
you, you are advised that I will present the complaint with its
consequences." In this letter were inclosed two pictures, one of
Atanasia Enriquez, and another of Natalia Enriquez, the latter bearing
a note in the handwriting of the respondent and saying "To be
published on the 25th." This note, together with the demand for the
payment of P2,500, was a veiled threat to the effect that unless this
sum of money was forthcoming the publication of scandalous charges
against SyJuco would continue; and this was probably one of the "fatal
consequences" which the respondent had in mind. Such action on the
part of the respondent finds it a cause in SyJuco's not paying any
attention to his first letter, and had the object of impressing all the more
18
upon the mind of his intended victim that he, the respondent, had all
the means of exposing him to public ridicule and contempt.
Still no answer was received from SyJuco; and the respondent caused
to be published in "The Independent" for August 25, 1917, together
with the pictures above described and the affidavits of Natalia and
Atanasia Enriquez, detailing the acts alleged to constitute the
supposed fraud and deceit, the article he had already caused to be
published in the newspapers above mentioned. As it appeared in "The
Independent" the article was entitled "An Aged Lady of Seventy Years
denounces under oath the Adventures of a notary public of Malabon"
(referring to SyJuco); and, to make it appear that he had taken or
copied it from "La Nacion," he placed upon said article an epigraph
which reads, "What 'La Nacion' says." However, the truth is, as has
been said, that it was he who provided "La Nacion" and the other
newspapers with said article.
In spite of these publications SyJuco maintained his silence; and the
respondent, in pursuance of his threats and of his intention to make
SyJuco come to terms, committed the following acts: He asked
SyJuco's mother for a picture of her son and for a copy of the judgment
rendered by the Court of First Instance of Rizal in a case between
SyJuco and his parents, without telling her the purpose for which he
wanted them. Then he caused both the picture and the judgment to be
published in the issue of "The Independent" for September 1, 1917,
under the heading printed in big type of "Son Sued by His Parents.
Santiago V. SyJuco is sentenced by Judge McMahon." Just below the
picture is printed the name "Santiago V. SyJuco" and above it is the
satirical phrase "Men of the day." This publication had an introductory
paragraph which states that "SyJuco, the notary public of Malabon,
Rizal, who recently, according to the daily papers, attempted to defraud
an aged lady of seventy years, making her sign a fraudulent document
of sale of a fisher worth fifteen thousand pesos, had just lost the suit
pending between him, and his father the Chinese Vicente SyJuco and
his mother Cipriana Viardo. This woman ages more than fifty years,
has appeared at the office of "The Independent" in order to ask for the
publication of the judgment." But the truth, as already stated, was that
it was the respondent who published it without the permission or
knowledge of the old lady.
The respondent denies having made any threats against SyJuco but
we think that the proofs tend to show that such threats were made. The
testimony of the witnesses for the Attorney-General to the effect that
the respondent stated that information for estafa would be filed against
SyJuco, that he would surely enter Bilibid prison, etc., agrees with the
respondent's attempt, as shown by Exhibits 4-A and 7-A of the
Attorney-General, to make and that he committed a crime and that he
admitted its commission.
Denial is also made of the truth of the charge that the respondent had
sent to SyJuco the picture of Natalia Enriquez, which bears the note
"To be published on the 25th." There are numerous circumstances, not
necessary to be here detailed, which in our opinion conclusively show
that the charge is true.
We now pass to a consideration of the third charge, with respect to
which the fact are as follows:
On June 29, 1917, Jose Tortajada, a resident of Manila, executed a
document by which he appointed the respondent as his attorney for the
purpose of settling, judicially or extra-judicially, certain differences
which he had with his wife, Amada Mestres. In said document
Tortajada promised to pay the said respondent the sum of P2,000 for
his services. For the purpose of acquainting the respondent with all the
details of the case, Tortajada sent him on June 30, 1917, a letter in
which he described in detailed the proud, haughty, stingy, and despotic
character of his wife and the insults, humiliation, maltreatment, and
remorse that he had suffered at her hand — all of which, if published,
would surely injure the reputation of both spouses and expose them to
public ridicule.
The respondent, in pursuance of the contract of employment, began
work on the case and had some interviews with Tortajada's wife.
Whether as a result of the respondent's services or not, all differences
between Tortajada and his wife were soon afterwards settled extra-
judicially; and the respondent, not long after, made a demand for the
payment of his fees of P2,000, which Tortajada refused to pay. Later
on, Tortajada received in the mail the following documents: (1) a
photographic copy of a letter which purported to be signed by
Tortajada and addressed to the respondent; (2) a typewritten
anonymous letter addressed to Tortajada; and (3) an envelope
addressed to the same person bearing the name of the respondent on
the upper left hand corner and in all the respects of the same class as
that admitted to have been used by him. The photographic copy above
mentioned is a copy of a letter which Tortajada had previously written
to the respondent and in which the latter was urged to expedite the
case. The anonymous letter reads: "Attorney Sotto says that as you
are looking for trouble, he had decided this morning to present a
complaint against you, in which are reproduced all — absolutely all —
of your letters, and, if you compel him, he will cause the complaint
together with the photographic facsimiles of all the letters to be
published in 'The Independnet' and in all the local papers so that the
public may know you and your motives." Believing that these things
came from the respondent, Tortajada sent him a letter in which he
stated that he was not afraid of the respondent's threats and that the
latter could do anything he wanted to do and yet the former would not
pay him a cent. To this reply no answer was received from the
respondent.
Thereafter, the respondent filed in the Court of First Instance of the city
of Manila a complaint against Tortajada for the purpose of recovering
the sum of P2,000, the amount of fees agreed upon. In paragraph 6 of
this complaint there is an exact copy of the letter of June 30, 1917,
which Tortajada sent to the respondent and in which details are given
of the domestic troubles of Tortajada.
There can be no doubt that, supposing the anonymous letter had been
sent by the respondent, its language considered with the relation of the
parties at the time, especially with the persistent refusal of Tortajada to
pay the respondent's fee, would constitute a threat against Tortajada of
a type similar to that employed by the respondent against SyJuco. But
the respondent denies the authorship of the anonymous letter and that
it was he who sent it. The Attorney-General, however, contends that he
(the respondent) is the author thereof and that it was he who sent it.
This contention is based upon the following grounds: (1) The fact that
the anonymous letter was received; (2) the similarity of the envelope in
which it was contained to the envelopes used by the respondent; (3)
the fact that Tortajada answered it addressing a letter to the
respondent, and yet the latter never made any reply denying that he
sent it; (4) the fact that only the respondent could have taken the
photograph of the letter delivered by Tortajada to Amando Calleja and
addressed to the respondent; and (5) the fact that, as was stated in the
anonymous letter, all the letters sent by Tortajada were reproduced in
the complaint.
This combination of circumstances in our opinion shows beyond a
reasonable doubt that the respondent sent the anonymous letter as
charged.
The respondent as a second defense to the third charge contends that
it was not he but his clerk, Amando Calleja, who prepared the
complaint filed against Tortajada and that the respondent signed it
without first reading its contents. We are, however, of the opinion that,
taking all the circumstances into consideration, it was the respondent
himself who prepared the complaint, or at least, if somebody else
prepared it, the respondent ordered or approved the insertion of the
letter in the complaint.
But the respondent further contends that, even admitting that the letter
in question was inserted by him or by his order, he was under no
obligation to keep its contents as secret.
In this view we can by no means concur. The letter was written
confidentially by a client to the respondent in his capacity as attorney.
Hence the respondent was under obligation to keep the contents of the
letter inviolate; and as it is wholly immaterial in the cause of action
stated in the complaint against Tortajada, its insertion therein
constitutes a gross violation of professional conduct and of the oath
taken by the respondent that he would always conduct himself with
entire fidelity to his clients.
The facts material to the fourth charge are these: Sometime in the
month of September, 1917, Natalia Enriquez was looking for someone
who would buy certain parcels of land belonging to her. Atanasia
Enriquez, a niece of Natalia, was aiding her in this work, probably in
the capacity of broker. It appears that the respondent was also
acquainted with this fact and was also probably looking for a purchaser
for one of two reasons, to wit: (1) Either because prior to that time
Natalia Enriquez was indebted to him in the sum of P2,000, which he
wanted to be paid out of the proceeds of the sale, or (2) because he
wished that the document of conveyance should be executed with his
aid so that he could earn his fees. It also appears to be probable that
there was an understanding between Natalia, Atanasia, and the
respondent, that when a purchaser should appear, the document
would be executed with the intervention of the respondent.
On one of the last days of September, 1917, a person named Bernardo
Dagala, or rather his wife, Enrica de Guzman, was found who was
willing to purchase the property. When the sale had already been
verbally agreed upon, Atanasia Enriquez accompanied by Dagala went
to the office of the respondent to notify him that a purchaser had been
found and probably with a view to the execution of the proper
document. But in order that they could easily withdraw and find another
19
notary who would draw the document for a less sum, in a case the
respondent should charge them too high, they withheld the name of the
purchaser and Dagala was presented merely as a person who aided in
looking for a purchaser. But the respondent, more resourceful that they
were and with the intention of securing information from them as to
who the purchaser was, met them with the statement that he too had
found a purchaser who would pay more and who had ready money in
the bank and that the sale to this person should not be delayed.
Thereupon, Dagala, anxious that the sale should be made to him only,
declared that he himself was the purchaser. Thus seeing that Dagala
was so intent to purchase the property and believing that he would be
willing to pay any sum for the drafting of the document, the respondent
told him that the other purchaser was willing to pay him P500 for that
work, and that Dagala has to pay this sum if he wanted to purchase the
property. After some more discussion as to the proper fees for drafting
the document they parted with the understanding that they would again
meet the next day at the respondent's office. However, believing that
the fee demanded by the respondent was too high, Natalia Enriquez,
her son Juan Valencia, Dagala, and his wife De Guzman went the next
day, September 30, 1917, to another notary public in Manila, Miguel de
Leon, who drafted the document of conveyance for a sum much less
than the exorbitant fee which the respondent proposed to charge.
The next day the respondent was informed that the document had
been prepared at the office of Miguel de Leon and on the afternoon of
that day the former went to the latter's office and representing that he
was the attorney of Natalia Enriquez demanded that the document be
shown to him alleging that his client had told him that she signed it
without knowing its contents. Miguel de Leon showed him the
document and explained to him in detail the circumstances under
which it was executed, and which leave no room for doubt that there
was nothing illegal about, nothing that could invalidate it. The object of
the respondent in going to the office of Miguel de Leon was of course
to verify the information which he had received and which he found out
was true. Irritated at the fact that he had thus lost the sum of P500
which he expected to get as a fee for drafting the document of sale, the
respondent, on October 2, 1917, sent two letters to Bernardo Dagala
and two other letters to Natalia Enriquez.
In this first letter to Dagala, he states that, according to his clients,
Dagala had made them sign a document which they did not
understand, that Dagala's conduct was improper, and requested that
the latter should see him at once. In his second letter he reproduces in
effect the substance of the first letter and adds: "Come immediately to
my office if you want to avoid the fatal consequences of what you have
just done." In his first letter to Natalia Enriquez, he ordered her to come
to his office in order to talk about the document she had signed. In the
second letter he advised her that the fault was hers and again asked
her to see him.
On October 3, 1917, Dagala went to the office of the respondent, afraid
of the "fatal consequences" which the latter covertly threatened in his
letter. Here the respondent told Dagala that he had acted improperly in
not coming to the former's office on the day agreed upon, that the
former had lost the sum of P500 which the other purchaser promised to
pay for drafting the document, that he needed money, and that he
would cause trouble unless Dagala should pay him the P500 he had
lost, and guarantee with the property acquired by his wife the debt of
P2,000 which Natalia Enriquez owed the respondent. Somehow or
other, instead of a mere guaranty, Dagala on October 3 was caused by
the respondent to sign a document by which, beside guaranteeing
Natalia's debt of P2,000 with the property sold to his wife, he assumed
the payment of the same. This done, the respondent, who knew
beforehand that the property purchased by Dagala's wife was subject
to a lease and right of option in favor of one Marcelo Estrella, then
requested that Dagala should convince his wife to appoint him as their
attorney to secure the delivery of the property from Estrella. Dagala
promised to come back with his wife the following day, October 4,
1917, which they did, to inform the respondent of their answer.
On this occasion Dagala paid the respondent P500 upon the account
of Natalia's debt for which a receipt was given. The Dagala spouses
then executed a document by which they appointed the respondent
their attorney to secure from Marcelo Estrella the delivery of the
property, and by which they promised to pay him the sum of P500 as
attorney's fees. Acting under this appointment and in representation of
the Dagala spouses the respondent had an interview with Estrella at
his own office. Estrella manifested his willingness to deliver the
property provided that he be indemnified for damages and
improvements he had made upon it.
Several days later, that is, on or about October 16, 1917, the
respondent appeared at the office of the prosecuting attorney of the
city of Manila and acting as attorney for Natalia Enriquez asked that an
information for estafa be filed against the Dagala spouses upon the
ground that these persons had defrauded Natalia Enriquez in the sale
of the property heretofore referred to. It will be noted that at this time
the respondent was attorney for the Dagala spouses with respect to
the same property and knew all the details of the transaction which led
to the sale thereof. An investigation was held the result that the
prosecuting attorney, seeing no good ground for filing the information
for estafa, refused to do so. But the respondent insisted and stated that
he desired criminal proceedings to be instituted against Dagala and his
wife because he was sure that as soon as they or at least Dagala
should be arrested, they would immediately consent to a settlement in
order to avoid the scandal which the respondent intended to create
with the filing of the information and which he would publish in his
weekly, "The Independent." In spite of this insistence, however, no
information was filed; and the respondent on October 25, 1917, wrote a
letter to the Attorney-General in which, after relating the refusal of the
prosecuting attorney to file the information, he says, "for this
reason my client comes to you in demand of justice."
Thereafter in the month of November a civil action against Dagala and
his wife was brought in the Court of First Instance of Manila in which
the plaintiff Natalia Enriquez sought to secure the annulment of the
contract of sale, upon the ground that it was executed through fraud,
deceit, and duress. The complaint was signed by Attorney Jose
Poblete, who at that time was a salaried assistant in the law office of
the respondent.
Upon the facts above stated it is evident that the respondent in
violation of his professional duty, improperly represented conflicting
interests, inasmuch as, while obligated to act for the Dagala spouses in
securing the delivery of the property, he opposed their interest, by
attempting to have the sale set aside.
The reply of the respondent is: (1) That it was not he who asked for the
investigation held by the prosecuting attorney but Natalia Enriquez and
that he was with her during the investigation not as her attorney but
merely as her companion; (2) that it was not he but Jose Poblete who
was the attorney for Natalia Enriquez in the civil action brought by her
against Dagala and his wife; (3) that he had from the beginning acted
in good faith. These assertions are not established. The evidence
shows that it was he who personally asked for an investigation, chose
the prosecuting attorney who conducted it, and delivered the papers
upon which the fiscal acted; and that he took an active part in directing
the investigation, asking now and then questions of the witnesses. It is
also clear that in the course of the investigation he acted as attorney
for Natalia Enriquez. When the prosecuting attorney, finding no good
ground for it, refused to file an information charging estafa, the
respondent wrote to the Attorney-General a letter in which he admits
that Natalia Enriquez was his client. He there says: "For this reason my
client comes to you in demand of justice." The evidence shows that
Jose Poblete was previous to and at the time of the filing of the
complaint an assistant in the law office of the respondent receiving a
salary from the latter but with the privilege of handling his own cases.
Prior to the investigation of the professional conduct of the respondent
this person was called to the office of the Attorney-General and there
he declared under oath, after reading the complaint signed by him in
the case between Natalia Enriquez and Bernardo Dagala and his wife,
that the case was a case of the respondent, who gave it to him in his
capacity of assistant in the respondent's law office, because the
respondent desired to appear as a witness but had the mistaken
opinion that if he should sign as attorney for Natalia Enriquez he could
not appear as a witness. The said Jose Poblete was presented as a
witness in the subsequent investigation but there he turned out to be a
hostile witness, and testified, contrary to his statement at the Attorney-
General's office, that he was surprised when he made those
declarations, that he was nervous at the time, and that he was referring
not to the case of Natalia Enriquez against Dagala but to the case of
Sotto against Alcala and Sotto against Desierto. The testimony of this
witness is important in determining (1) the capacity in which he signed
the complaint against Dagala and his wife, and (2) the propriety of the
respondent's professional conduct. Special care therefore has been
taken in perusing his testimony at the investigation, as a result of which
we come to the conclusion that his conduct during the investigation is
censurable, that his testimony thereat can not be safely relied upon
and that what he had declared at the office of the Attorney-General
was the truth.
As to the third defense, the evidence conclusively shows that from the
beginning the respondent was acting in bad faith. In writing the two
letters to Dagala in which he made the latter understand that he had
committed something wrong and that fatal consequences would follow
unless he should come to the respondent's office, the respondent was
not authorized by Natalia Enriquez. This lady had not had any
conversation or correspondence with him about the document of sale
which she had signed; and this is apparent from his letter in which he
asked her to come so that they could talk about that document.
As the Attorney-General well says, there was no ground for Sotto to
believe that Dagala and his wife had committed any crime. If he acted
in good faith and believed that the sale to Dagala and his wife was
illegal and fastened upon them grave criminal responsibilities, it would
be impossible to explain why he made them sign a document
20
guaranteeing Natalia's debt to him with the property acquired by the
Dagala spouses as a result of the sale. Certainly, this conduct of the
respondent is tantamount to an acknowledgment of the validity of the
sale. The terms of the contract and the circumstances under which the
document was executed were fully known to him as they had been
explained by Miguel de Leon. In fact, in his letter to Natalia Enriquez he
even told her that she was to blame for what had happened, from
which statement it may safely be inferred that Dagala and his wife were
not censurable. The respondent's purpose in trying to secure the filing
of an information against Dagala and his wife for the crime
of estafa was, as by him stated, merely to make them settle the matter
with him extra-judicially, in the hope that he could get more money out
of them.
The simple narrative of the facts connected with charges 1, 3, and 4,
given above, suffices to show that the respondent has been decidedly
lacking in fidelity to his clients and from motives of private gain has
grossly abused the honorable profession of which he is a member. In
each of these transactions his conduct was reprehensible and
unprofessional in a high degree and evinces a moral obtuseness
incompatible with the office of attorney. For purposes of extortion and
blackmail he availed himself of his de facto power as the responsible
director of a newspaper to blacken the reputation of his refractory
clients or others who refused to submit to his demands. In this he
proved himself not only unworthy of membership in the legal profession
but unfit even for the responsible position of editor of a newspaper.
Charge No. 2, in the Attorney-General's report relates to certain
malicious and unjustifiable insinuations against the judicial integrity of
the Honorable M. V. del Rosario, a judge of the Court of First Instance
of the City of Manila, which appeared in articles published under the
heading "Sin Malicia" in the issues of "The Independent" dated
respectively October 13, 20 and 27, 1917. The occasion which called
forth these libelous effusions from Sotto's pen was that Judge Del
Rosario had lately imposed upon him as fine of P500 in a prosecution
for criminal libel. The publication of this matter was a manifest violation
of the oath which the respondent had taken to conduct himself with
fidelity to the courts.
Thornton, in his work on Attorneys-at-Law, speaking of offenses of this
character, says:
PAR. 788. An attorney who is guilty of writing and publishing
a libelous charge against the court or any member thereof, in
respect to his official conduct, or who procures the writing or
publication of such a charge, may and should be, disbarred
from further practice. . . .
PAR. 789. Nor can an attorney-at-law shield himself as
against a charge of having libeled the court or a judge
thereof, by pleading that he is also the editor of the
newspaper wherein the charges were published. His position
at the bar enables him, in such case, to inflict the greater
wound, and he may be deprived of the privileges and
character which it gives him, by suspension or expulsion,
without infringing on the freedom of press.
Charge No. 5 in the final report of the Attorney-General sets forth that
in the course of the present proceedings the respondent deliberately
deviated from the truth by testifying falsely in regard to certain
important details of the matters under investigation, namely, in
denying, under oath, (1) having enclosed the photographs of Natalia
and Atanasia Enriquez in the letter that he sent to SyJuco, and having
written the note found on one of them, saying: "To be published on the
25th;" (2) having sent to Tortajada the photograph of one of the latter's
letters addressed to Sotto with the anonymous typewritten note; and
(3) having acted as attorney for Natalia Enriquez in the proceedings for
the institution of criminal charge against Dagala.
We agree with the Attorney-General that these denials are shown to be
false beyond reasonable doubt; and the fact that the respondent made
them shows not only the weakness of his defense but furnishes
additional proof of his unworthiness to remain a member of the legal
profession.
In deciding the several charges made against the herein respondent,
we examined each and every one of them separately upon its own
merits, independently from the others. However, it must be observed
that the act alleged in said charges taken together show a systematic
tendency on the part of the respondent, and reveals the existence of a
deliberate plan to foster his own interests, by means of an illicit use of
his two-fold capacity as attorney-at-law and newspaperman. The
existence of the good faith on the part of the respondent has thus been
belied by the aforementioned acts.
One of the qualifications required of a candidate for admission to the
bar is the possession of good moral character, and, when one who has
already been admitted to the bar clearly shows, by a series of acts, that
he does not follow such moral principles as should govern the conduct
of an upright person, and that, in his dealings with his clients and with
the courts, he disregards the rule of professional ethics required to be
observed by every attorney, it is the duty of the court, as guardian of
the interest of society, as well as of the preservation of the ideal
standard of professional conduct, to make use of its powers to deprive
him of his professional attributes which he so unworthily abused.
In view of the repeated acts of gross misconduct above specified, on
the part of the respondent Vicente Sotto, and by virtue of the provisions
of section 21 of the Code of Civil Procedure, the said Vicente Sotto is
hereby removed from the office of attorney and incapacitated from
hereafter exercising the legal profession. The certificate heretofore
issued to him authorizing him to exercise said profession is accordingly
annulled, and let the surrender thereof to the clerk of this court be
required within five days after this decision becomes effective. The
costs will be taxed in accordance with section 24 of the Code of Civil
Procedure.
Torres, Johnson, Avanceña and Fisher, JJ., concur.
August 3, 1920
In re PEDRO G. PARAISO
Vicente Foz for respondent.
Attorney-General Paredes for the Government.
MALCOLM, J.:
Section 21 of our Code of Civil Procedure makes it the duty of the
Supreme Court, among other causes, to remove or suspend a member
of the Philippine Bar for any deceit, malpractice, or gross misconduct in
his office of lawyer. Disagreeable as such action is, this provisions of
law must be applied to Pedro G. Paraiso, the respondent lawyer, who
attempted to obtain, and did in fact obtain, a small sum from his client
which he converted to his own use through the false pretense of paying
a fine in a criminal case when no fine had been imposed. The
proceeding thus rest no facts criminal in nature, although not intended
to determine the culpability of an accused, but instituted for the
purpose of ascertaining if the lawyer is possessed of that good moral
character which is a condition precedent to the privilege of practicing
law and of continuing in the practice thereof. The lawyer who has thus
violated his oath of office, betrayed the confidence reposed in him by a
client, and practiced deceit, cannot be permitted to retain the position
of a practitioner at law. Not alone has he degraded himself but as an
unfaithful lawyer he has besmirched the fair name of an honorable
profession.
It is therefore ordered that the license to practice law heretofore issued
to Pedro G. Paraiso be suspended for six months to begin from this
date. The costs shall be taxed in accordance with section 24 of the
Code of Civil Procedure.
Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.
Separate Opinions
CARSON, J., concurring:
I concur although I incline to think that the penalty is not severe enough
in view of the findings.
A.C. No. 389             February 28, 1967
IN RE: DISBARMENT OF ARMANDO PUNO.
FLORA QUINGWA complainant,
vs.
ARMANDO PUNO, respondent.
Domingo T. Zavalla for complainant.
Armando Puno for and in his own behalf as respondent.
REGALA, J.:
21
On April 16, 1959, Flora Quingwa filed before this Court a verified
complaint charging Armando Puno, a member of the Bar, with gross
immorality and misconduct. In his answer, the respondent denied all
the material allegations of the complaint, and as a special defense
averred that the allegations therein do not constitute grounds for
disbarment or suspension under section 25, Rule 127 of the former
Rules of Court.
The case was referred to the Solicitor General on June 3, 1958, for
investigation, report and recommendation. Hearings were held by the
then Solicitor Roman Cancino, Jr., during which the complainant,
assisted by her counsel, presented evidence both oral and
documentary. The respondent, as well as his counsel, cross-examined
the complainant's witnesses. The respondent likewise testified. He
denied having sexual intercourse with complainant at the Silver Moon
Hotel on June 1, 1958, disclaimed the handwriting "Mr. & Mrs. A.
Puno" appearing in the hotel register, and disowned Armando Quingwa
Puno, Jr. to be his child.
After the hearing, the Solicitor General filed a complaint, formally
charging respondent with immorality. The complaint recites:
That on June 1, 1958, at a time when complainant Flora
Quingwa and respondent Armando Puno were engaged to
be married, the said respondent invited the complainant to
attend a movie but on their way the respondent told the
complainant that they take refreshment before going to the
Lyric Theater; that they proceeded to the Silver Moon Hotel
at R. Hidalgo, Manila; that while at the restaurant on the first
floor of the said Silver Moon Hotel, respondent proposed to
complainant that they go to one of the rooms upstairs
assuring her that 'anyway we are getting married; that with
reluctance and a feeling of doubt engendered by love of
respondent and the respondent's promise of marriage,
complainant acquiesced, and before they entered the hotel
room respondent registered and signed the registry book as
'Mr. and Mrs. A. Puno; that after registering at the hotel,
respondent shoved complainant inside the room; that as
soon as they were inside the room, someone locked the door
from outside and respondent proceeded to the bed and
undressed himself; that complainant begged respondent not
to molest her but respondent insisted, telling her: 'anyway I
have promised to marry you'; and respondent, still noticing
the reluctance of complainant to his overtures of love, again
assured complainant that 'you better give up. Anyway I
promised that I will marry you'; that thereupon respondent
pulled complainant to the bed, removed her panty, and then
placed himself on top of her and held her hands to keep her
flat on the bed; that when respondent was already on top of
complainant the latter had no other recourse but to submit to
respondent's demand and two (2) sexual intercourse took
place from 3:00 o'clock until 7:00 o'clock that same evening
when they left the hotel and proceeded to a birthday party
together; that after the sexual act with complainant on June
1, 1958, respondent repeatedly proposed to have some
more but complainant refused telling that they had better
wait until they were married; that after their said sexual
intimacy on June 1, 1958 and feeling that she was already
on the family way, complainant repeatedly implored
respondent to comply with his promise of marriage but
respondent refused to comply; that on February 20, 1959,
complainant gave birth to a child.
That the acts of the respondent in having carnal knowledge
with the complainant through a promise of marriage which he
did not fulfill and has refused to fulfill up to the present
constitute a conduct which shows that respondent is devoid
of the highest degree of morality and integrity which at all
times is expected of and must be possessed by members of
the Philippine Bar.
The Solicitor General asked for the disbarment of the respondent.
A copy of this complaint was served on respondent on May 3, 1962.
Thereupon, he answered the complaint on June 9, 1962, again
denying that he took complainant to the Silver Moon Hotel and that on
the promise of marriage, succeeded twice in having sexual intercourse
with her. He, however, admitted that sometime in June, 1955, he and
the complainant became sweethearts until November, 1955, when they
broke off, following a quarrel. He left for Zamboanga City in July, 1958,
to practice law. Without stating in his answer that he had the intention
of introducing additional evidence, respondent prayed that the
complaint be dismissed.
This case was set for hearing in this Court on July 20, 1962. On the
day of the hearing Solicitor Ceferino E. Gaddi who appeared for the
complainant submitted the case for decision without oral argument.
There was no appearance for the respondents.
Since the failure of respondent to make known in his answer his
intention to present additional evidence in his behalf is deemed a
waiver of the right to present such evidence (Toledo vs. Toledo, Adm.
Case No. 266, April 27, 1963), the evidence produced before the
Solicitor General in his investigation, where respondent had an
opportunity to object to the evidence and cross-examine the witnesses,
may now be considered by this Court, pursuant to Section 6, Rule 139
of the Rules of Court.
After reviewing the evidence, we are convinced that the facts are as
stated in the complaint.
Complainant is an educated woman, having been a public school
teacher for a number of years. She testified that respondent took her to
the Silver Moon Hotel on June 1, 1958, signing the hotel register as
"Mr. and Mrs. A. Puno," and succeeded in having sexual intercourse
with her on the promise of marriage. The hotel register of the Silver
Moon Hotel (Exh. B-1 and Exh. B-2) shows that "Mr. and Mrs. A. Puno"
arrived at that hotel on June 1, 1958 at 3:00 P.M. and departed at 7:00
P.M.
Complainant also testified that she last saw respondent on July 5,
1958, when the latter went to Zamboanga City. When she learned that
respondent had left for Zamboanga City, she sent him a telegram
sometime in August of that year telling him that she was in trouble.
Again she wrote him a letter in September and another one in October
of the same year, telling him that she was pregnant and she requested
him to come. Receiving no replies from respondent, she went to
Zamboanga City in November, 1958, where she met the respondent
and asked him to comply with his promise to marry her.1äwphï1.ñët
Respondent admitted that he left for Zamboanga City in July, 1958,
and that he and complainant met in Zamboanga City in November,
1958. The fact that complainant sent him a telegram and letters was
likewise admitted in respondent's letter to the complainant dated
November 3, 1958 (Exh. E), which was duly identified by the
respondent to be his.
Complainant gave birth to a baby boy on February 20, 1959, at the
Maternity and Children's Hospital. This is supported by a certified true
copy of a birth certificate issued by the Deputy Local Civil Registrar of
Manila, and a certificate of admission of complainant to the Maternity
and Children's Hospital issued by the medical records clerk of the
hospital.
To show how intimate the relationship between the respondent and the
complainant was, the latter testified that she gave money to the
respondent whenever he asked from her. This was corroborated by the
testimony of Maria Jaca a witness for the complainant. Even
respondent's letter dated November 3, 1958 (Exh. E) shows that he
used to ask for money from the complainant.
The lengthy cross-examination to which complainant was subjected by
the respondent himself failed to discredit complainant's testimony.
In his answer to the complaint of the Solicitor General, the respondent
averred that he and complainant were sweethearts up to November,
1955 only. The fact that they reconciled and were sweethearts in 1958
is established by the testimony of Fara Santos, a witness of the
complainant (pp. 12 & 17, t.s.n.); respondent's letter to the complainant
dated November 3, 1958 (Exh. E); and respondent's own testimony
(pp. 249 & 255, t.s.n.)
Complainant submitted to respondent's plea for sexual intercourse
because of respondent's promise of marriage and not because of a
desire for sexual gratification or of voluntariness and mutual passion.
(Cf. Tanjanco vs. Court of Appeals, G.R. No. L-18630, December 17,
1966) .
One of the requirements for all applicants for admission to the Bar is
that the applicant must produce before the Supreme Court satisfactory
evidence of good moral character (Section 2, Rule 127 of the old Rules
of Court, now section 2, Rule 138). If that qualification is a condition
precedent to a license or privilege to enter upon the practice of law, it is
essential during the continuance of the practice and the exercise of the
privilege. (Royong vs. Oblena, Adm. Case No. 376, April 30, 1963,
citing In re Pelaez, 44 Phil. 567). When his integrity is challenged by
evidence, it is not enough that he denies the charges against him; he
must meet the issue and overcome the evidence for the relator (Legal
and Judicial Ethics, by Malcolm, p. 93) and show proofs that he still
maintains the highest degree of morality and integrity, which at all
times is expected of him. Respondent denied that he took complainant
22
to the Silver Moon Hotel and had sexual intercourse with her on June
1, 1958, but he did not present evidence to show where he was on that
date. In the case of United States vs. Tria, 17 Phil. 303, Justice
Moreland, speaking for the Court, said:
An accused person sometimes owes a duty to himself if not
to the State. If he does not perform that duty he may not
always expect the State to perform it for him. If he fails to
meet the obligation which he owes to himself, when to meet
it is the easiest of easy things, he is hardly indeed if he
demand and expect that same full and wide consideration
which the State voluntarily gives to those who by reasonable
effort seek to help themselves. This is particularly so when
he not only declines to help himself but actively conceals
from the State the very means by which it may assist him.
With respect to the special defense raised by the respondent in his
answer to the charges of the complainant that the allegations in the
complaint do not fall under any of the grounds for disbarment or
suspension of a member of the Bar as enumerated in section 25 of
Rule 127 of the (old) Rules of Court, it is already a settled rule that the
statutory enumeration of the grounds for disbarment or suspension is
not to be taken as a limitation on the general power of courts to
suspend or disbar a lawyer. The inherent powers of the court over its
officers can not be restricted. Times without number, our Supreme
Court held that an attorney will be removed not only for malpractice
and dishonesty in his profession, but also for gross misconduct, which
shows him to be unfit for the office and unworthy of the privileges
which his license and the law confer upon him. (In re Pelaez, 44 Phil.
567, citing In re Smith [1906] 73 Kan 743; Balinon vs. de Leon Adm.
Case No. 104, January 28, 1954; 50 O.G. 583; Mortel vs. Aspiras,
Adm. Case No. 145, December 28, 1956, 53 O.G. 627). As a matter of
fact, "grossly immoral conduct" is now one of the grounds for
suspension or disbarment. (Section 27, Rule 138, Rules of Court).
Under the circumstances, we are convinced that the respondent has
committed a grossly immoral act and has, thus disregarded and
violated the fundamental ethics of his profession. Indeed, it is important
that members of this ancient and learned profession of law must
conform themselves in accordance with the highest standards of
morality. As stated in paragraph 29 of the Canons of Judicial Ethics:
... The lawyer should aid in guarding the bar against the
admission to the profession of candidates unfit or unqualified
because deficient in either moral character or education. He
should strive at all times to uphold the honor and to maintain
the dignity of the profession and to improve not only the law
but the administration of justice.
Wherefore, respondent Armando Puno is hereby disbarred and, as a
consequence, his name is ordered stricken off from the Roll of
Attorneys.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.
G.R. No. L-1045             November 23, 1911
In the matter of the application of ERNEST F. DU FRESNE to be
admitted to the bar without taking the usual examination.
Ernest F. Du Fresne in his own behalf.
CARSON, J.:
This is a motion for a reconsideration of a former ruling of this court
denying an application for a license to practice law in the courts of the
Philippine Islands without taking the prescribed examination.
Applicant, relying upon the provisions of section 2 of Act No. 1597,
seeks admission to the bar without taking the usual examination
claiming that he has "held" the office of assistant prosecuting attorney
of the city of Manila by virtue of an appointment as acting assistant
prosecuting attorney of the city of Manila, made in his favor under the
provisions of section 15 of Act No. 1698.
Section 2 of Act No. 1597 is as follows:
Paragraph one of section thirteen of Act Numbered One
Hundred and ninety, entitled "An Act providing a Code of
Procedure in civil actions and special proceedings in the
Philippine Islands," is hereby amended to read as follows:
1. Those who have been duly licensed under the
laws and orders of the Islands under the
sovereignty of Spain or of the United States and
are in good and regular standing as members of
the bar of the Philippine Islands at the time of the
adoption of this code: Provided, That any person
who, prior to the passage of this Act, or at any time
thereafter, shall have held, under the authority of
the United States, the position of justice of the
Supreme court, judge of the Court of First
Instance, or judge or associate judge of the Court
of Land Registration, of the Philippine Islands, or
the position of Attorney-General, Solicitor-General,
Assistant Attorney-General, Assistant attorney for
the city of Manila, provincial fiscal, attorney for the
Moro Province, or assistant attorney for the Moro
Province, may be licensed to practice law in the
courts of the Philippine Islands without an
examination, upon motion before the Supreme
Court and establishing such fact to the satisfaction
of said court.
That portion of section 15 of Act No. 1698, by authority of which
applicant claims that he was appointed an acting assistant prosecuting
attorney of the city of Manila, is as follows:
In case of temporary absence or disability of any subordinate
officer or employee in any Bureau or Office, the chief of such
Bureau or Office may designate any other subordinate officer
or employee in his Bureau or Office temporarily to perform
the duties of the officer or employee who is thus absent or
disabled, and it shall be the duty of the person is designated
to perform the duties so assigned to him without additional
compensation.
Upon the showing made by the applicant, we do not think that he
comes within either the letter or the spirit of the provisions of section 2
of Act No. 1597, on which he bases his application.
Applicant does not claim that he was appointed to the office of
assistant prosecuting attorney of the city of Manila. His claim is that he
was appointed an acting assistant prosecuting attorney of the city of
Manila; but the privilege conferred in express terms in section 2 of Act
No. 1597, upon which he relies, is conferred upon one who has "held"
the position of assistant prosecuting attorney of the city of Manila, and
makes no express provision touching one who has held the position of
an acting assistant prosecuting attorney.
Applicant, however, contends that his appointment as
an acting assistant prosecuting attorney for the city of Manila, under
the provisions of section 15 of Act No. 1698, was a sufficient
authorization to him to hold the office of assistant prosecuting attorney
for the city of Manila; and that he did, in fact, hold that office and
perform the duties thereof for several months. We do not think that this
contention is or can be sustained by the terms of the statute upon
which applicant relies.lawphil.net
Without considering whether section 15 of Act No. 1698 contemplates
or authorizes the making of appointments is the form in which
applicant's appointment was made, that is to say, as
an acting assistant prosecuting attorney, it is very clear that whatever
form be adopted by the prosecuting attorney for the city of Manila in
designating subordinate officers and employees in his
office temporarily to perform the duties of an absent or disabled
assistant prosecuting attorney, his action, if taken under the authority
conferred upon him by section 15 of Act No. 1698, can amount to no
more than a mere designation and authorization to such person
temporarily to perform the duties of the absent or disabled official,
without additional compensation. The language of the statute leaves no
room for doubt that a subordinate officer or employee designated
temporarily to perform the duties of another, continues to "hold" his
own office or employment with all its rights and privileges; and there is
nothing in the statute which indicates that in addition thereto, any of the
rights and privileges of the official whose duties he is designated
temporarily to perform, except only, of course, such rights and
privileges as are necessarily incident to the actual performance of the
duties of the absent or disabled official.
But not only does the designation of the applicant temporarily to
perform the duties of an assistant prosecuting attorney for the city of
Manila fail to bring him within the strict letter of the law authorizing the
admission of such officials to the bar without examination; in our
opinion it fails also to bring him within the spirit or the intent of the
provisions of the above-cited section 2 of Act No. 1597.
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Public policy demands that any person seeking admission to the bar in
these Islands be required to furnish satisfactory proof of his
educational and moral qualifications and of his possession of such a
degree or learning and proficiency in the law as may be deemed
necessary for the due performance of the duties of a lawyer. The
learning and proficiency in the law of an applicant for admission to the
bar is usually ascertained by requiring him to submit himself to an
examination. But section 2 of Act No. 1597 provides, substantially, that
officials who have held certain specified judicial and legal offices in
these Islands will be presumed to have the necessary learning and
proficiency in the law to entitle them to admission to the bar without
examination. Of course, a mere appointment to one of these offices
could not impart such learning and proficiency in the law to one who
was without it at the time of his appointment, and it is clear that this
presumption must rest on the further presumption that before any
person is appointed to any of the positions mentioned in the Act, due
inquiry is made as to his character and qualifications, and that no
person will be appointed to such positions who has not at least such a
degree of learning and proficiency in the law as would entitle him to
admission to practice in the various courts in these Islands.
Appointments to the positions mentioned in Act No. 1597 are made
either by the President of the United States by and with the advice and
consent of the Senate, or by the Governor-General of the Philippine
Commission, and the legislator evidently conceived that the fact such
an appointment is made is a sufficient guaranty that after due inquiry
the appointee has been found to be possessed of at least the
necessary qualifications for admission to the bar.
But no such presumption arises as to the qualification of one who is
merely designated temporarily to perform the duties of one of the
officials mentioned in the Act. Under the provisions of section 15 of Act
No. 1698, the Attorney-General of the Islands, the city attorney and the
prosecuting attorney for the city of Manila and the attorney for the Moro
Province may each designate any subordinate officer or employee in
their respective offices temporarily to perform the duties of an absent
or disabled assistant attorney. In making such designation for
temporary duty, there is no such obligation upon the chiefs of these
offices to look well to the qualifications as a lawyer of the employee
thus designated, as there is upon the Chief Executive to look well to
the qualifications of a regular appointee to such an office; and it is easy
to imagine cases where an employee not learned in the law, or at most
with some knowledge and experience in a single branch of the law
such a criminal practice and procedure, might properly be designated
temporarily to perform the duties of an assistant attorney in one or
other of those offices, although his permanent appointment to such an
office would not be justified by his general attainments as a lawyer.
There is no such guaranty that only competent attorneys will be
perform the duties of absent assistant attorneys under the provisions of
section 15 of Act No. 1698, as there is that the President of the United
States by and with the advice and consent of the Senate, and the
Governor-General of the Philippine Islands by and with the consent of
the Commission will appoint none but competent attorneys
permanently to occupy the important judicial and legal positions
expressly mentioned in section 2 of Act No. 1597.
We do not believe that it was the intention of the legislator to put it in
the power of the Attorney-General of the Islands, of the city attorney
and the prosecuting attorney for the city of Manila, and of the attorney
for the Moro Province arbitrarily, and in the exercise of their
unrestrained discretion to confer upon subordinate officers and
employees in their offices the right to admission to the bar in these
Islands without examination; and we hold that subordinate officers and
employees designated temporarily to perform the duties of absent or
disabled assistant attorneys do not hold the positions of such absent or
disabled assistant attorneys in the sense in which the legislator
contemplated the holding of those positions in section 2 of Act No.
1597, in order to give one who has held them the right to admission to
practice law in these Islands without taking the prescribed examination.
The application should be, and is, denied.
Arellano, C.J., Torres, Mapa, Johnson, Moreland and Trent, JJ.,
concur.
A.C. No. 244             March 29, 1963
IN THE MATTER OF THE PETITION FOR DISBARMENT OF
TELESFORO A. DIAO,
vs.
SEVERINO G. MARTINEZ, petitioner.
BENGZON, C.J.:
After successfully passing the corresponding examinations held in
1953, Telesforo A. Diao was admitted to the Bar.
About two years later, Severino Martinez charged him with having
falsely represented in his application for such Bar examination, that he
had the requisite academic qualifications. The matter was in due
course referred to the Solicitor General who caused the charge to be
investigated; and later he submitted a report recommending that Diao's
name be erased from the roll of attorneys, because contrary to the
allegations in his petition for examination in this Court, he (Diao) had
not completed, before taking up law subjects, the required pre-legal
education prescribed by the Department of Private Education,
specially, in the following particulars:
(a) Diao did not complete his high school training; and
(b) Diao never attended Quisumbing College, and never
obtained his A.A. diploma therefrom — which contradicts the
credentials he had submitted in support of his application for
examination, and of his allegation therein of successful
completion of the "required pre-legal education".
Answering this official report and complaint, Telesforo A. Diao,
practically admits the first charge: but he claims that although he had
left high school in his third year, he entered the service of the U.S.
Army, passed the General Classification Test given therein, which
(according to him) is equivalent to a high school diploma, and upon his
return to civilian life, the educational authorities considered his army
service as the equivalent of 3rd and 4th year high school.
We have serious doubts, about the validity of this claim, what with
respondent's failure to exhibit any certification to that effect (the
equivalence) by the proper school officials. However, it is unnecessary
to dwell on this, since the second charge is clearly meritorious. Diao
never obtained his A.A. from Quisumbing College; and yet his
application for examination represented him as an A.A. graduate
(1940-1941) of such college. Now, asserting he had obtained his A.A.
title from the Arellano University in April, 1949, he says he was
erroneously certified, due to confusion, as a graduate of Quisumbing
College, in his school records.
Wherefore, the parties respectfully pray that the foregoing stipulation of
facts be admitted and approved by this Honorable Court, without
prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of facts. 1äwphï1.ñët
This explanation is not acceptable, for the reason that the "error" or
"confusion" was obviously of his own making. Had his application
disclosed his having obtained A.A. from Arellano University, it would
also have disclosed that he got it in April, 1949, thereby showing that
he began his law studies (2nd semester of 1948-1949) six months
before obtaining his Associate in Arts degree. And then he would not
have been permitted to take the bar tests, because our Rules provide,
and the applicant for the Bar examination must affirm under oath, "That
previous to the study of law, he had successfully and satisfactorily
completed the required pre-legal education(A.A.) as prescribed by the
Department of Private Education," (emphasis on "previous").
Plainly, therefore, Telesforo A. Diao was not qualified to take the bar
examinations; but due to his false representations, he was allowed to
take it, luckily passed it, and was thereafter admitted to the Bar. Such
admission having been obtained under false pretenses must be, and is
hereby revoked. The fact that he hurdled the Bar examinations is
immaterial. Passing such examinations is not the only qualification to
become an attorney-at-law; taking the prescribed courses of legal
study in the regular manner is equally essential..
The Clerk is, therefore, ordered to strike from the roll of attorneys, the
name of Telesforo A. Diao. And the latter is required to return his
lawyer's diploma within thirty days. So ordered.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
 
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