C. Canon 3
You can come to my house at any time here in Echague, to submit to me any
i. Rule 3.01
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of the provincial
board of Isabela, admits that previous to the last general elections he made use of a card
written in Spanish and Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. — As notary public, he can execute for you a deed of sale for the purchase of
land as required by the cadastral office; can renew lost documents of your animals; can
make your application and final requisites for your homestead; and can execute any
kind of affidavit. As a lawyer, he can help you collect your loans although long
overdue, as well as any complaint for or against you. Come or write to him in his town,
Echague, Isabela. He offers free consultation, and is willing to help and serve the poor.)
The respondent further admits that he is the author of a letter addressed to a lieutenant
of barrio in his home municipality written in Ilocano, which letter, in translation, reads
as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our
induction into office as member of the Provincial Board, that is on the 16th of next
month. Before my induction into office I should be very glad to hear your suggestions
or recommendations for the good of the province in general and for your barrio in
particular.
kind of suggestion or recommendation as you may desire.
I also inform you that despite my membership in the Board I will have my residence
here in Echague. I will attend the session of the Board of Ilagan, but will come back
home on the following day here in Echague to live and serve with you as a lawyer and
notary public. Despite my election as member of the Provincial Board, I will exercise
my legal profession as a lawyer and notary public. In case you cannot see me at home
on any week day, I assure you that you can always find me there on every Sunday. I
also inform you that I will receive any work regarding preparations of documents of
contract of sales and affidavits to be sworn to before me as notary public even on
Sundays.
I would like you all to be informed of this matter for the reason that some people are in
the belief that my residence as member of the Board will be in Ilagan and that I would
then be disqualified to exercise my profession as lawyer and as notary public. Such is
not the case and I would make it clear that I am free to exercise my profession as
formerly and that I will have my residence here in Echague.
I would request you kind favor to transmit this information to your barrio people in any
of your meetings or social gatherings so that they may be informed of my desire to live
and to serve with you in my capacity as lawyer and notary public. If the people in your
locality have not as yet contracted the services of other lawyers in connection with the
registration of their land titles, I would be willing to handle the work in court and would
charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable legal
provisions. Section 21 of the Code of Civil Procedure as originally conceived related to
disbarments of members of the bar. In 1919 at the instigation of the Philippine Bar
Association, said codal section was amended by Act No. 2828 by adding at the end
thereof the following: "The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes malpractice."
Page 1 of 30
The statute as amended conforms in principle to the Canons of Professionals Ethics
adopted by the American Bar Association in 1908 and by the Philippine Bar
Association in 1917. Canons 27 and 28 of the Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and effective
advertisement possible, even for a young lawyer, and especially with his brother
lawyers, is the establishment of a well-merited reputation for professional capacity and
fidelity to trust. This cannot be forced, but must be the outcome of character and
conduct. The publication or circulation of ordinary simple business cards, being a
matter of personal taste or local custom, and sometimes of convenience, is not per se
improper. But solicitation of business by circulars or advertisements, or by personal
communications or interview not warranted by personal relations, is unprofessional. It
is equally unprofessional to procure business by indirection through touters of any kind,
whether allied real estate firms or trust companies advertising to secure the drawing of
deeds or wills or offering retainers in exchange for executorships or trusteeships to be
influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring
newspaper comments concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's position, and all other like self-
laudation, defy the traditions and lower the tone of our high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. — It is
unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases
where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and
litigation is not only unprofessional, but it is indictable at common law. It is
disreputable to hunt up defects in titles or other causes of action and inform thereof in
order to the employed to bring suit, or to breed litigation by seeking out those with
claims for personal injuries or those having any other grounds of action in order to
secure them as clients, or to employ agents or runners for like purposes, or to pay or
reward directly or indirectly, those who bring or influence the bringing of such cases to
his office, or to remunerate policemen, court or prison officials, physicians, hospital
attaches or others who may succeed, under the guise of giving disinterested friendly
advice, in influencing the criminal, the sick and the injured, the ignorant or others, to
seek his professional services. A duty to the public and to the profession devolves upon
every member of the bar having knowledge of such practices upon the part of any
practitioner immediately to inform thereof to the end that the offender may be
disbarred.
Common barratry consisting of frequently stirring up suits and quarrels between
individuals was a crime at the common law, and one of the penalties for this offense
when committed by an attorney was disbarment. Statutes intended to reach the same
evil have been provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind statutes of this type is
not difficult to discover. The law is a profession and not a business. The lawyer may not
seek or obtain employment by himself or through others for to do so would be
unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625; People vs.
Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation
of cases by lawyers. It is destructive of the honor of a great profession. It lowers the
standards of that profession. It works against the confidence of the community in the
integrity of the members of the bar. It results in needless litigation and in incenting to
strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment or
suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted facts, the
respondent stands convicted of having solicited cases in defiance of the law and those
canons. Accordingly, the only remaining duty of the court is to fix upon the action
which should here be taken. The provincial fiscal of Isabela, with whom joined the
representative of the Attorney-General in the oral presentation of the case, suggests that
the respondent be only reprimanded. We think that our action should go further than
this if only to reflect our attitude toward cases of this character of which unfortunately
the respondent's is only one. The commission of offenses of this nature would amply
justify permanent elimination from the bar. But as mitigating, circumstances working in
favor of the respondent there are, first, his intimation that he was unaware of the
impropriety of his acts, second, his youth and inexperience at the bar, and, third, his
promise not to commit a similar mistake in the future. A modest period of suspension
would seem to fit the case of the erring attorney. But it should be distinctly understood
that this result is reached in view of the considerations which have influenced the court
to the relatively lenient in this particular instance and should, therefore, not be taken as
indicating that future convictions of practice of this kind will not be dealt with by
disbarment.
In view of all the circumstances of this case, the judgment of the court is that the
respondent Luis B. Tagorda be and is hereby suspended from the practice as an
attorney-at-law for the period of one month from April 1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
OSTRAND, J., dissenting:
Page 2 of 30
I dissent. Under the circumstances of the case a reprimand would have been sufficient
punishment.
Khan vs. Simbillo, AC No. 5299, August 19, 2003
FIRST DIVISION
[A.C. No. 5299. August 19, 2003]
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public
Information Office, complainant, vs. ATTY. RIZALINO T. SIMBILLO, respondent.
[G.R. No. 157053. August 19, 2003]
ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR
DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant Court
Administrator and Chief, Public Information Office, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that appeared in the July
5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: ANNULMENT
OF MARRIAGE Specialist 532-4333/521-2667.[1]
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the
Supreme Court, called up the published telephone number and pretended to be an
interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty.
Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a court
decree within four to six months, provided the case will not involve separation of
property or custody of children. Mrs. Simbillo also said that her husband charges a fee
of P48,000.00, half of which is payable at the time of filing of the case and the other
half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public Information
Office revealed that similar advertisements were published in the August 2 and 6, 2000
issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.[2]
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court
Administrator and Chief of the Public Information Office, filed an administrative
complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of
his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional
Responsibility and Rule 138, Section 27 of the Rules of Court.[3]
In his answer, respondent admitted the acts imputed to him, but argued that advertising
and solicitation per se are not prohibited acts; that the time has come to change our
views about the prohibition on advertising and solicitation; that the interest of the public
is not served by the absolute prohibition on lawyer advertising; that the Court can lift
the ban on lawyer advertising; and that the rationale behind the decades-old prohibition
should be abandoned. Thus, he prayed that he be exonerated from all the charges
against him and that the Court promulgate a ruling that advertisement of legal services
offered by a lawyer is not contrary to law, public policy and public order as long as it is
dignified.[4]
The case was referred to the Integrated Bar of the Philippines for investigation, report
and recommendation.[5] On June 29, 2002, the IBP Commission on Bar Discipline
passed Resolution No. XV-2002-306,[6] finding respondent guilty of violation of Rules
2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of
the Rules of Court, and suspended him from the practice of law for one (1) year with
the warning that a repetition of similar acts would be dealt with more severely. The IBP
Resolution was noted by this Court on November 11, 2002.[7]
In the meantime, respondent filed an Urgent Motion for Reconsideration,[8] which was
denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002[9]
Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053
entitled, Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar
Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public
Information Office, Respondents. This petition was consolidated with A.C. No. 5299
per the Courts Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to manifest whether or
not they were willing to submit the case for resolution on the basis of the pleadings.[10]
Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting
any additional pleading or evidence and is submitting the case for its early resolution on
the basis of pleadings and records thereof. [11] Respondent, on the other hand, filed a
Supplemental Memorandum on June 20, 2003.
We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to
solicit legal business.
Page 3 of 30
Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading,
deceptive, undignified, self-laudatory or unfair statement or claim regarding his
qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor.
A member of the bar may be disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice or other gross misconduct in such office,
grossly immoral conduct or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take before the
admission to practice, or for a willful disobedience appearing as attorney for a party
without authority to do so.
It has been repeatedly stressed that the practice of law is not a business.[12] It is a
profession in which duty to public service, not money, is the primary consideration.
Lawyering is not primarily meant to be a money-making venture, and law advocacy is
not a capital that necessarily yields profits.[13] The gaining of a livelihood should be a
secondary consideration.[14] The duty to public service and to the administration of
justice should be the primary consideration of lawyers, who must subordinate their
personal interests or what they owe to themselves.[15] The following elements
distinguish the legal profession from a business:
1. A duty of public service, of which the emolument is a by-product, and in which one
may attain the highest eminence without making much money;
2. A relation as an officer of the court to the administration of justice involving
thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor, fairness, and
unwillingness to resort to current business methods of advertising and encroachment on
their practice, or dealing directly with their clients.[16]
There is no question that respondent committed the acts complained of. He himself
admits that he caused the publication of the advertisements. While he professes
repentance and begs for the Courts indulgence, his contrition rings hollow considering
the fact that he advertised his legal services again after he pleaded for compassion and
after claiming that he had no intention to violate the rules. Eight months after filing his
answer, he again advertised his legal services in the August 14, 2001 issue of the Buy &
Sell Free Ads Newspaper.[17] Ten months later, he caused the same advertisement to
be published in the October 5, 2001 issue of Buy & Sell.[18] Such acts of respondent
are a deliberate and contemptuous affront on the Courts authority.
What adds to the gravity of respondents acts is that in advertising himself as a self-
styled Annulment of Marriage Specialist, he wittingly or unwittingly erodes and
undermines not only the stability but also the sanctity of an institution still considered
sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in
assuring prospective clients that an annulment may be obtained in four to six months
from the time of the filing of the case,[19] he in fact encourages people, who might
have otherwise been disinclined and would have refrained from dissolving their
marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether proscribed. However, for
solicitation to be proper, it must be compatible with the dignity of the legal profession.
If it is made in a modest and decorous manner, it would bring no injury to the lawyer
and to the bar.[20] Thus, the use of simple signs stating the name or names of the
lawyers, the office and residence address and fields of practice, as well as advertisement
in legal periodicals bearing the same brief data, are permissible. Even the use of calling
cards is now acceptable.[21] Publication in reputable law lists, in a manner consistent
with the standards of conduct imposed by the canon, of brief biographical and
informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:
[22]
Such data must not be misleading and may include only a statement of the lawyers
name and the names of his professional associates; addresses, telephone numbers, cable
addresses; branches of law practiced; date and place of birth and admission to the bar;
schools attended with dates of graduation, degrees and other educational distinctions;
public or quasi-public offices; posts of honor; legal authorships; legal teaching
positions; membership and offices in bar associations and committees thereof, in legal
and scientific societies and legal fraternities; the fact of listings in other reputable law
lists; the names and addresses of references; and, with their written consent, the names
of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose; it cannot
be a mere supplemental feature of a paper, magazine, trade journal or periodical which
is published principally for other purposes. For that reason, a lawyer may not properly
publish his brief biographical and informative data in a daily paper, magazine, trade
journal or society program. Nor may a lawyer permit his name to be published in a law
list the conduct, management, or contents of which are calculated or likely to deceive or
injure the public or the bar, or to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The card may contain
only a statement of his name, the name of the law firm which he is connected with,
Page 4 of 30
address, telephone number and special branch of law practiced. The publication of a
simple announcement of the opening of a law firm or of changes in the partnership,
associates, firm name or office address, being for the convenience of the profession, is
not objectionable. He may likewise have his name listed in a telephone directory but not
under a designation of special branch of law. (emphasis and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is
found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional
Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED
from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution.
He is likewise STERNLY WARNED that a repetition of the same or similar offense
will be dealt with more severely.
Let copies of this Resolution be entered in his record as attorney and be furnished the
Integrated Bar of the Philippines and all courts in the country for their information and
guidance.
SO ORDERED.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.
ii. Rule 3.02
Dacanay vs. Baker and McKenzie, 35 SCRA 34
Adm. Case No. 2131 May 10, 1985
ADRIANO E. DACANAY, complainant
vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA. GUERRERO,
VICENTE A. TORRES, RAFAEL E. EVANGELISTA, JR., ROMEO L. SALONGA,
JOSE R. SANDEJAS, LUCAS M. NUNAG, J. CLARO TESORO, NATIVIDAD B.
KWAN and JOSE A. CURAMMENG, JR., respondents.
Adriano E. Dacanay for and his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for respondents.
AQUINO, J.:
Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980 verified
complaint, sought to enjoin Juan G. Collas, Jr. and nine other lawyers from practising
law under the name of Baker & McKenzie, a law firm organized in Illinois.
In a letter dated November 16, 1979 respondent Vicente A. Torres, using the letterhead
of Baker & McKenzie, which contains the names of the ten lawyers, asked Rosie
Clurman for the release of 87 shares of Cathay Products International, Inc. to H.E.
Gabriel, a client.
Attorney Dacanay, in his reply dated December 7, 1979, denied any liability of
Clurman to Gabriel. He requested that he be informed whether the lawyer of Gabriel is
Baker & McKenzie "and if not, what is your purpose in using the letterhead of another
law office." Not having received any reply, he filed the instant complaint.
We hold that Baker & McKenzie, being an alien law firm, cannot practice law in the
Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by the respondents in their
memorandum, Baker & McKenzie is a professional partnership organized in 1949 in
Chicago, Illinois with members and associates in 30 cities around the world.
Respondents, aside from being members of the Philippine bar, practising under the firm
name of Guerrero & Torres, are members or associates of Baker & Mckenzie.
As pointed out by the Solicitor General, respondents' use of the firm name Baker &
McKenzie constitutes a representation that being associated with the firm they could
"render legal services of the highest quality to multinational business enterprises and
others engaged in foreign trade and investment" (p. 3, respondents' memo). This is
unethical because Baker & McKenzie is not authorized to practise law here. (See Ruben
E. Agpalo, Legal Ethics, 1983 Ed., p. 115.)
WHEREFORE, the respondents are enjoined from practising law under the firm name
Baker & McKenzie.
SO ORDERED.
F. Canon 6
Omar Ali vs. Atty. MosibBubong, 453 SCRA 1
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
Page 5 of 30
This is a verified petition for disbarment[1] filed against Atty. Mosib Ali Bubong for
having been found guilty of grave misconduct while holding the position of Register of
Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the administrative case
earlier filed by complainant against respondent. In said case, which was initially
investigated by the Land Registration Authority (LRA), complainant charged
respondent with illegal exaction; indiscriminate issuance of Transfer Certificate of Title
(TCT) No. T-2821 in the names of Lawan Bauduli Datu, Mona Abdullah,[2] Ambobae
Bauduli Datu, Matabae Bauduli Datu, Mooamadali Bauduli Datu, and Amenola
Bauduli Datu; and manipulating the criminal complaint filed against Hadji Serad
Bauduli Datu and others for violation of the Anti-Squatting Law. It appears from the
records that the Baudali Datus are relatives of respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The investigating
officer, Enrique Basa, absolved respondent of all the charges brought against him, thus:
It is crystal clear from the foregoing that complainant not only failed to prove his case
but that he has no case at all against respondent Mosib Ali Bubong. Wherefore,
premises considered, it is respectfully recommended that the complaint against
respondent be dismissed for lack of merit and evidence.[4]
The case was then forwarded to the Department of Justice for review and in a report
dated 08 September 1992, then Secretary of Justice Franklin Drilon exonerated
respondent of the charges of illegal exaction and infidelity in the custody of documents.
He, however, found respondent guilty of grave misconduct for his imprudent issuance
of TCT No. T-2821 and manipulating the criminal case for violation of the Anti-
Squatting Law instituted against Hadji Serad Bauduli Datu and the latters co-accused.
As a result of this finding, Secretary Drilon recommended respondents dismissal from
service.
On 26 February 1993, former President Fidel V. Ramos issued Administrative Order
No. 41 adopting in toto the conclusion reached by Secretary Drilon and ordering
respondents dismissal from government service. Respondent subsequently questioned
said administrative order before this Court through a petition for certiorari, mandamus,
and prohibition[5] claiming that the Office of the President did not have the authority
and jurisdiction to remove him from office. He also insisted that respondents[6] in that
petition violated the laws on security of tenure and that respondent Reynaldo V. Maulit,
then the administrator of the LRA committed a breach of Civil Service Rules when he
abdicated his authority to resolve the administrative complaint against him (herein
respondent).
In a Resolution dated 15 September 1994, we dismissed the petition for failure on the
part of petitioner to sufficiently show that public respondent committed grave abuse of
discretion in issuing the questioned order.[7] Respondent thereafter filed a motion for
reconsideration which was denied with finality in our Resolution of 15 November 1994.
On the basis of the outcome of the administrative case, complainant is now before us,
seeking the disbarment of respondent. Complainant claims that it has become obvious
that respondent had proven himself unfit to be further entrusted with the duties of an
attorney[8] and that he poses a serious threat to the integrity of the legal profession.[9]
In his Comment, respondent maintains that there was nothing irregular with his
issuance of TCT No. T-2821 in the name of the Bauduli Datus. According to him, both
law[10] and jurisprudence support his stance that it was his ministerial duty, as the
Register of Deeds of Marawi City, to act on applications for land registration on the
basis only of the documents presented by the applicants. In the case of the Bauduli
Datus, nothing in the documents they presented to his office warranted suspicion,
hence, he was duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of criminal
complaint for violation of the Anti-Squatting Law allegedly committed by Hadji Serad
Abdullah and the latters co-defendants. Respondent explains that his participation in
said case was a result of the two subpoenas duces tecum issued by the investigating
prosecutor who required him to produce the various land titles involved in said dispute.
He further claims that the dismissal of said criminal case by the Secretary of Justice was
based solely on the evidence presented by the parties. Complainants allegation,
therefore, that he influenced the outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.
Acting on this resolution, the IBP commenced the investigation of this disbarment suit.
On 23 February 1996, Commissioner Victor C. Fernandez issued the following order
relative to the transfer of venue of this case. The pertinent portion of this order
provides:
ORDER
When this case was called for hearing, both complainant and respondent appeared.
The undersigned Commissioner asked them if they are willing to have the reception of
evidence vis--vis this case be done in Marawi City, Lanao del Sur before the president
of the local IBP Chapter. Both parties agreed. Accordingly, transmit the records of this
case to the Director for Bar Discipline for appropriate action.[12]
Page 6 of 30
On 30 March 1996, the IBP Board of Governors passed a resolution approving
Commissioner Fernandezs recommendation for the transfer of venue of this
administrative case and directed the Western Mindanao Region governor to designate
the local IBP chapter concerned to conduct the investigation, report, and
recommendation.[13] The IBP Resolution states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct the Western
Mindanao Region Governor George C. Jabido to designate the local IBP Chapter
concerned to conduct the investigation, report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar Discipline,
wrote a letter dated 23 October 1996 addressed to Governor George C. Jabido,
President of IBP Cotabato Chapter requesting the latter to receive the evidence in this
case and to submit his recommendation and recommendation as directed by the IBP
Board of Governors.[14]
In an undated Report and Recommendation, the IBP Cotabato Chapter[15] informed the
IBP Commission on Bar Discipline (CBD) that the investigating panel[16] had sent
notices to both complainant and respondent for a series of hearings but respondent
consistently ignored said notices. The IBP Cotabato Chapter concluded its report by
recommending that respondent be suspended from the practice of law for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying for the
transmittal of the records of this case to the Marawi City-Lanao del Sur Chapter of the
IBP pursuant to Resolution No. XII-96-153 as well as Commissioner Fernandezs Order
dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of IBP Cotabato
Chapter to comment on respondents motion.[17] Complying with this directive, the
panel expressed no opposition to respondents motion for the transmittal of the records
of this case to IBP Marawi City.[18] On 25 September 1998, Commissioner Fernandez
ordered the referral of this case to IBP Marawi City for the reception of respondents
evidence.[19] This order of referral, however, was set aside by the IBP Board of
Governors in its Resolution No. XIII-98-268 issued on 4 December 1998. Said
resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez for the
transmittal of the case records of the above-entitled case to Marawi City, rather he is
directed to re-evaluate the recommendation submitted by Cotabato Chapter and report
the same to the Board of Governors.[20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on 08 October
1998 a motion praying that the recommendation of the IBP Cotabato Chapter be
stricken from the records.[21] Respondent insists that the investigating panel
constituted by said IBP chapter did not have the authority to conduct the investigation
of this case since IBP Resolution XII-96-153 and Commissioner Fernandezs Order of
23 February 1996 clearly vested IBP Marawi City with the power to investigate this
case. Moreover, he claims that he was never notified of any hearing by the investigating
panel of IBP Cotabato Chapter thereby depriving him of his right to due process.
Complainant opposed[22] this motion arguing that respondent is guilty of laches.
According to complainant, the report and recommendation submitted by IBP Cotabato
Chapter expressly states that respondent was duly notified of the hearings conducted by
the investigating panel yet despite these, respondent did nothing to defend himself. He
also claims that respondent did not even bother to submit his position paper when he
was directed to do so. Further, as respondent is a member of IBP Marawi City Chapter,
complainant maintains that the presence of bias in favor of respondent is possible.
Finally, complainant contends that to refer the matter to IBP Marawi City would only
entail a duplication of the process which had already been completed by IBP Cotabato
Chapter.
In an Order dated 15 October 1999,[23] Commissioner Fernandez directed IBP
Cotabato Chapter to submit proofs that notices for the hearings conducted by the
investigating panel as well as for the submission of the position paper were duly
received by respondent. On 21 February 2000, Atty. Jabido, a member of the IBP
Cotabato Chapter investigating panel, furnished Commissioner Fernandez with a copy
of the panels order dated 4 August 1997.[24] Attached to said order was Registry
Receipt No. 3663 issued by the local post office. On the lower portion of the registry
receipt was a handwritten notation reading Atty. Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S. Castillo, Chairman
of the Commission on Bar Discipline for Mindanao, to reevaluate the report and
recommendation submitted by IBP Cotabato Chapter. This directive had the approval of
the IBP Board of Governors through its Resolution No. XIV-2001-271 issued on 30
June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor C. Fernandez for
the Transfer of Venue of the above-entitled case and direct the CBD Mindanao to
Page 7 of 30
conduct an investigation, re-evaluation, report and recommendation within sixty (60)
days from receipt of notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of her father,
Omar P. Ali, complainant in this case. According to her, her father passed away on 12
June 2002 and that in interest of peace and Islamic brotherhood, she was requesting the
withdrawal of this case.[26]
Subsequently, respondent filed another motion, this time, asking the IBP CBD to direct
the chairman of the Commission on Bar Discipline for Mindanao to designate and
authorize the IBP Marawi City-Lanao del Sur Chapter to conduct an investigation of
this case.[27] This motion was effectively denied by Atty. Pedro S. Castillo in an Order
dated 19 July 2002.[28] According to Atty. Castillo
After going over the voluminous records of the case, with special attention made on the
report of the IBP Cotabato City Chapter, the Complaint and the Counter-Affidavit of
respondent, the undersigned sees no need for any further investigation, to be able to
make a re-evaluation and recommendation on the Report of the IBP Chapter of
Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City, Zamboanga
del Norte is hereby denied. The undersigned will submit his Report to the Commission
on Bar Discipline, IBP National Office within ten (10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the findings and
conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the Office of the
President in Administrative Case No. 41 dated February 26, 1993, wherein herein
respondent was found guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-squatting law.
And penalized with dismissal from the service, as Register of Deeds of Marawi City. In
the Comment filed by respondent in the instant Adminsitrative Case, his defense is
good faith in the issuance of T.C.T. No. T-2821 and a denial of the charge of
manipulating the criminal complaint for violation of the anti-squatting law, which by
the way, was filed against respondents relatives. Going over the Decision of the Office
of the President in Administrative Case No. 41, the undersigned finds substantial
evidence were taken into account and fully explained, before the Decision therein was
rendered. In other words, the finding of Grave Misconduct on the part of respondent by
the Office of the President was fully supported by evidence and as such carries a very
strong weight in considering the professional misconduct of respondent in the present
case.
In the light of the foregoing, the undersigned sees no reason for amending or disturbing
the Report and Recommendation of the IBP Chapter of South Cotabato.[29]
In a resolution passed on 19 October 2002, the IBP Board of Governors adopted and
approved, with modification, the afore-quoted Report and Recommendation of Atty.
Castillo. The modification pertained solely to the period of suspension from the practice
of law which should be imposed on respondent whereas Atty. Castillo concurred in the
earlier recommendation of IBP Cotabato Chapter for a five-year suspension, the IBP
Board of Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with the IBP which
the latter denied as by that time, the matter had already been endorsed to this Court.[30]
The issue thus posed for this Courts resolution is whether respondent may be disbarred
for grave misconduct committed while he was in the employ of the government. We
resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a lawyer simply
because he has joined the government service. In fact, by the express provision of
Canon 6 thereof, the rules governing the conduct of lawyers shall apply to lawyers in
government service in the discharge of their official tasks. Thus, where a lawyers
misconduct as a government official is of such nature as to affect his qualification as a
lawyer or to show moral delinquency, then he may be disciplined as a member of the
bar on such grounds.[31] Although the general rule is that a lawyer who holds a
government office may not be disciplined as a member of the bar for infractions he
committed as a government official, he may, however, be disciplined as a lawyer if his
misconduct constitutes a violation of his oath a member of the legal profession.[32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we ordered the
disbarment of respondent on the ground of his dismissal from government service
because of grave misconduct. Quoting the late Chief Justice Fred Ruiz Castro, we
declared
[A] person takes an oath when he is admitted to the bar which is designed to impress
upon him his responsibilities. He thereby becomes an officer of the court on whose
shoulders rests the grave responsibility of assisting the courts in the proper, fair, speedy
and efficient administration of justice. As an officer of the court he is subject to a rigid
discipline that demands that in his every exertion the only criterion be that truth and
justice triumph. This discipline is what has given the law profession its nobility, its
Page 8 of 30
prestige, its exalted place. From a lawyer, to paraphrase Justice Felix Frankfurter, are
expected those qualities of truth-speaking, a high sense of honor, full candor,
intellectual honesty, and the strictest observance of fiduciary responsibility all of which,
throughout the centuries, have been compendiously described as moral character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig,[35] this Court found
sufficient basis to disbar respondent therein for gross misconduct perpetrated while she
was the Officer-in-Charge of Legal Services of the Commission on Higher Education.
As we had explained in that case
[A] lawyer in public office is expected not only to refrain from any act or omission
which might tend to lessen the trust and confidence of the citizenry in government, she
must also uphold the dignity of the legal profession at all times and observe a high
standard of honesty and fair dealing. Otherwise said, a lawyer in government service is
a keeper of the public faith and is burdened with high degree of social responsibility,
perhaps higher than her brethren in private practice.[36] (Emphasis supplied)
In the case at bar, respondents grave misconduct, as established by the Office of the
President and subsequently affirmed by this Court, deals with his qualification as a
lawyer. By taking advantage of his office as the Register of Deeds of Marawi City and
employing his knowledge of the rules governing land registration for the benefit of his
relatives, respondent had clearly demonstrated his unfitness not only to perform the
functions of a civil servant but also to retain his membership in the bar. Rule 6.02 of the
Code of Professional Responsibility is explicit on this matter. It reads:
Rule 6.02 A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere with his public
duties.
Respondents conduct manifestly undermined the peoples confidence in the public office
he used to occupy and cast doubt on the integrity of the legal profession. The ill-
conceived use of his knowledge of the intricacies of the law calls for nothing less than
the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainants daughter, requesting for
the withdrawal of this case, we cannot possibly favorably act on the same as
proceedings of this nature cannot be interrupted or terminated by reason of desistance,
settlement, compromise, restitution, withdrawal of the charges or failure of the
complainant to prosecute the same.[37] As we have previously explained in the case of
Irene Rayos-Ombac v. Atty. Orlando A. Rayos:[38]
A case of suspension or disbarment may proceed regardless of interest or lack of
interest of the complainant. What matters is whether, on the basis of the facts borne out
by the record, the charge of deceit and grossly immoral conduct has been duly proven.
This rule is premised on the nature of disciplinary proceedings. A proceeding for
suspension or disbarment is not in any sense a civil action where the complainant is a
plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private grievance. They are undertaken and
prosecuted solely for the public welfare. They are undertaken for the purpose of
preserving courts of justice from the official ministration of persons unfit to practice in
them. The attorney is called to answer to the court for his conduct as an officer of the
court. The complainant or the person who called the attention of the court to the
attorneys alleged misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper administrative of justice.
[39]
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby DISBARRED and his
name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this
Decision be entered in the respondents record as a member of the Bar, and notice of the
same be served on the Integrated Bar of the Philippines, and on the Office of the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
Huyssen vs. Gutierrez, AC No. 6707, March 24, 2006
A.C. No. 6707 March 24, 2006
GISELA HUYSSEN, Complainant,
vs.
ATTY. FRED L. GUTIERREZ, Respondent.
DECISION
PER CURIAM:
This treats of a Complaint1 for Disbarment filed by Gisela Huyssen against respondent
Atty. Fred L. Gutierrez.
Complainant alleged that in 1995, while respondent was still connected with the Bureau
of Immigration and Deportation (BID), she and her three sons, who are all American
citizens, applied for Philippine Visas under Section 13[g] of the Immigration Law.
Respondent told complainant that in order that their visa applications will be favorably
Page 9 of 30
acted upon by the BID they needed to deposit a certain sum of money for a period of
one year which could be withdrawn after one year. Believing that the deposit was
indeed required by law, complainant deposited with respondent on six different
occasions from April 1995 to April 1996 the total amount of US$20,000. Respondent
prepared receipts/vouchers as proofs that he received the amounts deposited by the
complainant but refused to give her copies of official receipts despite her demands.
After one year, complainant demanded from respondent the return of US$20,000 who
assured her that said amount would be returned. When respondent failed to return the
sum deposited, the World Mission for Jesus (of which complainant was a member) sent
a demand letter to respondent for the immediate return of the money. In a letter dated 1
March 1999, respondent promised to release the amount not later than 9 March 1999.
Failing to comply with his promise, the World Mission for Jesus sent another demand
letter. In response thereto, respondent sent complainant a letter dated 19 March 1999
explaining the alleged reasons for the delay in the release of deposited amount. He
enclosed two blank checks postdated to 6 April and 20 April 1999 and authorized
complainant to fill in the amounts. When complainant deposited the postdated checks
on their due dates, the same were dishonored because respondent had stopped payment
on the same. Thereafter, respondent, in his letter to complainant dated 25 April 1999,
explained the reasons for stopping payment on the checks, and gave complainant five
postdated checks with the assurance that said checks would be honored. Complainant
deposited the five postdated checks on their due dates but they were all dishonored for
having been drawn against insufficient funds or payment thereon was ordered stopped
by respondent. After respondent made several unfulfilled promises to return the
deposited amount, complainant referred the matter to a lawyer who sent two demand
letters to respondent. The demand letters remained unheeded.
Thus, a complaint2 for disbarment was filed by complainant in the Commission on Bar
Discipline of the Integrated Bar of the Philippines (IBP).
On 15 November 2000, Victor C. Fernandez, Director for Bar Discipline, required3
respondent to submit his answer within 15 days from receipt thereof.
In his Counter-Affidavit dated 2 July 2001,4 respondent denied the allegations in the
complaint claiming that having never physically received the money mentioned in the
complaint, he could not have appropriated or pocketed the same. He said the amount
was used as payment for services rendered for obtaining the permanent visas in the
Philippines. Respondent explained thus:
a) Through a close-friend, Jovie Galaraga, a Pastor and likewise a friend of the
complainant, the latter was introduced to me at my office at the Bureau of Immigration
with a big problem concerning their stay in the Philippines, herself and three sons, one
of which is already of major age while the two others were still minors then. Their
problem was the fact that since they have been staying in the Philippines for almost ten
(10) years as holders of missionary visas (9G) they could no longer extend their said
status as under the law and related polic[i]es of the government, missionary visa holders
could only remain as such for ten (10) years after which they could no longer extend
their said status and have to leave the country.
b) Studying their case and being U.S. Citizen (sic), I advised them that they better
secure a permanent visa under Section 3 of the Philippine Immigration Law otherwise
known as Quota Visa and thereafter, provided them with list of the requirements in
obtaining the said visa, one of which is that the applicant must have a $40,000
deposited in the bank. I also inform that her son Marcus Huyssen, who was already of
major age, has to have the same amount of show money separate of her money as he
would be issued separate visa, while her two minor children would be included as her
dependents in her said visa application. I advised them to get a lawyer (sic),
complainant further requested me to refer to her to a lawyer to work for their
application, which I did and contacted the late Atty. Mendoza, an Immigration lawyer,
to do the job for the complainant and her family.
c) The application was filed, processed and followed-up by the said Atty. Mendoza
until the same was finished and the corresponding permanent visa were obtained by the
complainant and her family. Her son Marcus Huyssen was given an independent
permanent visa while the other two were made as dependents of the complainant. In
between the processing of the papers and becoming very close to the complainant, I
became the intermediary between complainant and their counsel so much that every
amount that the latter would request for whatever purpose was coursed through me
which request were then transmitted to the complainant and every amount of money
given by the complainant to their counsel were coursed thru me which is the very
reason why my signature appears in the vouchers attached in the complaint-affidavit;
d) That as time goes by, I noticed that the amount appeared to be huge for services of a
lawyer that I myself began to wonder why and, to satisfy my curiosity, I met Atty.
Mendoza and inquired from him regarding the matter and the following facts were
revealed to me:
1) That what was used by the complainant as her show money from the bank is not
really her money but money of World Mission for Jesus, which therefore is a serious
violation of the Immigration Law as there was a misrepresentation. This fact was
confirmed later when the said entity sent their demand letter to the undersigned affiant
and which is attached to the complaint-affidavit;
2) That worst, the same amount used by the complainant, was the very same amount
used by her son Marcus Huyssen, in obtaining his separate permanent visa. These acts
of the complainant and her son could have been a ground for deportation and likewise
constitute criminal offense under the Immigration Law and the Revised Penal Code.
Page 10 of 30
These could have been the possible reason why complainant was made to pay for quite
huge amount.
e) That after they have secured their visas, complainant and her family became very
close to undersigned and my family that I was even invited to their residence several
times;
f) However after three years, complainant demanded the return of their money given
and surprisingly they want to recover the same from me. By twist of fate, Atty.
Mendoza is no longer around, he died sometime 1997;
g) That it is unfortunate that the real facts of the matter is now being hidden and that the
amount of money is now being sought to be recovered from me;
h) That the fact is I signed the vouchers and being a lawyer I know the consequences of
having signed the same and therefore I had to answer for it and pay. I tried to raised the
fund needed but up to the present my standby loan application has not been released
and was informed that the same would only be forthcoming second week of August.
The same should have been released last March but was aborted due to prevalent
condition. The amount to be paid, according to the complainant has now become
doubled plus attorney’s fees of P200,000.00.
Complainant submitted her evidence on 4 September 2002 and April 2003, and filed
her Formal Offer of Evidence on 25 August 2003.
On several occasions, the complaint was set for reception of respondent’s evidence but
the scheduled hearings (11 settings) were all reset at the instance of the respondent who
was allegedly out of the country to attend to his client’s needs. Reception of
respondent’s evidence was scheduled for the last time on 28 September 2004 and again
respondent failed to appear, despite due notice and without just cause.
On 5 November 2004, Investigating Commissioner Milagros V. San Juan submitted her
report5 recommending the disbarment of respondent. She justified her recommendation
in this manner:
At the outset it should be noted that there is no question that respondent received the
amount of US$20,000 from complainant, as respondent himself admitted that he signed
the vouchers (Annexes A to F of complainant) showing his receipt of said amount from
complainant. Respondent however claims that he did not appropriate the same for
himself but that he delivered the said amount to a certain Atty. Mendoza. This defense
raised by respondent is untenable considering the documentary evidence submitted by
complainant. On record is the 1 March 1999 letter of respondent addressed to the World
Mission for Jesus (Annex H of Complaint) where he stated thus:
"I really understand your feelings on the delay of the release of the deposit but I repeat,
nobody really intended that the thing would happen that way. Many events were the
causes of the said delay particularly the death of then Commissioner L. Verceles, whose
sudden death prevented us the needed papers for the immediate release. It was only
from compiling all on the first week of January this year, that all the said papers were
recovered, hence, the process of the release just started though some important papers
were already finished as early as the last quarter of last year. We are just going through
the normal standard operating procedure and there is no day since January that I do not
make any follow – ups on the progress of the same."
and his letter dated 19 March 1999 (Annex L of Complaint) where he stated thus:
"I am sending you my personal checks to cover the refund of the amount deposited by
your good self in connection with the procurement of your permanent visa and that of
your family. It might take some more time before the Bureau could release the refund as
some other pertinent papers are being still compiled are being looked at the files of the
late Commissioner Verceles, who approved your visa and who died of heart attack.
Anyway, I am sure that everything would be fine later as all the documents needed are
already intact. This is just a bureaucratic delay."
From the above letters, respondent makes it appear that the US$20,000 was officially
deposited with the Bureau of Immigration and Deportation. However, if this is true,
how come only Petty Cash Vouchers were issued by respondent to complainant to
prove his receipt of the said sum and official receipts therefore were never issued by the
said Bureau? Also, why would respondent issue his personal checks to cover the return
of the money to complainant if said amount was really officially deposited with the
Bureau of Immigration? All these actions of respondent point to the inescapable
conclusion that respondent received the money from complainant and appropriated the
same for his personal use. It should also be noted that respondent has failed to establish
that the "late Atty. Mendoza" referred to in his Counter-Affidavit really exists. There is
not one correspondence from Atty. Mendoza regarding the visa application of
complainant and his family, and complainant has also testified that she never met this
Atty. Mendoza referred to by respondent.
Considering that respondent was able to perpetrate the fraud by taking advantage of his
position with the Board of Special Inquiry of the Bureau of Immigration and
Deportation, makes it more reprehensible as it has caused damage to the reputation and
integrity of said office. It is submitted that respondent has violated Rule 6.02 of Canon
6 of the Code of Professional Responsibility which reads:
"A lawyer in the government service shall not use his public position to promote or
advance his private interests, nor allow the latter to interfere with his public duties."
Page 11 of 30
On 4 November 2004, the IBP Board of Governors approved6 the Investigating
Commissioner’s report with modification, thus:
RESOLVED to ADOPT and APPROVE, as it hereby ADOPTED and APPROVED,
with modification, the Report and Recommendation of the Investigating Commissioner
of the above-entitled case, herein made part of this Resolution as Annex "A"; and,
finding the recommendation fully supported by the evidence on record and applicable
laws and rules, and considering respondent’s violation of Rule 6.02 of Canon 6 of the
Code of Professional Responsibility, Atty. Fred L. Gutierrez is hereby DISBARRED
from the practice of law and ordered to return the amount with legal interest from
receipt of the money until payment. This case shall be referred to the Office of the
Ombudsman for prosecution for violation of Anti-Graft and Corrupt Practices Acts and
to the Department of Justice for appropriate administrative action.
We agree with the IBP Board of Governors that respondent should be severely
sanctioned.
We begin with the veritable fact that lawyers in government service in the discharge of
their official task have more restrictions than lawyers in private practice. Want of moral
integrity is to be more severely condemned in a lawyer who holds a responsible public
office.7
It is undisputed that respondent admitted8 having received the US$20,000 from
complainant as shown by his signatures in the petty cash vouchers9 and receipts10 he
prepared, on the false representation that that it was needed in complainant’s
application for visa with the BID. Respondent denied he misappropriated the said
amount and interposed the defense that he delivered it to a certain Atty. Mendoza who
assisted complainant and children in their application for visa in the BID.11 Such
defense remains unsubstantiated as he failed to submit evidence on the matter. While he
claims that Atty. Mendoza already died, he did not present the death certificate of said
Atty. Mendoza. Worse, the action of respondent in shifting the blame to someone who
has been naturally silenced by fate, is not only impudent but downright ignominious.
When the integrity of a member of the bar is challenged, it is not enough that he deny
the charges against him; he must meet the issue and overcome the evidence against
him.12 He must show proof that he still maintains that degree of morality and integrity
which at all times is expected of him. In the case at bar, respondent clearly fell short of
his duty. Records show that even though he was given the opportunity to answer the
charges and controvert the evidence against him in a formal investigation, he failed,
without any plausible reason, to appear several times whenever the case was set for
reception of his evidence despite due notice.
The defense of denial proferred by respondent is, thus, not convincing. It is settled that
denial is inherently a weak defense. To be believed, it must be buttressed by a strong
evidence of non-culpability; otherwise, such denial is purely self-serving and is with nil
evidentiary value.
When respondent issued the postdated checks as his moral obligation, he indirectly
admitted the charge. Such admissions were also apparent in the following letters of
respondent to complainant:
1) Letter13 dated 01 March 1992, pertinent portion of which reads:
Be that as it may, may I assure you for the last time that the said deposit is forthcoming,
the latest of which is 09 March 1999. Should it not be released on said date, I
understand to pay the same to you out of my personal money on said date. No more
reasons and no more alibis. Send somebody here at the office on that day and the
amount would be given to you wether (sic) from the Bureau or from my own personal
money.
2) Letter14 dated 19 March 1999, reads in part:
I am sending you my personal checks to cover the refund of the amount deposited by
your goodself in connection with the procurement of your permanent visa and that of
your family.
It might take some more time before the Bureau could release the refund as some other
pertinent papers are still being compiled and are being looked at the files of the late
Commissioner Verceles, who approved your visa and who died of heart attack.
Anyway, I am sure that everything would be fine later as all the documents needed are
already intact. This is just a bureaucratic delay.
xxxx
As you would see, I have to pay you in peso. I have issued you 2 checks, one dated
April 6, 1999 and the other one dated April 20, 1999. I leave the amount vacant because
I would want you to fill them up on their due dates the peso equivalent to $10,000
respectively. This is to be sure that the peso equivalent of your P20,000 would be well
exchanged. I have postdated them to enable me to raise some more pesos to cover the
whole amount but don’t worry as the Lord had already provided me the means.
3) Letter15 dated 25 April 1999 provides:
Anyway, let me apologize for all these troubles. You are aware that I have done my
very best for the early return of your money but the return is becoming bleak as I was
informed that there are still papers lacking. When I stopped the payment of the checks I
issued, I was of the impression that everything is fine, but it is not. I guess it is time for
me to accept the fact that I really have to personally return the money out of my own.
Page 12 of 30
The issue should stop at my end. This is the truth that I must face. It may hurt me
financially but it would set me free from worries and anxieties.
I have arranged for a loan from money lenders and was able to secure one last Saturday
the releases of which are on the following:
May 4, 1999- 200,000
May 11, 1999 -200,000
May 20, 1999-200,000
June 4, 1999-200,000
I have given my property (lot situated in the province) as my collateral.
I am therefore putting an end to this trouble. I am issuing four checks which I assure
you will be sufficiently funded on their due dates by reason of my aforestated loans.
Just bear with me for the last time, if any of these checks, is returned, don’t call me
anymore. Just file the necessary action against me, I just had to put an end to this matter
and look forward. x x x
4) Letter16 dated 12 May 1999, which reads:
The other day I deposited the amount of P289,000 to the bank to cover the first check I
issued. In fact I stopped all payments to all other checks that are becoming due to some
of my creditors to give preference to the check I issued to you.
This morning when I went to the Bank, I learned that the bank instead of returning the
other checks I requested for stop payment - instead honored them and mistakenly
returned your check. This was a very big surprise to me and discouragement for I know
it would really upset you.
In view of this I thought of sending you the amount of P200,000 in cash which I
initially plan to withdraw from the Bank. However, I could not entrust the same amount
to the bearer nor can I bring the same to your place considering that its quite a big
amount. I am just sending a check for you to immediately deposit today and I was
assured by the bank that it would be honored this time.
Normally, this is not the actuation of one who is falsely accused of appropriating the
money of another. As correctly observed by the Investigating Commissioner,
respondent would not have issued his personal checks if said amount were officially
deposited with the BID. This is an admission of misconduct.
Respondent’s act of asking money from complainant in consideration of the latter’s
pending application for visas is violative of Rule 1.0117 of the Code of Professional
Responsibility, which prohibits members of the Bar from engaging or participating in
any unlawful, dishonest, or deceitful acts. Moreover, said acts constitute a breach of
Rule 6.0218 of the Code which bars lawyers in government service from promoting
their private interest. Promotion of private interest includes soliciting gifts or anything
of monetary value in any transaction requiring the approval of his office or which may
be affected by the functions of his office.19 Respondent’s conduct in office betrays the
integrity and good moral character required from all lawyers, especially from one
occupying a high public office. A lawyer in public office is expected not only to refrain
from any act or omission which might tend to lessen the trust and confidence of the
citizenry in government; he must also uphold the dignity of the legal profession at all
times and observe a high standard of honesty and fair dealing. Otherwise said, a lawyer
in government service is a keeper of the public faith and is burdened with high degree
of social responsibility, perhaps higher than his brethren in private practice.
In a desperate attempt to put up a smoke or to camouflage his misdeed, he went on
committing another by issuing several worthless checks, thereby compounding his case.
In a recent case, we have held that the issuance of worthless checks constitutes gross
misconduct,20 as the effect "transcends the private interests of the parties directly
involved in the transaction and touches the interests of the community at large. The
mischief it creates is not only a wrong to the payee or holder, but also an injury to the
public since the circulation of valueless commercial papers can very well pollute the
channels of trade and commerce, injure the banking system and eventually hurt the
welfare of society and the public interest. Thus, paraphrasing Black’s definition, a
drawer who issues an unfunded check deliberately reneges on his private duties he owes
his fellow men or society in a manner contrary to accepted and customary rule of right
and duty, justice, honesty or good morals."21
Consequently, we have held that the act of a person in issuing a check knowing at the
time of the issuance that he or she does not have sufficient funds in, or credit with, the
drawee bank for the payment of the check in full upon its presentment, is also a
manifestation of moral turpitude.22
Respondent’s acts are more despicable. Not only did he misappropriate the money of
complainant; worse, he had the gall to prepare receipts with the letterhead of the BID
and issued checks to cover up his misdeeds. Clearly, he does not deserve to continue,
being a member of the bar.
Time and again, we have declared that the practice of law is a noble profession. It is a
special privilege bestowed only upon those who are competent intellectually,
academically and morally. A lawyer must at all times conduct himself, especially in his
Page 13 of 30
dealings with his clients and the public at large, with honesty and integrity in a manner
beyond reproach. He must faithfully perform his duties to society, to the bar, to the
courts and to his clients. A violation of the high standards of the legal profession
subjects the lawyer to administrative sanctions which includes suspension and
disbarment.23 More importantly, possession of good moral character must be
continuous as a requirement to the enjoyment of the privilege of law practice;
otherwise, the loss thereof is a ground for the revocation of such privilege.24
Indeed, the primary objective of administrative cases against lawyers is not only to
punish and discipline the erring individual lawyers but also to safeguard the
administration of justice by protecting the courts and the public from the misconduct of
lawyers, and to remove from the legal profession persons whose utter disregard of their
lawyer’s oath have proven them unfit to continue discharging the trust reposed in them
as members of the bar.25 These pronouncement gain practical significance in the case
at bar considering that respondent was a former member of the Board of Special Inquiry
of the BID. It bears stressing also that government lawyers who are public servants owe
fidelity to the public service, a public trust. As such, government lawyers should be
more sensitive to their professional obligations as their disreputable conduct is more
likely to be magnified in the public eye.26
As a lawyer, who was also a public officer, respondent miserably failed to cope with the
strict demands and high standards of the legal profession.
Section 27, Rule 138 of the Revised Rules of Court mandates that a lawyer may be
disbarred or suspended by this Court for any of the following acts: (1) deceit; (2)
malpractice; (3) gross misconduct in office; (4) grossly immoral conduct; (5) conviction
of a crime involving moral turpitude ; (6) violation of the lawyer’s oath; (7) willful
disobedience of any lawful order of a superior court; and (8) willfully appearing as an
attorney for a party without authority to do so.27
In Atty. Vitriolo v. Atty. Dasig,28 we ordered the disbarment of a lawyer who, during
her tenure as OIC, Legal Services, Commission on Higher Education, demanded sums
of money as consideration for the approval of applications and requests awaiting action
by her office. In Lim v. Barcelona,29 we also disbarred a senior lawyer of the National
Labor Relations Commission, who was caught by the National Bureau of Investigation
in the act of receiving and counting money extorted from a certain person.
Respondent’s acts constitute gross misconduct; and consistent with the need to maintain
the high standards of the Bar and thus preserve the faith of the public in the legal
profession, respondent deserves the ultimate penalty of expulsion from the esteemed
brotherhood of lawyers.30
WHEREFORE, Atty. Fred L. Gutierrez is hereby DISBARRED from the practice of
law and ordered to return the amount he received from the complainant with legal
interest from his receipt of the money until payment. This case shall be referred to the
Office of the Ombudsman for criminal prosecution for violation of Anti-Graft and
Corrupt Practices Acts and to the Department of Justice for appropriate administrative
action. Let copies of this Decision be furnished the Bar Confidant to be spread on the
records of the respondent; the Integrated Bar of the Philippines for distribution to all its
chapters; and the Office of the Court Administrator for dissemination to all courts
throughout the country.
SO ORDERED.
i. Rule 6.01
Trieste, Sr. vs. Sandiganbayan, 145 SCRA 508
G.R. No. 70332-43 November 13, 1986
GENEROSO TRIESTE, SR., petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION), respondent.
Arturo M. de Castro for petitioner.
The Solicitor General for respondent.
ALAMPAY, J.:
The present case relates to an appeal by way of a Petition for Review of the decision
promulgated on November 6, 1984, by the Sandiganbayan convicting the herein
petitioner, Generoso Trieste, Sr., of twelve (12) separate violations of Section 3
paragraph (h) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt
Practices - Act, which petitioner were accused of in Criminal Cases Nos. 6856-6867 of
said Court. Petitioner's motion for reconsideration and/or new trial was denied by the
respondent Sandiganbayan under its Resolution of March 11, 1985.
The twelve (12) separate Informations filed by the Tanodbayan against the herein
petitioner for violation of Section 3 (h) of the Anti-Graft Law are all similarly worded
as the information presented in Criminal Case No. 6856 which is hereunder quoted:
That on or about the month of July, 1980 and some time subsequent thereto, in the
municipality of Numancia, Aklan, Philippines, and within the jurisdiction of this
Page 14 of 30
Honorable Court, the abovenamed accused, being then the Municipal Mayor and
member of the Committee on Award of the Municipality of Numancia, Aklan and as
such, had administrative control of the funds of the municipality and whose approval is
required in the disbursements of municipal funds, did then and there wilfully and
unlawfully have financial or pecuniary interest in a business, contract or transaction in
connection with which said accused intervened or took part in his official capacity and
in which he is prohibited by law from having any interest, to wit the purchases of
construction materials by the Municipality of Numancia, Aklan from Trigen Agro-
Industrial Development Corporation, of which the accused is the president,
incorporator, director and major stockholder paid under Municipal Voucher No. 211-
90-10-174 in the amount of P558.80 by then and there awarding the supply and delivery
of said materials to Trigen Agro-Industrial Development Corporation and approving
payment thereof to said corporation in violation of the Anti-Graft and corrupt Practices
Act.
except only as to the dates of the commission of the offense, voucher numbers, and
amounts involved.
Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were allegedly
committed in July, 1980; Criminal Cases Nos. 6863 and 6864, in August, 1980; and
Criminal Cases Nos. C-865, 6866 and 6867 in October, 1980. The separate vouchers
involved in the twelve (12) cases are said to be the following:
Crim. Case #6856, Vchr #211-90-10-174 at P558.80
Crim. Case #6857, Vchr #211-80-10-187 at 943.60
Crim. Case #6858, Vchr #211-80-10-189 at 144.00
Crim. Case #6859, Vchr #211-80-10-190 at 071.30
Crim. Case #6860, Vchr #211-80-10-191 at 270.00
Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00
Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80
Crim. Case #6863, Vchr #211-80-10-407 at 150.00
Crim. Case #6864, Vchr #211-80-12-494 at 500.00
Crim. Case #6865, Vchr #211-81-04-61 at 840.00
Crim. Case #6866, Vchr #211-81-04-62 at 787.00
Crim. Case #6867, Vchr #211-81-04-63 at 560.00
T o t a l - - - - P7,730.50
(Consolidated Comment, pg. 4; Rollo, 325)
After trial, the Sandiganbayan rendered the challenged decision dated November 6,
1984, convicting the petitioner in all the twelve (12) criminal cases, (Rollo, pp. 324-
325) and in each case he was sentenced,"...to suffer the indeterminate penalty of
imprisonment ranging from THREE (3) YEARS and ONE (1) DAY as the minimum, to
SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer perpetual
disqualification from the public office, and to pay the cost of the action." (pp. 37-40,
Decision; Rollo, 322).
After the petition for review was filed in this case and pending the submission by
respondent of its comment to the petition, herein petitioner presented to this Court on
June 7, 1985, an urgent petition to lift the order of the Sandiganbayan dated September
12, 1983, suspending him from Office as the elected Municipal Mayor of Numancia,
Aklan. His term was to expire in 1986. No objection to the petition for the lifting of the
suspension order was interposed by the Solicitor General. Accordingly, and pursuant to
the resolution of this Court dated October 1, 1985, petitioner's preventive suspension
was lifted and his reinstatement as Municipal Mayor of Numancia, Aklan was ordered
to take effect immediately.
A supplemental petition, dated October 10, 1985, was later filed by petitioner's new
counsel in collaboration with the original counsel on record of petitioner. In this
supplemental pleading, it was vigorously stressed that the petitioner did not, in any
way, intervene in making the awards and payment of the purchases in question as he
signed the voucher only after all the purchases had already been made, delivered and
paid for by the Municipal Treasurer. It was further pointed out that there was no
bidding at all as erroneously adverted to in the twelve informations filed against herein
petitioner because the transactions involved were emergency direct purchases by
personal canvass.
Upon leave of the Court given, the former Solicitor General filed a consolidated
comment dated November 4, 1984, to the original petition filed in this case dated April
30, 1985 as well as on the supplemental petition dated October 10, 1985. He argued the
dismissal of the petition on the ground that the same raise factual issues which are,
therefore, non-reviewable (Consolidated Comment, pg. 20; Rollo, 341). The submission
made by the Office of the Solicitor General in the Consolidated Comment dated
November 4, 1986, are hereunder quoted:
xxx xxx xxx
Page 15 of 30
The impugned decision convicted petitioner for violation of Section 3 (h), paragraph (h)
of the Anti-Graft and Corrupt Practices Act which reads as follows:
SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of
public officers already penalized by existing laws, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in any business,
contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any law from
having any interest.
The elements essential in the commission of the crime are:
a) The public officer has financial or pecuniary interest in a business, contract or
transaction;
b) In connection with which he intervenes in his official capacity.
Concurrence of both elements is necessary as the absence of one will not warrant
conviction. (Rollo, pp. 338-339).
The earlier view taken by the Solicitor General's Office was that petitioner's evidence of
divestment of interest in Trigen 'Corporation, which is said to have been effected on
February 25, 1980, before the petitioner assumed the Mayorship, should have been
presented at the earliest opportunity before the Tanodbayan and because this was not
done by him the resolution of the Tanodbayan finding a prima facie case against
petitioner should be sustained. Furthermore, petitioner was faulted because the transfer
of his interest in the corporate stock of Trigen Corporation should have been recorded
in the Securities and Exchange Commission but no evidence of this sort, was presented.
The consolidated comment also played up the advertisement of Trigen Corporation in
the program of the Rotary Club of Kalibo, Aklan, showing the printed name of
petitioner as the President-Manager of the said corporation. (Consolidated Comment;
Rollo, pp. 340-341)
Petitioner filed a Reply controverting the allegations and arguments recited in the
aforestated Consolidated Comment of the Solicitor General.
After considering the pleadings filed and deliberating on the issues raised in the petition
and supplemental petition for review on certiorari of the decision of the Sandiganbayan,
as well as the consolidated comment and the reply thereto filed by petitioner's counsel,
the Court in its resolution of January 16, 1986, gave due course to the petition and
required the parties to file their respective briefs.
Petitioner's exhaustive and well-reasoned out Brief which was filed with the Court on
April 14, 1986, raised the following legal questions.
xxx xxx xxx
From the foregoing recital of facts, the following legal questions arise:
1. Does the mere signing by a Municipal Mayor of municipal vouchers and
other supporting papers covering purchases of materials previously ordered by the
Municipal Treasurer without the knowledge and consent of the former, subsequently
delivered by the supplier, and, thereafter paid by the same Municipal Treasurer also
without the knowledge and consent of the Municipal Mayor, constitute a violation of
the provisions of Section 3 (h) of Rep. Act No. 3019 otherwise known as the Anti-Graft
and Corrupt Practices Act?
2. Does the mere signing of the mere documents above constitute the kind of
intervention of taking part in (his) official capacity within the context of the above-
mentioned law?
3. Was damage or prejudice, as an element of the offense under Section 3 (h) of
the said law, caused to the Government or the Municipality of Numancia as a result of
the contracts in question and as a corollary thereto, was undue advantage and gained by
the transacting corporation?
4. Was there divestment on the part of the herein petitioner of his shares in
Trigen Agro-Industrial Development Corporation long before the questioned
transactions? (Appellant's Brief, page 15)
It was then discus and argued by the petitioner that the prosecution failed to establish
the presence of all the elements of the offense, and more particularly to adduce proof
that petitioner has, directly or indirectly, a financial or pecuniary interest in the imputed
business contracts or transactions.
Discussion of petitioner's arguments in this regard will not however, be recited anymore
as this was obviated when a new Solicitor General, after seeking and obtaining several
extensions of time to file its Brief in this case at bar, filed on October 7, 1986, a
"Manifestation For Acquittal" (in lieu of the People's Brief). Rollo, 293).
The new Solicitor General's Office after adopting the statement of facts recited in the
consolidated comment of the former Solicitor General's Office moved for the acquittal
of the petitioner, upon acknowledging and concluding that:
Page 16 of 30
xxx xxx xxx
Petitioner has divested his interest with Trigen
Petitioner sought to establish that before he assumed office as mayor on March 3, 1980,
he had already sold his shares with Trigen to his sister Mrs. Rosene Trieste-Tuason.
The sale was made by corresponding indorsements to her stock certificate which was
duly recorded in the stock and transfer book of the corporation.
Respondent Sandiganbayan however doubts the sale because the same was not reported
to the SEC. SEC records, as the prosecution evidence show, do not reflect the sale and
petitioner still appears as the firm's President.
The prosecution's evidence to establish non-divestment of petitioner's interest with
Trigen is weak. Anyway, Trigen has not updated its reports to the SEC since 1976. It
have not even submitted its financial annual report ever since. Absence of the sales
report in the SEC does not mean that the sale did not take place. Reporting the sale is
not a mandatory requirement.
Sales of stocks need not be reported to SEC
In any event, the law only requires submission of annual financial reports, not sales or
disposal of stocks (Section 141, Corporation Code of the Philippines).
Upholding the evidence of petitioner's divestment of his interest with Trigen would
necessarily allow him to act freely in his official capacity in the municipality's dealings
or transactions with Trigen. That in itself is sufficient to acquit him of the crimes
charged. (Rollo, pp. 299-300).
In the matter of the alleged intervention of petitioner, the Office of the Solicitor General
itself subscribes to and on its own volition place on record the following observations:
Prosecution failed to prove charges; evidence discloses absence of bidding and award
The prosecution's lone witness, Treasurer Aniceto Vega, testified that there never was a
public bidding conducted because all the transactions were made by direct purchases
from Trigen.
Q. In other words, in all these transactions there never really was any public
bidding?
A. Yes, Sir. There was no public bidding.
Q. And these purchases were made by direct purchases from the establishment of
Trigen?
A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983)
In the absence of a public bidding and as emphatically declared by the prosecution's
sole witness Vega that all the transactions were on direct purchases from Trigen, how
can one ever imagine that petitioner has awarded the supply and delivery of
construction materials to Trigen as specifically charged in the twelve (12) informations?
The charges are of course baseless and even contradict the evidence of the prosecution
itself.
Even the respondent Court finally found that petitioner did not intervene during the
bidding and award, which of course is a false assumption because of Vega's testimony
that there was no public bidding at all. Respondent Court said:
. . . . In short, accused's intervention may not be present during the bidding and award,
but his liability may also come in when he took part in said transactions such as signing
the vouchers under certifications 1, 2 and 3 thereof, to make it appear that the
transactions were regular and proper. (Resolution dated March 11, 1985 denying
petitioner's motion for reconsideration/new trial, page 7).
No evidence to prove petitioner approved payment
Now, did petitioner intervene by approving payments to Trigen as also charged in the
information? Can there be intervention after payment.
Vega testified that petitioner signed the twelve (12) municipal vouchers (Exhibits A to
L) for the purchase and payment of construction materials. It was sometime after
delivery of the construction materials that he (Vega) signed and paid the twelve (12)
-municipal vouchers (pages 5 to 7), decision of respondent Sandiganbayan dated
November 2, 1984). The prosecution has not presented evidence to show as to when
petitioner signed the twelve (12) municipal vouchers. But it can safely be assumed as a
matter of procedure that petitioner had signed the voucher after Treasurer Vega signed
and paid them., (Rello, pp. 301-303)
xxx xxx xxx
Testimonial and documentary evidence confirms that petitioner signed vouchers after
payment
Additional facts which respondent Court failed to consider and which could have
altered the outcome of the case in the following uncontroverted testimony of Josue
Maravilla:
Page 17 of 30
Q. When these municipal vouchers were prepared by the municipal treasurer, as you say about the other municipal vouchers in this case in reference to payments made
you said, and then presented to Mayor Trieste for his signature, were the purchases in by Trigen to the municipality?
question already paid?
ESCAREAL:
A. They had already been paid for, sir.
Payment made by Trigen?
Q. Previously, prior to the signature of Mayor Trieste?
ATTY. CONSULTA:
A. Yes, sir.
I am sorry, Your Honor, made to Trigen by the municipality?
A.J. ESCAREAL:
A. Official receipts issued by Trigen also indicate that when municipal vouchers
Q. Under what authority were they paid? marked Exhibits E, B, C, D, F, G, H, I were prepared, they had already been delivered
and the amounts indicated therein were already prepared by the municipal treasurer.
A. Under official receipt issued by Trigen.
Q. Did you say already made by the municipal treasurer-the amounts were
Q. Who authorized the payment? already paid by the municipal treasurer?

A. The municipal treasurer who paid the materials. A. Already paid.

ATTY. CONSULTA: Q. Who disbursed the funds evidenced by the Trigen official receipts?

Q. You said they had already been paid for. Do you know of any receipts issued A. The municipal treasurer, then Mr. Vega.
by Trigen to indicate that at the time these municipal vouchers were signed by Mayor
Trieste, the materials had already been delivered and paid by the municipality to Q. Now, do you know why Mr. Vega asked that those municipal vouchers be
Trigen? nevertheless signed in spite of the fact that he knew that the amounts had already been
disbursed and paid by him to Trigen?
xxx xxx xxx

A. He said that the municipal vouchers for record purposes is necessary to be

A. Yes, sir signed by the mayor. (Tsn., Mar. 5, 1984, pp. 19-49).

Q. Now, what exhibits particularly do you know were issued Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were
delivered, petitioner's signature on the vouchers after payment is not, we submit the
by Trigen to indicate that payments were made prior to the signing of the municipal kind of intervention contemplated under Section 3(h) of the Anti-Graft Law.
vouchers by Mayor Trieste?
xxx xxx xxx
A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H.
What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in
xxx xxx xxx the transaction in which one has financial or pecuniary interest in order that liability
may attach. (Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972 of the
Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which are Trigen
Secretary of Justice). The official need not dispose his shares in the corporation as long
receipts showing payments long before the municipal vouchers were prepared, what can
as he does not do anything for the firm in its contract with the office. For the law aims

Page 18 of 30
to prevent the don-tenant use of influence, authority and power (Deliberation on Senate
Bill 293, May 6, 1959, Congressional Record, Vol. 11, page 603).
There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his
influence, power, and authority in having the transactions given to Trigen. He didn't ask
anyone-neither Treasurer Vega nor Secretary Maravilla for that matter, to get the
construction materials from Trigen.
Trigen did not gain any undue advantage in the transaction
Petitioner should not be faulted for Trigen's transaction with the municipality, which by
the way, has been dealing with it even before petitioner had assumed the mayorship on
March 3, 1980. Personal canvasses conducted found that Trigen's offer was the lowest,
most reasonable, and advantageous to the municipality. . . . (Rollo, pp. 307-308;
Emphasis supplied).
It is also an acknowledged fact that there was no complaint for non-delivery,
underdelivery or overpricing regarding any of the transactions.
Considering the correct facts now brought to the attention of this Court by the Solicitor
General and in view of the reassessment made by that Office of the issues and the
evidence and the law involved, the Court takes a similar view that the affirmance of the
decision appealed from cannot be rightfully sustained. The conscientious study and
thorough analysis made by the Office of the Solicitor General in this case truly reflects
its consciousness of its role as the People's Advocate in the administration of justice to
the end that the innocent be equally defended and set free just as it has the task of
having the guilty punished. This Court will do no less and, therefore, accepts the
submitted recommendation that the decision and resolution in question of the
respondent Sandiganbayan be reversed and that as a matter of justice, the herein
petitioner be entitled to a judgment of acquittal.
WHEREFORE, the decision rendered by the Sandiganbayan, dated November 2, 1984,
in Criminal Cases Nos. 6856 to 6867, finding the herein petitioner, Generoso Trieste,
Sr. guilty of the violations of Section 3 paragraph (h) of Republic Act 3019, as
amended, is hereby set aside and reversing the appealed judgment, a new judgment is
now rendered ACQUITTING Generoso Trieste, Sr., of said offenses charged against
him with costs de oficio.
SO ORDERED.
ii. Rule 6.02
Enriquez, Sr. vs. Jimenez, 107 Phil 933
G.R. No. L-12817 April 29, 1960
JULIO D. ENRIQUEZ, SR., representing the law firm of ENRIQUEZ and
ENRIQUEZ, petitioner,
vs.
HON. PEDRO M. GIMENEZ in his capacity as AUDITOR GENERAL OF THE
PHILIPPINES, respondent.
Julio D. Enriquez, Sr. for petitioner.
Assistant Solicitor General Florencio Villamor and Solicitor Jorge R. Coquia for
respondent.
PADILLA, J.:
This is a petition filed under the provisions of Rule 45 of the Rules of Court and section
2 (c) of Commonwealth Act No. 327 for a review of a decision of the Auditor General
dated 24 June 1957.
On 18 June 1955 Republic Act No. 1383 creating the National Waterworks and
Sewerage Authority as a public corporation and vesting in it the ownership, jurisdiction,
supervision and control over all territory embraced by the Metropolitan Water District
as well as all areas served by existing government-owned waterworks and sewerage and
drainage systems within the boundaries of cities, municipalities, and municipal districts
in the Philippines, and those served by the Waterworks and Wells and Drills Section of
the Bureau of Public Works, was passed. On 19 September 1955 the President of the
Philippines promulgated Executive Order No. 127 providing, among others, for the
transfer to the National Waterworks and Sewerage Authority of all the records,
properties, machinery, equipment, appropriations, assets, choses in actions, liabilities,
obligations, notes, bonds and all indebtedness of all government-owned waterworks and
sewerage systems in the provinces, cities, municipalities and municipal districts (51
Off. Gaz. 4415-4417). On 31 March 1956 the municipal council of Bauan, Batangas,
adopted and passed Resolution No. 152 stating "that it is the desire of this municipality
in this present administration not to submit our local Waterworks to the provisions of
the said Republic Act No. 1383." (Annex A.) On 20 April 1956 the municipal mayor
transmitted a copy of Resolution No. 152 to the Provincial Fiscal through the Provincial
Board requesting him to render an opinion on the matter treated therein and to inform
the municipal council whether he would handle and prosecute its case in court should
the council decide to question and test judicially the legality of Republic Act No. 1383
Page 19 of 30
and to prevent the National Waterworks and Sewerage Authority from exercising its
authority over the waterworks system of the municipality, (Annex B). On 2 May 1956
the provincial fiscal rendered an opinion holding that Republic Act No. 1383 is valid
and constitutional and declined to represent the municipality of Bauan in an action to be
brought against the National Waterworks and Sewerage Authority to test the validity
and constitutionality of the Act creating it (Annex C). On 26 May 1956 the municipal
council adopted and passed Resolution No. 201 authorizing the municipal mayor to take
steps to commence an action or proceedings in court to challenge the constitutionality
of Republic Act No. 1383 and to engage the services of a special counsel, and
appropriating the sum of P2,000 to defray the expenses of litigation and attorney's fees
(Annex D). On 2 June 1956 the municipal mayor wrote a letter to the petitioner
engaging his services as counsel for the municipality in its contemplated action against
the National Waterworks and Sewerage Authority (Annex F.) On 27 June 1956 the
Provincial Board of Batangas adopted and passed Resolution No. 1829 approving
Resolution No. 201 of the municipal council of Bauan (Annex E). On 28 June 1956 the
petitioner wrote to the municipal mayor accepting his offer in behalf of the municipality
under the following terms and conditions: that his professional services shall commence
from the filing of the complaint up to and including the appeal, if any, to the appellate
courts; that his professional fee shall be P1,500 and payable as follows: P500 upon the
filing of the complaint, P500 upon the termination of the hearing of the case in the
Court of First Instance, and P500 after judgment shall have become final or, should the
judgment be appealed, after the appeal shall have been submitted for judgment to the
appellate court; and that the municipality shall defray all reasonable and necessary
expenses for the prosecution of the case in the trial and appellate courts including court
and sheriff fees, transportation and subsistence of counsel and witnesses and cost of
transcripts of stenographic notes and other documents (Annex G). On the same date, 28
June 1956, the petitioner filed the necessary complaint in the Court of First Instance of
Batangas (civil No. 542, Annex I). On 9 July 1956 the municipal mayor wrote to the
petitioner agreeing to the terms and conditions set forth in his (the petitioner's) letter of
28 June 1956 (Annex H). On 16 July 1956 the defendant filed its answer to the
complaint (Annex J). On 24 July 1956 the petitioner wrote a letter to the municipal
treasurer requesting reimbursement of the sum of P40 paid by him to the Court as
docket fee and payment of the sum of P500 as initial attorney's fee. Attached to the
letter were the pertinent supporting papers (Annex K). The municipal treasurer
forwarded the petitioner's claim letter and enclosures to the Auditor General through
channels for pre-audit. On 24 June 1957 the Auditor General disallowed in audit the
petitioner's claim for initial attorney's fees in the sum of P500, based upon an opinion
rendered on 10 May 1957 by the Secretary of Justice who held that the Provincial Fiscal
was not disqualified to handle and prosecute in court the case of the municipality of
Bauan and that its municipal council had no authority to engage the services of a special
counsel (Annex L), but offered no objection to the refund to the petitioner of the sum of
P40 paid by him to the Court as docket fee (Annex M). On 15 August 1957 the
petitioner received notice of the decision of the Auditor General and on 11 September
1957 he filed with the Auditor General a notice of appeal from his decision under
section 4, Rule 45, of the Rules of Court Annex N). On 13 September 1957 the
petitioner filed this petition for review in this Court.
The Revised Administrative Code provides:
SEC. 2241. Submission of questions to provincial fiscal. — When the council is
desirous of securing a legal opinion upon any question relative to its own powers or the
constitution or attributes of the municipal government, it shall frame such question in
writing and submit the same to the provincial fiscal for decision.
SEC. 1682. Duty of fiscal as legal adviser of province and provincial subdivisions. —
The provincial fiscal shall be the legal adviser of the provincial government and its
officers, including district health officers, and of the mayor and council of the various
municipalities and municipal districts of the province. As such he shall, when so
requested, submit his opinion in writing upon any legal question submitted to him by
any such officer or body pertinent to the duties thereof.
SEC. 1683. Duty of fiscal to represent provinces and provincial subdivisions in
litigation. — The provincial fiscal shall represent the province and any municipality or
municipal district thereof in any court, except in cases whereof original jurisdiction is
vested in the Supreme Court or in cases where the municipality or municipal district in
question is a party adverse to the provincial government or to some other municipality
or municipal district in the same province. When the interests of a provincial
government and of any political division thereof are opposed, the provincial fiscal shall
act on behalf of the province.
When the provincial fiscal is disqualified to serve any municipality or other political
subdivision of a province, a special attorney may be employed by its council.
Under the foregoing provisions of law, the Provincial Fiscal is the legal adviser of the
mayor and counsel of the various municipalities of a province and it is his duty to
represent the municipality in any court except when he is disqualified by law. When he
is disqualified to represent the municipality, the municipal council may engage the
services of a special attorney. The Provincial Fiscal is disqualified to represent in court
the municipality if and when original jurisdiction of the case involving the municipality
is vested in the Supreme Court; when the municipality is a party adverse to the
provincial government or to some other municipality in the same province;1 and when
in the case involving the municipality, he, or his wife, or child, is pecuniarily involved
as heir, legatee, creditor or otherwise.2 The fact that the Provincial Fiscal in the case at
bar was of the opinion that Republic Act No. 1383 was valid and constitutional, and,
therefore, would not be in a position to prosecute the case of the municipality with
Page 20 of 30
earnestness and vigor, could not justify the act of the municipal council in engaging the
services of a special counsel. Bias or prejudice and animosity or hostility on the part of
a fiscal not based on any of the conditions enumerated in the law and the Rules of Court
do not constitute a legal and valid excuse for inhibition or disqualification.3 And unlike
a practising lawyer who has the right to decline employment,4 a fiscal cannot refuse the
performance of his functions on grounds not provided for by law without violating his
oath of office, where he swore, among others, "that he will well and faithfully discharge
to the best of his ability the duties of the office or position upon which he is about to
enter. . . ."5 Instead of engaging the services of a special attorney, the municipal council
should have requested the Secretary of Justice to appoint an acting provincial fiscal in
place of the provincial fiscal who had declined to handle and prosecute its case in court,
pursuant to section 1679 of the Revised Administrative Code. The petitioner claims that
the municipal council could not do this because the Secretary of Justice, who has
executive supervision over the Government Corporate Counsel, who represented the
National Waterworks and Sewerage Authority in the case filed against it by the
municipality of Bauan (civil No. 542, Annex J) and direct supervision and control over
the Provincial Fiscal, would be placed in an awkward and absurd position of having
control of both sides of the controversy. The petitioner's contention is untenable.
Section 83 of the Revised Administrative Code, as amended by Executive Order No.
94, series of 1947 and further amended by Executive Order No. 392, series of 1950, 46
Off. Gaz., 5913, 5917, provides that the Secretary of Justice shall have executive
supervision over the Government Corporate Counsel and supervision and control over
Provincial Fiscals. In Mondano vs. Silvosa, 97 Phil., 143; 51 Off. Gaz., 2884, 2888, this
Court distinguished supervision from control as follows:
. . . In administrative law supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the latter fail or neglect to
fulfill them the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to alter
or modify or nullify or set aside what a subordinate officer had done in the performance
of his duties and to substitute the judgment of the former for that of the latter. . . .
The fact that the Secretary of Justice had, on several occasions, upheld the validity and
constitutionality of Republic Act No. 1383 does not exempt the municipal council of
Bauan from requesting the Secretary of Justice to detail a provincial fiscal to prosecute
its case.
The services of the petitioner having been engaged by the municipal council and mayor
without authority of law, the Auditor General was correct in disallowing in audit the
petitioner's claim for payment of attorney's fees. The decision under review is affirmed,
without pronouncement as to costs.
iii. Rule 6.03
PCGG vs. Sandiganbayan, 455 SCRA 536, April 12, 2005
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner,
vs. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN,
FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI
NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG
(represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C.
TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO,
MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA,
WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO,
ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION,
ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC.,
FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL
INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL
HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP.,
MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO
REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC.,
SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and
ATTY. ESTELITO P. MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns on
one hand, the efforts of the Bar to upgrade the ethics of lawyers in government service
and on the other, its effect on the right of government to recruit competent counsel to
defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current account
with the Central Bank.[1] It was later found by the Central Bank that GENBANK had
approved various loans to directors, officers, stockholders and related interests totaling
P172.3 million, of which 59% was classified as doubtful and P0.505 million as
uncollectible.[2] As a bailout, the Central Bank extended emergency loans to
GENBANK which reached a total of P310 million.[3] Despite the mega loans,
GENBANK failed to recover from its financial woes. On March 25, 1977, the Central
Bank issued a resolution declaring GENBANK insolvent and unable to resume business
with safety to its depositors, creditors and the general public, and ordering its
liquidation.[4] A public bidding of GENBANKs assets was held from March 26 to 28,
Page 21 of 30
1977, wherein the Lucio Tan group submitted the winning bid.[5] Subsequently, former
Solicitor General Estelito P. Mendoza filed a petition with the then Court of First
Instance praying for the assistance and supervision of the court in GENBANKs
liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the
first acts of President Corazon C. Aquino was to establish the Presidential Commission
on Good Government (PCGG) to recover the alleged ill-gotten wealth of former
President Ferdinand Marcos, his family and his cronies. Pursuant to this mandate, the
PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for reversion,
reconveyance, restitution, accounting and damages against respondents Lucio Tan,
Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui
Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr.,
Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel
Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim,
Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank), Allied
Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings Corp., Foremost
Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp., Himmel
Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc., Manufacturing
Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco
Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp.,
Virgo Holdings & Development Corp., (collectively referred to herein as respondents
Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O.
Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as
Civil Case No. 0005 of the Second Division of the Sandiganbayan.[6] In connection
therewith, the PCGG issued several writs of sequestration on properties allegedly
acquired by the above-named persons by taking advantage of their close relationship
and influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued by
the PCGG.[7] After the filing of the parties comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed as Civil Case
Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their
counsel, former Solicitor General Estelito P. Mendoza, who has then resumed his
private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as
counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in
Civil Case Nos. 0005[8] and 0096-0099.[9] The motions alleged that respondent
Mendoza, as then Solicitor General[10] and counsel to Central Bank, actively
intervened in the liquidation of GENBANK, which was subsequently acquired by
respondents Tan, et al. and became Allied Banking Corporation. Respondent Mendoza
allegedly intervened in the acquisition of GENBANK by respondents Tan, et al. when,
in his capacity as then Solicitor General, he advised the Central Banks officials on the
procedure to bring about GENBANKs liquidation and appeared as counsel for the
Central Bank in connection with its petition for assistance in the liquidation of
GENBANK which he filed with the Court of First Instance (now Regional Trial Court)
of Manila and was docketed as Special Proceeding No. 107812. The motions to
disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule 6.03
prohibits former government lawyers from accepting engagement or employment in
connection with any matter in which he had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution
denying PCGGs motion to disqualify respondent Mendoza in Civil Case No. 0005.[11]
It found that the PCGG failed to prove the existence of an inconsistency between
respondent Mendozas former function as Solicitor General and his present employment
as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a
position adverse to that taken on behalf of the Central Bank during his term as Solicitor
General.[12] It further ruled that respondent Mendozas appearance as counsel for
respondents Tan, et al. was beyond the one-year prohibited period under Section 7(b) of
Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The
said section prohibits a former public official or employee from practicing his
profession in connection with any matter before the office he used to be with within one
year from his resignation, retirement or separation from public office.[13] The PCGG
did not seek any reconsideration of the ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayans
Second Division to the Fifth Division.[15] In its resolution dated July 11, 2001, the
Fifth Division of the Sandiganbayan denied the other PCGGs motion to disqualify
respondent Mendoza.[16] It adopted the resolution of its Second Division dated April
22, 1991, and observed that the arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling
but its motion was denied in its resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11,
2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition
for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure.[18]
The PCGG alleged that the Fifth Division acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed resolutions
contending that: 1) Rule 6.03 of the Code of Professional Responsibility prohibits a
former government lawyer from accepting employment in connection with any matter
in which he intervened; 2) the prohibition in the Rule is not time-bound; 3) that Central
Bank could not waive the objection to respondent Mendozas appearance on behalf of
Page 22 of 30
the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res
judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view, however, of
the import and impact of Rule 6.03 of the Code of Professional Responsibility to the
legal profession and the government, we shall cut our way and forthwith resolve the
substantive issue.
I First, David Dudley Field, the drafter of the highly influential New York Field Code,
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies
to respondent Mendoza. Again, the prohibition states: A lawyer shall not, after leaving
government service, accept engagement or employment in connection with any matter
in which he had intervened while in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of Rule
6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were
pervasive in England and other parts of Europe. The early statements of standards did
not resemble modern codes of conduct. They were not detailed or collected in one
source but surprisingly were comprehensive for their time. The principal thrust of the
standards was directed towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any obligation to the client.
The formulations of the litigation duties were at times intricate, including specific
pleading standards, an obligation to inform the court of falsehoods and a duty to explore
settlement alternatives. Most of the lawyer's other basic duties -- competency, diligence,
loyalty, confidentiality, reasonable fees and service to the poor -- originated in the
litigation context, but ultimately had broader application to all aspects of a lawyer's
practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did
not differ markedly from those in England. The colonies and early states used oaths,
statutes, judicial oversight, and procedural rules to govern attorney behavior. The
difference from England was in the pervasiveness and continuity of such regulation.
The standards set in England varied over time, but the variation in early America was
far greater. The American regulation fluctuated within a single colony and differed
from colony to colony. Many regulations had the effect of setting some standards of
conduct, but the regulation was sporadic, leaving gaps in the substantive standards.
Only three of the traditional core duties can be fairly characterized as pervasive in the
formal, positive law of the colonial and post-revolutionary period: the duties of
litigation fairness, competency and reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in the United
States. By mid-century, American legal reformers were filling the void in two ways.
introduced a new set of uniform standards of conduct for lawyers. This concise
statement of eight statutory duties became law in several states in the second half of the
nineteenth century. At the same time, legal educators, such as David Hoffman and
George Sharswood, and many other lawyers were working to flesh out the broad outline
of a lawyer's duties. These reformers wrote about legal ethics in unprecedented detail
and thus brought a new level of understanding to a lawyer's duties. A number of mid-
nineteenth century laws and statutes, other than the Field Code, governed lawyer
behavior. A few forms of colonial regulations e.g., the do no falsehood oath and the
deceit prohibitions -- persisted in some states. Procedural law continued to directly, or
indirectly, limit an attorney's litigation behavior. The developing law of agency
recognized basic duties of competence, loyalty and safeguarding of client property.
Evidence law started to recognize with less equivocation the attorney-client privilege
and its underlying theory of confidentiality. Thus, all of the core duties, with the likely
exception of service to the poor, had some basis in formal law. Yet, as in the colonial
and early post-revolutionary periods, these standards were isolated and did not provide
a comprehensive statement of a lawyer's duties. The reformers, by contrast, were more
comprehensive in their discussion of a lawyer's duties, and they actually ushered a new
era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards began to
guide lawyers in their practice the bar association code of legal ethics. The bar codes
were detailed ethical standards formulated by lawyers for lawyers. They combined the
two primary sources of ethical guidance from the nineteenth century. Like the academic
discourses, the bar association codes gave detail to the statutory statements of duty and
the oaths of office. Unlike the academic lectures, however, the bar association codes
retained some of the official imprimatur of the statutes and oaths. Over time, the bar
association codes became extremely popular that states adopted them as binding rules
of law. Critical to the development of the new codes was the re-emergence of bar
associations themselves. Local bar associations formed sporadically during the colonial
period, but they disbanded by the early nineteenth century. In the late nineteenth
century, bar associations began to form again, picking up where their colonial
predecessors had left off. Many of the new bar associations, most notably the Alabama
Page 23 of 30
State Bar Association and the American Bar Association, assumed on the task of
drafting substantive standards of conduct for their members.[22]
In 1887, Alabama became the first state with a comprehensive bar association code of
ethics. The 1887 Alabama Code of Ethics was the model for several states codes, and it
was the foundation for the American Bar Association's (ABA) 1908 Canons of Ethics.
[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient
to attain the full measure of public respect to which the legal profession was entitled. In
that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the
ABA Canons of Professional Ethics.[24]
As early as 1924, some ABA members have questioned the form and function of the
canons. Among their concerns was the revolving door or the process by which lawyers
and others temporarily enter government service from private life and then leave it for
large fees in private practice, where they can exploit information, contacts, and
influence garnered in government service.[25] These concerns were classified as
adverse-interest conflicts and congruent-interest conflicts. Adverse-interest conflicts
exist where the matter in which the former government lawyer represents a client in
private practice is substantially related to a matter that the lawyer dealt with while
employed by the government and the interests of the current and former are adverse.
[26] On the other hand, congruent-interest representation conflicts are unique to
government lawyers and apply primarily to former government lawyers.[27] For several
years, the ABA attempted to correct and update the canons through new canons,
individual amendments and interpretative opinions. In 1928, the ABA amended one
canon and added thirteen new canons.[28] To deal with problems peculiar to former
government lawyers, Canon 36 was minted which disqualified them both for adverse-
interest conflicts and congruent-interest representation conflicts.[29] The rationale for
disqualification is rooted in a concern that the government lawyers largely discretionary
actions would be influenced by the temptation to take action on behalf of the
government client that later could be to the advantage of parties who might later
become private practice clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits
of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ should
not, after his retirement, accept employment in connection with any matter he has
investigated or passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and added
Canons 46 and 47 in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the
ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that the ABA
Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis
Powell asked for the creation of a committee to study the adequacy and effectiveness of
the ABA Canons. The committee recommended that the canons needed substantial
revision, in part because the ABA Canons failed to distinguish between the inspirational
and the proscriptive and were thus unsuccessful in enforcement. The legal profession in
the United States likewise observed that Canon 36 of the ABA Canons of Professional
Ethics resulted in unnecessary disqualification of lawyers for negligible participation in
matters during their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code
of Professional Responsibility.[33] The basic ethical principles in the Code of
Professional Responsibility were supplemented by Disciplinary Rules that defined
minimum rules of conduct to which the lawyer must adhere.[34] In the case of Canon 9,
DR 9-101(b)[35] became the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional Responsibility, and, in
August of 1969, the ABA House of Delegates approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the results and
indefinite standards set forth by DR 9-101(b) and the Model Code of Professional
Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of
Professional Responsibility. The Model Rules used the restatement format, where the
conduct standards were set-out in rules, with comments following each rule. The new
format was intended to give better guidance and clarity for enforcement because the
only enforceable standards were the black letter Rules. The Model Rules eliminated the
broad canons altogether and reduced the emphasis on narrative discussion, by placing
comments after the rules and limiting comment discussion to the content of the black
letter rules. The Model Rules made a number of substantive improvements particularly
with regard to conflicts of interests.[37] In particular, the ABA did away with Canon 9,
citing the hopeless dependence of the concept of impropriety on the subjective views of
anxious clients as well as the norms indefinite nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a
proposed Code of Professional Responsibility in 1980 which it submitted to this Court
for approval. The Code was drafted to reflect the local customs, traditions, and practices
of the bar and to conform with new realities. On June 21, 1988, this Court promulgated
Page 24 of 30
the Code of Professional Responsibility.[39] Rule 6.03 of the Code of Professional
Responsibility deals particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in said
service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of
paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive
phrase investigated and passed upon with the word intervened. It is, therefore, properly
applicable to both adverse-interest conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule 6.03. Respondent
Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor
General in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil
Case No. 0005 and Civil Case Nos. 0096-0099 before the Sandiganbayan. Nonetheless,
there remains the issue of whether there exists a congruent-interest conflict sufficient to
disqualify respondent Mendoza from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of matter referred
to in the rule and, second, the metes and bounds of the intervention made by the former
government lawyer on the matter. The American Bar Association in its Formal Opinion
342, defined matter as any discrete, isolatable act as well as identifiable transaction or
conduct involving a particular situation and specific party, and not merely an act of
drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of intervention by
respondent Mendoza while he was the Solicitor General. The PCGG relates the
following acts of respondent Mendoza as constituting the matter where he intervened as
a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth
Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001
denying the motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al.
The PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in
the closure of GENBANK by advising the Central Bank on how to proceed with the
said banks liquidation and even filing the petition for its liquidation with the CFI of
Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by
certain key officials of the Central Bank, namely, then Senior Deputy Governor Amado
R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and General
Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota P.
Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of
Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General (Atty.
Mendoza), who advised them on how to proceed with the liquidation of GENBANK.
The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he
advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that
studies and evaluation had been made since the last examination of the bank as of
August 31, 1976 and it is believed that the bank can not be reorganized or placed in a
condition so that it may be permitted to resume business with safety to its depositors
and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of
the bank and indicate the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan approved by the
Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting
the proceedings which had been taken and praying the assistance of the Court in the
liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent portion of the said minutes
reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of the subject
memorandum of the Director, Department of Commercial and Savings Bank dated
March 29, 1977, together with copies of:
Page 25 of 30
1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the
Monetary Board, dated March 25, 1977, containing a report on the current situation of
Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated
March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the
Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No.
265, as amended by P.D. No. 1007, a repot on the state of insolvency of Genbank,
together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor General for his
use in then CFI-praying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as Solicitor
General involved in the case at bar is advising the Central Bank, on how to proceed
with the said banks liquidation and even filing the petition for its liquidation with the
CFI of Manila. In fine, the Court should resolve whether his act of advising the Central
Bank on the legal procedure to liquidate GENBANK is included within the concept of
matter under Rule 6.03. The procedure of liquidation is given in black and white in
Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the
appropriate supervising or examining department or his examiners or agents into the
condition of any bank or non-bank financial intermediary performing quasi-banking
functions, it shall be disclosed that the condition of the same is one of insolvency, or
that its continuance in business would involve probable loss to its depositors or
creditors, it shall be the duty of the department head concerned forthwith, in writing, to
inform the Monetary Board of the facts, and the Board may, upon finding the
statements of the department head to be true, forbid the institution to do business in the
Philippines and shall designate an official of the Central Bank or a person of recognized
competence in banking or finance, as receiver to immediately take charge of its assets
and liabilities, as expeditiously as possible collect and gather all the assets and
administer the same for the benefit of its creditors, exercising all the powers necessary
for these purposes including, but not limited to, bringing suits and foreclosing
mortgages in the name of the bank or non-bank financial intermediary performing
quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said period that the bank
or non-bank financial intermediary performing quasi-banking functions is insolvent or
cannot resume business with safety to its depositors, creditors and the general public, it
shall, if the public interest requires, order its liquidation, indicate the manner of its
liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor
General, file a petition in the Court of First Instance reciting the proceedings which
have been taken and praying the assistance of the court in the liquidation of such
institution. The court shall have jurisdiction in the same proceedings to adjudicate
disputed claims against the bank or non-bank financial intermediary performing quasi-
banking functions and enforce individual liabilities of the stockholders and do all that is
necessary to preserve the assets of such institution and to implement the liquidation
plan approved by the Monetary Board. The Monetary Board shall designate an official
of the Central Bank, or a person of recognized competence in banking or finance, as
liquidator who shall take over the functions of the receiver previously appointed by the
Monetary Board under this Section. The liquidator shall, with all convenient speed,
convert the assets of the banking institution or non-bank financial intermediary
performing quasi-banking functions to money or sell, assign or otherwise dispose of the
same to creditors and other parties for the purpose of paying the debts of such
institution and he may, in the name of the bank or non-bank financial intermediary
performing quasi-banking functions, institute such actions as may be necessary in the
appropriate court to collect and recover accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the Monetary
Board under this Section and the second paragraph of Section 34 of this Act shall be
final and executory, and can be set aside by the court only if there is convincing proof
that the action is plainly arbitrary and made in bad faith. No restraining order or
injunction shall be issued by the court enjoining the Central Bank from implementing
its actions under this Section and the second paragraph of Section 34 of this Act, unless
there is convincing proof that the action of the Monetary Board is plainly arbitrary and
made in bad faith and the petitioner or plaintiff files with the clerk or judge of the court
in which the action is pending a bond executed in favor of the Central Bank, in an
amount to be fixed by the court. The restraining order or injunction shall be refused or,
if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall be
in the form of cash or Central Bank cashier(s) check, in an amount twice the amount of
the bond of the petitioner or plaintiff conditioned that it will pay the damages which the
petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The
provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not
inconsistent with the provisions of this Section shall govern the issuance and
dissolution of the restraining order or injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank or non-
bank financial intermediary performing quasi-banking functions to pay its liabilities as
Page 26 of 30
they fall due in the usual and ordinary course of business. Provided, however, That this
shall not include the inability to pay of an otherwise non-insolvent bank or non-bank
financial intermediary performing quasi-banking functions caused by extraordinary
demands induced by financial panic commonly evidenced by a run on the bank or non-
bank financial intermediary performing quasi-banking functions in the banking or
financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment of
a receiver under this Section shall be vested exclusively with the Monetary Board, the
provision of any law, general or special, to the contrary notwithstanding. (As amended
by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate
GENBANK is not the matter contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the
drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law are acts which do not fall within the scope of
the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No.
342. Be that as it may, the said act of respondent Mendoza which is the matter involved
in Sp. Proc. No. 107812 is entirely different from the matter involved in Civil Case No.
0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza
had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is
also given that he did not participate in the sale of GENBANK to Allied Bank. The
matter where he got himself involved was in informing Central Bank on the procedure
provided by law to liquidate GENBANK thru the courts and in filing the necessary
petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject matter
of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different from
the subject matter in Civil Case No. 0096. Civil Case No. 0096 involves the
sequestration of the stocks owned by respondents Tan, et al., in Allied Bank on the
alleged ground that they are ill-gotten. The case does not involve the liquidation of
GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the
shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the
issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by
the Central Bank due, among others, to the alleged banking malpractices of its owners
and officers. In other words, the legality of the liquidation of GENBANK is not an issue
in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the
dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code
of Professional Responsibility cannot apply to respondent Mendoza because his alleged
intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a
matter different from the matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the intervention contemplated by
Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to
occur, fall, or come in between points of time or events . . . 3: to come in or between by
way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two
things (Paris, where the same city lay on both sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the
interests of others.[42]
There are, therefore, two possible interpretations of the word intervene. Under the first
interpretation, intervene includes participation in a proceeding even if the intervention
is irrelevant or has no effect or little influence.[43] Under the second interpretation,
intervene only includes an act of a person who has the power to influence the subject
proceedings.[44] We hold that this second meaning is more appropriate to give to the
word intervention under Rule 6.03 of the Code of Professional Responsibility in light of
its history. The evils sought to be remedied by the Rule do not exist where the
government lawyer does an act which can be considered as innocuous such as x x x
drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36
provided that a former government lawyer should not, after his retirement, accept
employment in connection with any matter which he has investigated or passed upon
while in such office or employ. As aforediscussed, the broad sweep of the phrase which
he has investigated or passed upon resulted in unjust disqualification of former
government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the
prohibition extended only to a matter in which the lawyer, while in the government
service, had substantial responsibility. The 1983 Model Rules further constricted the
reach of the rule. MR 1.11(a) provides that a lawyer shall not represent a private client
in connection with a matter in which the lawyer participated personally and
substantially as a public officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No.
107812 is significant and substantial. We disagree. For one, the petition in the special
proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza
as the then sitting Solicitor General. For another, the record is arid as to the actual
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participation of respondent Mendoza in the subsequent proceedings. Indeed, the case
was in slumberville for a long number of years. None of the parties pushed for its early
termination. Moreover, we note that the petition filed merely seeks the assistance of the
court in the liquidation of GENBANK. The principal role of the court in this type of
proceedings is to assist the Central Bank in determining claims of creditors against the
GENBANK. The role of the court is not strictly as a court of justice but as an agent to
assist the Central Bank in determining the claims of creditors. In such a proceeding, the
participation of the Office of the Solicitor General is not that of the usual court litigator
protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially by
the ABA which have not been without difficulties. To date, the legal profession in the
United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to assure that its
interpretation and application to the case at bar will achieve its end without necessarily
prejudicing other values of equal importance. Thus, the rule was not interpreted to
cause a chilling effect on government recruitment of able legal talent. At present, it is
already difficult for government to match compensation offered by the private sector
and it is unlikely that government will be able to reverse that situation. The observation
is not inaccurate that the only card that the government may play to recruit lawyers is
have them defer present income in return for the experience and contacts that can later
be exchanged for higher income in private practice.[45] Rightly, Judge Kaufman
warned that the sacrifice of entering government service would be too great for most
men to endure should ethical rules prevent them from engaging in the practice of a
technical specialty which they devoted years in acquiring and cause the firm with which
they become associated to be disqualified.[46] Indeed, to make government service
more difficult to exit can only make it less appealing to enter.[47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic
to harass opposing counsel as well as deprive his client of competent legal
representation. The danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has
noted the tactical use of motions to disqualify counsel in order to delay proceedings,
deprive the opposing party of counsel of its choice, and harass and embarrass the
opponent, and observed that the tactic was so prevalent in large civil cases in recent
years as to prompt frequent judicial and academic commentary.[48] Even the United
States Supreme Court found no quarrel with the Court of Appeals description of
disqualification motions as a dangerous game.[49] In the case at bar, the new attempt to
disqualify respondent Mendoza is difficult to divine. The disqualification of respondent
Mendoza has long been a dead issue. It was resuscitated after the lapse of many years
and only after PCGG has lost many legal incidents in the hands of respondent Mendoza.
For a fact, the recycled motion for disqualification in the case at bar was filed more than
four years after the filing of the petitions for certiorari, prohibition and injunction with
the Supreme Court which were subsequently remanded to the Sandiganbayan and
docketed as Civil Case Nos. 0096-0099.[50] At the very least, the circumstances under
which the motion to disqualify in the case at bar were refiled put petitioners motive as
highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to
the client which will be caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the law firm of choice, but
probably an individual lawyer in whom the client has confidence.[51] The client with a
disqualified lawyer must start again often without the benefit of the work done by the
latter.[52] The effects of this prejudice to the right to choose an effective counsel cannot
be overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated reading of the
rule on the official independence of lawyers in the government service. According to
Prof. Morgan: An individual who has the security of knowing he or she can find private
employment upon leaving the government is free to work vigorously, challenge official
positions when he or she believes them to be in error, and resist illegal demands by
superiors. An employee who lacks this assurance of private employment does not enjoy
such freedom.[53] He adds: Any system that affects the right to take a new job affects
the ability to quit the old job and any limit on the ability to quit inhibits official
independence.[54] The case at bar involves the position of Solicitor General, the office
once occupied by respondent Mendoza. It cannot be overly stressed that the position of
Solicitor General should be endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend acquittal of the innocent;
it is this independence that gives him the right to refuse to defend officials who violate
the trust of their office. Any undue dimunition of the independence of the Solicitor
General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former government lawyer
of the freedom to exercise his profession. Given the current state of our law, the
disqualification of a former government lawyer may extend to all members of his law
firm.[55] Former government lawyers stand in danger of becoming the lepers of the
legal profession.
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It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the
Code of Professional Responsibility is the possible appearance of impropriety and loss
of public confidence in government. But as well observed, the accuracy of gauging
public perceptions is a highly speculative exercise at best[56] which can lead to
untoward results.[57] No less than Judge Kaufman doubts that the lessening of
restrictions as to former government attorneys will have any detrimental effect on that
free flow of information between the government-client and its attorneys which the
canons seek to protect.[58] Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional Conduct[59] and some courts
have abandoned per se disqualification based on Canons 4 and 9 when an actual conflict
of interest exists, and demand an evaluation of the interests of the defendant,
government, the witnesses in the case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who switch sides. It is claimed that switching sides carries
the danger that former government employee may compromise confidential official
information in the process. But this concern does not cast a shadow in the case at bar.
As afore-discussed, the act of respondent Mendoza in informing the Central Bank on
the procedure how to liquidate GENBANK is a different matter from the subject matter
of Civil Case No. 0005 which is about the sequestration of the shares of respondents
Tan, et al., in Allied Bank. Consequently, the danger that confidential official
information might be divulged is nil, if not inexistent. To be sure, there are no
inconsistent sides to be bothered about in the case at bar. For there is no question that in
lawyering for respondents Tan, et al., respondent Mendoza is not working against the
interest of Central Bank. On the contrary, he is indirectly defending the validity of the
action of Central Bank in liquidating GENBANK and selling it later to Allied Bank.
Their interests coincide instead of colliding. It is for this reason that Central Bank
offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in
defense of respondents Tan, et al. There is no switching of sides for no two sides are
involved.
It is also urged that the Court should consider that Rule 6.03 is intended to avoid
conflict of loyalties, i.e., that a government employee might be subject to a conflict of
loyalties while still in government service.[61] The example given by the proponents of
this argument is that a lawyer who plans to work for the company that he or she is
currently charged with prosecuting might be tempted to prosecute less vigorously.[62]
In the cautionary words of the Association of the Bar Committee in 1960: The greatest
public risks arising from post employment conduct may well occur during the period of
employment through the dampening of aggressive administration of government
policies.[63] Prof. Morgan, however, considers this concern as probably excessive.[64]
He opines x x x it is hard to imagine that a private firm would feel secure hiding
someone who had just been disloyal to his or her last client the government. Interviews
with lawyers consistently confirm that law firms want the best government lawyers the
ones who were hardest to beat not the least qualified or least vigorous advocates.[65]
But again, this particular concern is a non factor in the case at bar. There is no charge
against respondent Mendoza that he advised Central Bank on how to liquidate
GENBANK with an eye in later defending respondents Tan, et al. of Allied Bank.
Indeed, he continues defending both the interests of Central Bank and respondents Tan,
et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as the
excessive influence of former officials or their clout.[66] Prof. Morgan again warns
against extending this concern too far. He explains the rationale for his warning, viz:
Much of what appears to be an employees influence may actually be the power or
authority of his or her position, power that evaporates quickly upon departure from
government x x x.[67] More, he contends that the concern can be demeaning to those
sitting in government. To quote him further: x x x The idea that, present officials make
significant decisions based on friendship rather than on the merit says more about the
present officials than about their former co-worker friends. It implies a lack of will or
talent, or both, in federal officials that does not seem justified or intended, and it
ignores the possibility that the officials will tend to disfavor their friends in order to
avoid even the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent
interest prong of Rule 6.03 of the Code of Professional Responsibility should be subject
to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply
retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by
the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not
yet adopted by the IBP and approved by this Court, and (2) the bid to disqualify
respondent Mendoza was made after the lapse of time whose length cannot, by any
standard, qualify as reasonable. At bottom, the point they make relates to the unfairness
of the rule if applied without any prescriptive period and retroactively, at that. Their
concern is legitimate and deserves to be initially addressed by the IBP and our
Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-
0099 is denied.
No cost.
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SO ORDERED.

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