ADM. CASE No.
3319 June 8, 2000 However, complainant again discovered that the illicit relationship
LESLIE UI, Complainant,
vs.
ATTY. IRIS BONIFACIO, Respondent.
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against Atty.
Iris Bonifacio for allegedly carrying on an immoral relationship with
Carlos L. Ui, husband of complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the
Our Lady of Lourdes Church in Quezon City 1 and as a result of their
marital union, they had four (4) children, namely, Leilani, Lianni,
Lindsay and Carl Cavin, all surnamed Ui. Sometime in December
1987, however, complainant found out that her husband. Carlos Ui,
was carrying on an illicit relationship with respondent Atty. Iris
Bonifacio with whom he begot a daughter sometime in 1986, and that
they had been living together at No. 527 San Carlos Street, Ayala
Alabang Village in Muntinlupa City. Respondent who is a graduate of
the College of Law of the University of the Philippines was admitted
to the Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the
respondent. Complainant then visited respondent at her office in the
later part of June 1988 and introduced herself as the legal wife of
Carlos Ui. Whereupon, respondent admitted to her that she has a child
with Carlos Ui and alleged, however; that everything was over
between her and Carlos Ui. Complainant believed the representations
of respondent and thought things would turn out well from then on and
that the illicit relationship between her husband and respondent would
come to an end.
between her husband and respondent continued, and that sometime in
December 1988, respondent and her husband, Carlos Ui, had a second
child. Complainant then met again with respondent sometime in March
1989 and pleaded with respondent to discontinue her illicit relationship
with Carlos Ui but to no avail. The illicit relationship persisted and
complainant even came to know later on that respondent had been
employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was
then filed on August 11, 1989 by the complainant against respondent
Atty. Iris Bonifacio before the Commission on Bar Discipline of the
Integrated Bar of the Philippines (hereinafter, Commission) on the
ground of immorality, more particularly, for carrying on an illicit
relationship with the complainant's husband, Carlos Ui. In her
Answer, 2 respondent averred that she met Carlos Ui sometime in 1983
and had known him all along to be a bachelor, with the knowledge,
however, that Carlos Ui had children by a Chinese woman in Amoy,
China, from whom he had long been estranged. She stated that during
one of their trips abroad, Carlos Ui formalized his intention to marry
her and they in fact got married in Hawaii, USA in 1985 3. Upon their
return to Manila, respondent did not live with Carlos Ui. The latter
continued to live with his children in their Greenhills residence
because respondent and Carlos Ui wanted to let the children gradually
to know and accept the fact of his second marriage before they would
live together. 4
In 1986, respondent left the country and stayed in Honolulu, Hawaii
and she would only return occasionally to the Philippines to update her
law practice and renew legal ties. During one of her trips to Manila
sometime in June 1988, she was confronted by a woman who insisted
that she was the lawful wife of Carlos Ui. Hurt and desolate upon her
discovery of the true civil status of Carlos Ui, respondent then left for
Honolulu, Hawaii sometime in July 1988 and returned only in March
1989 with her two (2) children. On March 20, 1989, a few days after
she reported to work with the law firm 5 she was connected with, the
woman who represented herself to be the wife of Carlos Ui again came
to her office, demanding to know if Carlos Ui has been communicating
with her.
It is respondent's contention that her relationship with Carlos Ui is not
illicit because they were married abroad and that after June 1988,
when respondent discovered Carlos Ui's true civil status, she cut off all
her ties with him. Respondent averred that Carlos Ui never lived with
her in Alabang, and that he resided at 26 Potsdam Street, Greenhills,
San Juan, Metro Manila. It was respondent who lived in Alabang in a
house which belonged to her mother, Rosalinda L. Bonifacio; and that
the said house was built exclusively from her parents' funds. 6 By way
of counterclaim, respondent sought moral damages in the amount of
Ten Million Pesos (Php10,000,000.00) against complainant for having
filed the present allegedly malicious and groundless disbarment case
against respondent.
In her Reply 7 dated April 6, 1990, complainant states, among others,
that respondent knew perfectly well that Carlos Ui was married to
complainant and had children with her even at the start of her
relationship with Carlos Ui, and that the reason respondent went
abroad was to give birth to her two (2) children with Carlos Ui.
During the pendency of the proceedings before the Integrated Bar,
complainant also charged her husband, Carlos Ui, and respondent with
the crime of Concubinage before the Office of the Provincial Fiscal of
Rizal, docketed as I.S. No. 89-5247, but the same was dismissed for
insufficiency of evidence to establish probable cause for the offense
charged. The resolution dismissing the criminal complaint against
respondent reads:
Complainant's evidence had prima facie established the existence of
the "illicit relationship" between the respondents allegedly discovered
by the complainant in December 1987. The same evidence however
show that respondent Carlos Ui was still living with complainant up to
the latter part of 1988 and/or the early part of 1989.
It would therefore be logical and safe to state that the "relationship" of
respondents started and was discovered by complainant sometime in
1987 when she and respondent Carlos were still living at No. 26
Potsdam Street, Northeast Greenhills, San Juan, Metro Manila and
they, admittedly, continued to live together at their conjugal home up
to early (sic) part of 1989 or later 1988, when respondent Carlos left
the same.
From the above, it would not be amiss to conclude that altho (sic) the
relationship, illicit as complainant puts it, had been prima
facie established by complainant's evidence, this same evidence had
failed to even prima facie establish the "fact of respondent's
cohabitation in the concept of husband and wife at the 527 San Carlos
St., Ayala Alabang house, proof of which is necessary and
indispensable to at least create probable cause for the offense charged.
The statement alone of complainant, worse, a statement only of a
conclusion respecting the fact of cohabitation does not make the
complainant's evidence thereto any better/stronger (U.S. vs. Casipong
and Mongoy, 20 Phil. 178).
It is worth stating that the evidence submitted by respondents in
support of their respective positions on the matter support and bolster
the foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable
cause for the offense charged.
RESPECTFULLY SUBMITTED. 8
Complainant appealed the said Resolution of the Provincial Fiscal of
Rizal to the Secretary of Justice, but the same was dismissed 9 on the
ground of insufficiency of evidence to prove her allegation that
respondent and Carlos Ui lived together as husband and wife at 527
San Carlos Street, Ayala Alabang, Muntinlupa, Metro Manila.
In the proceedings before the IBP Commission on Bar Discipline,
complainant filed a Motion to Cite Respondent in Contempt of the
Commission 10 wherein she charged respondent with making false
allegations in her Answer and for submitting a supporting document
which was altered and intercalated. She alleged that in the Answer of
respondent filed before the Integrated Bar, respondent averred, among
others, that she was married to Carlos Ui on October 22, 1985 and
attached a Certificate of Marriage to substantiate her averment.
However, the Certificate of Marriage 11 duly certified by the State
Registrar as a true copy of the record on file in the Hawaii State
Department of Health, and duly authenticated by the Philippine
Consulate General in Honolulu, Hawaii, USA revealed that the date of
marriage between Carlos Ui and respondent Atty. Iris Bonifacio was
October 22, 1987, and not October 22, 1985 as claimed by respondent
in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said
IBP that the birth of her first child by Carlos Ui was within the
wedlock. 12 It is the contention of complainant that such act constitutes
a violation of Articles 183 13 and 184 14 of the Revised Penal Code,
and also contempt of the Commission; and that the act of respondent in
making false allegations in her Answer and submitting an
altered/intercalated document are indicative of her moral perversity
and lack of integrity which make her unworthy to be a member of the
Philippine Bar.
In her Opposition (To Motion To Cite Respondent in
Contempt), 15 respondent averred that she did not have the original
copy of the marriage certificate because the same was in the
possession of Carlos Ui, and that she annexed such copy because she
relied in good faith on what appeared on the copy of the marriage
certificate in her possession.
Respondent filed her Memorandum 16 on February 22, 1995 and raised
the lone issue of whether or not she has conducted herself in an
immoral manner for which she deserves to be barred from the practice
of law. Respondent averred that the complaint should be dismissed on
two (2) grounds, namely:
(i) Respondent conducted herself in a manner consistent with the
requirement of good moral character for the practice of the legal
profession; and
(ii) Complainant failed to prove her allegation that respondent
conducted herself in an immoral manner.
In her defense, respondent contends, among others, that it was she who
was the victim in this case and not Leslie Ui because she did not know
that Carlos Ui was already married, and that upon learning of this fact,
respondent immediately cut-off all her ties with Carlos Ui. She stated
that there was no reason for her to doubt at that time that the civil
status of Carlos Ui was that of a bachelor because he spent so much
time with her, and he was so open in his courtship. 18
On the issue of the falsified marriage certificate, respondent alleged
that it was highly incredible for her to have knowingly attached such
marriage certificate to her Answer had she known that the same was
altered. Respondent reiterated that there was no compelling reason for
her to make it appear that her marriage to Carlos Ui took place either
in 1985 or 1987, because the fact remains that respondent and Carlos
Ui got married before complainant confronted respondent and
informed the latter of her earlier marriage to Carlos Ui in June 1988.
Further, respondent stated that it was Carlos Ui who testified and
admitted that he was the person responsible for changing the date of
the marriage certificate from 1987 to 1985, and complainant did not
present evidence to rebut the testimony of Carlos Ui on this matter.
Respondent posits that complainant's evidence, consisting of the
pictures of respondent with a child, pictures of respondent with Carlos
Ui, a picture of a garage with cars, a picture of a light colored car with
Plate No. PNS 313, a picture of the same car, and portion of the house
and ground, and another picture of the same car bearing Plate No. PNS
313 and a picture of the house and the garage, 19 does not prove that
she acted in an immoral manner. They have no evidentiary value
according to her. The pictures were taken by a photographer from a
private security agency and who was not presented during the
hearings. Further, the respondent presented the Resolution of the
Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing the
complaint filed by Leslie Ui against respondent for lack of evidence to
establish probable cause for the offense charged 20 and the dismissal of
the appeal by the Department of
Justice 21 to bolster her argument that she was not guilty of any
immoral or illegal act because of her relationship with Carlos Ui. In
fine, respondent claims that she entered the relationship with Carlos Ui
in good faith and that her conduct cannot be considered as willful,
flagrant, or shameless, nor can it suggest moral indifference. She fell
in love with Carlos Ui whom she believed to be single, and, that upon
her discovery of his true civil status, she parted ways with him.
In the Memorandum 22 filed on March 20, 1995 by complainant Leslie
Ui, she prayed for the disbarment of Atty. Iris Bonifacio and reiterated
that respondent committed immorality by having intimate relations
with a married man which resulted in the birth of two (2) children.
Complainant testified that respondent's mother, Mrs. Linda Bonifacio,
personally knew complainant and her husband since the late 1970s
because they were clients of the bank where Mrs. Bonifacio was the
Branch Manager. 23 It was thus highly improbable that respondent,
who was living with her parents as of 1986, would not have been
informed by her own mother that Carlos Ui was a married man.
Complainant likewise averred that respondent committed disrespect
towards the Commission for submitting a photocopy of a document
containing an intercalated date.
In her Reply to Complainant's Memorandum 24, respondent stated that
complainant miserably failed to show sufficient proof to warrant her
disbarment. Respondent insists that contrary to the allegations of
complainant, there is no showing that respondent had knowledge of
the fact of marriage of Carlos Ui to complainant. The allegation that
her mother knew Carlos Ui to be a married man does not prove that
such information was made known to respondent.
Hearing on the case ensued, after which the Commission on Bar
Discipline submitted its Report and Recommendation, finding that:
In the case at bar, it is alleged that at the time respondent was courted
by Carlos Ui, the latter represented himself to be single. The
Commission does not find said claim too difficult to believe in the
light of contemporary human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not hard to
fathom. By their very nature, single women prefer single men.
The records will show that when respondent became aware the (sic)
true civil status of Carlos Ui, she left for the United States (in July of
1988). She broke off all contacts with him. When she returned to the
Philippines in March of 1989, she lived with her brother, Atty.
Teodoro Bonifacio, Jr. Carlos Ui and respondent only talked to each
other because of the children whom he was allowed to visit. At no time
did they live together.
Under the foregoing circumstances, the Commission fails to find any
act on the part of respondent that can be considered as unprincipled or
disgraceful as to be reprehensible to a high degree. To be sure, she was
more of a victim that (sic) anything else and should deserve
compassion rather than condemnation. Without cavil, this sad episode
destroyed her chance of having a normal and happy family life, a
dream cherished by every single girl.
xxx xxx xxx
Thereafter, the Board of Governors of the Integrated Bar of the
Philippines issued a Notice of Resolution dated December 13, 1997,
the dispositive portion of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
and APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein made
part of this Resolution/Decision as Annex "A", and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, the complaint for Gross Immorality against
Respondent is DISMISSED for lack of merit. Atty. Iris Bonifacio is
REPRIMANDED for knowingly and willfully attaching to her Answer
a falsified Certificate of Marriage with a stern warning that a repetition
of the same will merit a more severe penalty.
We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the
right to enjoy the practice of the legal profession simply by passing the
bar examinations. It is a privilege that can be revoked, subject to the
mandate of due process, once a lawyer violates his oath and the
dictates of legal ethics. The requisites for admission to the practice of
law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral turpitude,
are filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations. 25 (Emphasis supplied)
Clear from the foregoing is that one of the conditions prior to
admission to the bar is that an applicant must possess good moral
character. 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. It has been held -
If good moral character is a sine qua non for admission to the bar, then
the continued possession of good moral character is also a requisite for
retaining membership in the legal profession. Membership in the bar
may be terminated when a lawyer ceases to have good moral character.
(Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by reason
of his conviction of a crime involving moral turpitude". A member of
the bar should have moral integrity in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as
to what is "grossly immoral conduct" or to specify the moral
delinquency and obliquity which render a lawyer unworthy of
continuing as a member of the bar. The rule implies that what appears
to be unconventional behavior to the straight-laced may not be the
immoral conduct that warrants disbarment.
Immoral conduct has been defined as "that conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the
opinion of the good and respectable members of the community." (7
C.J.S. 959). 26
In the case at bar, it is the claim of respondent Atty. Bonifacio that
when she met Carlos Ui, she knew and believed him to be single.
Respondent fell in love with him and they got married and as a result
of such marriage, she gave birth to two (2) children. Upon her
knowledge of the true civil status of Carlos Ui, she left him.
Simple as the facts of the case may sound, the effects of the actuations
of respondent are not only far from simple, they will have a rippling
effect on how the standard norms of our legal practitioners should be
defined. Perhaps morality in our liberal society today is a far cry from
what it used to be before. This permissiveness notwithstanding,
lawyers, as keepers of public faith, are burdened with a higher degree
of social responsibility and thus must handle their personal affairs with
greater caution. The facts of this case lead us to believe that perhaps
respondent would not have found herself in such a compromising
situation had she exercised prudence and been more vigilant in finding
out more about Carlos Ui's personal background prior to her intimate
involvement with him.
Surely, circumstances existed which should have at least aroused
respondent's suspicion that something was amiss in her relationship
with Carlos Ui, and moved her to ask probing questions. For instance,
respondent admitted that she knew that Carlos Ui had children with a
woman from Amoy, China, yet it appeared that she never exerted the
slightest effort to find out if Carlos Ui and this woman were indeed
unmarried. Also, despite their marriage in 1987, Carlos Ui never lived
with respondent and their first child, a circumstance that is simply
incomprehensible considering respondent's allegation that Carlos Ui Furthermore, any prudent lawyer would verify the information
was very open in courting her. contained in an attachment to her pleading, especially so when she has
personal knowledge of the facts and circumstances contained therein.
All these taken together leads to the inescapable conclusion that
In attaching such Marriage Certificate with an intercalated date, the
respondent was imprudent in managing her personal affairs. However,
defense of good faith of respondent on that point cannot stand.
the fact remains that her relationship with Carlos Ui, clothed as it was
with what respondent believed was a valid marriage, cannot be It is the bounden duty of lawyers to adhere unwaveringly to the highest
considered immoral. For immorality connotes conduct that shows standards of morality. The legal profession exacts from its members
indifference to the moral norms of society and the opinion of good and nothing less. Lawyers are called upon to safeguard the integrity of the
respectable members of the community. 27 Moreover, for such conduct Bar, free from misdeeds and acts constitutive of malpractice. Their
to warrant disciplinary action, the same must be "grossly immoral," exalted positions as officers of the court demand no less than the
that is, it must be so corrupt and false as to constitute a criminal act or highest degree of morality.
so unprincipled as to be reprehensible to a high degree. 28
WHEREFORE, the complaint for disbarment against respondent Atty.
We have held that "a member of the Bar and officer of the court is not Iris L. Bonifacio, for alleged immorality, is hereby DISMISSED.
only required to refrain from adulterous relationships . . . but must also
However, respondent is hereby REPRIMANDED for attaching to her
so behave himself as to avoid scandalizing the public by creating the
Answer a photocopy of her Marriage Certificate, with an altered or
belief that he is flouting those moral standards." 29 Respondent's act of
intercalated date thereof, with a STERN WARNING that a more
immediately distancing herself from Carlos Ui upon discovering his
severe sanction will be imposed on her for any repetition of the same
true civil status belies just that alleged moral indifference and proves
or similar offense in the future.
that she had no intention of flaunting the law and the high moral
standard of the legal profession. Complainant's bare assertions to the SO ORDERED.
contrary deserve no credit. After all, the burden of proof rests upon the
complainant, and the Court will exercise its disciplinary powers only if Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
she establishes her case by clear, convincing and satisfactory
evidence. 30 This, herein complainant miserably failed to do.
On the matter of the falsified Certificate of Marriage attached by
respondent to her Answer, we find improbable to believe the averment
of respondent that she merely relied on the photocopy of the Marriage
Certificate which was provided her by Carlos Ui. For an event as
significant as a marriage ceremony, any normal bride would verily
recall the date and year of her marriage. It is difficult to fathom how a
bride, especially a lawyer as in the case at bar, can forget the year
when she got married. Simply stated, it is contrary to human
experience and highly improbable.

THIRD DIVISION
[A.C. NO. 6057 : June 27, 2006]
PETER T. DONTON, Complainant, v. ATTY. EMMANUEL O.
TANSINGCO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O.
Tansingco ("respondent") for serious misconduct and deliberate
violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of
Professional Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant")
stated that he filed a criminal complaint for estafa thru falsification of
a public document4 against Duane O. Stier ("Stier"), Emelyn A.
Maggay ("Maggay") and respondent, as the notary public who
notarized the Occupancy Agreement.
The disbarment complaint arose when respondent filed a counter-
charge for perjury5 against complainant. Respondent, in his affidavit-
complaint, stated that:
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was
prepared and notarized by me under the following circumstances:
A. Mr. Duane O. Stier is the owner and long-time resident of a real
property located at No. 33 Don Jose Street, Bgy. San Roque, Murphy,
Cubao, Quezon City.
B. Sometime in September 1995, Mr. Stier - a U.S. citizen and
thereby disqualified to own real property in his name - agreed that
the property be transferred in the name of Mr. Donton, a Filipino.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare
several documents that would guarantee recognition of him being the
actual owner of the property despite the transfer of title in the name of
Mr. Donton.
D. For this purpose, I prepared, among others, the OCCUPANCY
AGREEMENT, recognizing Mr. Stier's free and undisturbed use of the
property for his residence and business operations. The OCCUPANCY
AGREEMENT was tied up with a loan which Mr. Stier had extended
to Mr. Donton.6
Complainant averred that respondent's act of preparing the Occupancy
Agreement, despite knowledge that Stier, being a foreign national, is
disqualified to own real property in his name, constitutes serious
misconduct and is a deliberate violation of the Code. Complainant
prayed that respondent be disbarred for advising Stier to do something
in violation of law and assisting Stier in carrying out a dishonest
scheme.
In his Comment dated 19 August 2003, respondent claimed that
complainant filed the disbarment case against him upon the instigation
of complainant's counsel, Atty. Bonifacio A. Alentajan,7 because
respondent refused to act as complainant's witness in the criminal case
against Stier and Maggay. Respondent admitted that he "prepared and
notarized" the Occupancy Agreement and asserted its genuineness and
due execution.
In a Resolution dated 1 October 2003, the Court referred the matter to
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBP's Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner
Milagros V. San Juan ("Commissioner San Juan") of the IBP
Commission on Bar Discipline found respondent liable for taking part
in a "scheme to circumvent the constitutional prohibition against
foreign ownership of land in the Philippines." Commissioner San Juan
recommended respondent's suspension from the practice of law for
two years and the cancellation of his commission as Notary Public.
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board
of Governors adopted, with modification, the Report and
recommended respondent's suspension from the practice of law for six
months.
On 28 June 2004, the IBP Board of Governors forwarded the Report to
the Court as provided under Section 12(b), Rule 139-B8 of the Rules of
Court.
On 28 July 2004, respondent filed a motion for reconsideration before
the IBP. Respondent stated that he was already 76 years old and would
already retire by 2005 after the termination of his pending cases. He
also said that his practice of law is his only means of support for his
family and his six minor children.
In a Resolution dated 7 October 2004, the IBP denied the motion for
reconsideration because the IBP had no more jurisdiction on the case
as the matter had already been referred to the Court.
The Ruling of the Court
The Court finds respondent liable for violation of Canon 1 and Rule
1.02 of the Code.
A lawyer should not render any service or give advice to any client
which will involve defiance of the laws which he is bound to uphold
and obey.9 A lawyer who assists a client in a dishonest scheme or who
connives in violating the law commits an act which justifies
disciplinary action against the lawyer.10
By his own admission, respondent admitted that Stier, a U.S. citizen,
was disqualified from owning real property.11 Yet, in his motion for
reconsideration,12 respondent admitted that he caused the transfer of
ownership to the parcel of land to Stier. Respondent, however, aware
of the prohibition, quickly rectified his act and transferred the title in
complainant's name. But respondent provided "some safeguards" by
preparing several documents,13 including the Occupancy Agreement,
that would guarantee Stier's recognition as the actual owner of the
property despite its transfer in complainant's name. In effect,
respondent advised and aided Stier in circumventing the constitutional
prohibition against foreign ownership of lands14 by preparing said
documents.
Respondent had sworn to uphold the Constitution. Thus, he violated
his oath and the Code when he prepared and notarized the Occupancy
Agreement to evade the law against foreign ownership of lands.
Respondent used his knowledge of the law to achieve an unlawful end.
Such an act amounts to malpractice in his office, for which he may be
suspended.15
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended
from the practice of law for three years for preparing an affidavit that
virtually permitted him to commit concubinage. In In re:
Santiago,17 respondent Atty. Santiago was suspended from the
practice of law for one year for preparing a contract which declared the
spouses to be single again after nine years of separation and allowed
them to contract separately subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O.
Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the
Code of Professional Responsibility. Accordingly,
we SUSPEND respondent Atty. Emmanuel O. Tansingco from the
practice of law for SIX MONTHS effective upon finality of this
Decision.
Let copies of this Decision be furnished the Office of the Bar
Confidant to be appended to respondent's personal record as an
attorney, the Integrated Bar of the Philippines, the Department of
Justice, and all courts in the country for their information and
guidance.
SO ORDERED.
A.C. No. 7204 March 7, 2007 Sent by - forget the case. I decided to refer it with other lawyer
CYNTHIA ADVINCULA, Complainant, complainant
vs. At 5:33:46 pm
ATTY. ERNESTO M. MACABATA, Respondent.
replied by - "does this mean I can not c u anymore"
RESOLUTION respondent (Does this mean I cannot see you
at 6:16:11 pm anymore)
CHICO-NAZARIO, J.:
Before Us is a complaint1 for disbarment filed by Cynthia Advincula sent by - I feel bad. I can’t expect that u will take advantage of
against respondent Atty. Ernesto M. Macabata, charging the latter with complainant the situation.
Gross Immorality. at 6:17:59 pm
Complainant alleged the following:
Follow-up - wrong to kiss a girl especially in the lips if you don’t
Sometime on 1st week of December 2004 complainant [Cynthia message have relationship with her.
Advincula] seek the legal advice of the respondent [Atty. Macabata], Sent by
regarding her collectibles from Queensway Travel and Tours. As complainant
promised, he sent Demand Letter dated December 11, 2004 (copy At 6:29:30 pm
attached as Annex "I") to the concerned parties.
Replied by - "I’m veri sri. It’s not tking advantage of the situation,
On February 10, 2005, met (sic) at Zensho Restaurant in Tomas
respondent 2 put it rightly it s an expression of feeling. S sri" (I’m
Morato, Quezon City to discuss the possibility of filing the complaint
At 6:32:43 pm very sorry. Its not taking advantage of the situation, to
against Queensway Travel and Tours because they did not settle their
put it rightly it is an expression of feeling)
accounts as demanded. After the dinner, respondent sent complainant
home and while she is about to step out of the car, respondent hold
(sic) her arm and kissed her on the cheek and embraced her very Follow up - I’m s sri. Il not do it again. Wil u stil c me s I can
tightly. message show u my sincerity" (I’m so sorry. I’ll not do it again.
by respondent Will you still see me so I can show you my sincerity)
Again, on March 6, 2005, at about past 10:00 in the morning, she met at 6:42:25 pm
respondent at Starbucks coffee shop in West Avenue, Quezon City to
finalize the draft of the complaint to be filed in Court. After the Complainant even in a state of shocked (sic) succeeded in resisting his
meeting, respondent offered again a ride, which he usually did every criminal attempt and immediately manage (sic) to go (sic) out of the
time they met. Along the way, complainant was wandering (sic) why car.
she felt so sleepy where in fact she just got up from bed a few hours In the late afternoon, complainant sent a text message to respondent
ago. At along Roosevelt Avenue immediately after corner of Felipe informing him that she decided to refer the case with another lawyer
St., in San Francisco Del Monte, Quezon City when she was almost and needs (sic) to get back the case folder from him. The
restless respondent stopped his car and forcefully hold (sic) her face
and kissed her lips while the other hand was holding her breast.
communications transpired was recorded in her cellular phone and
read as follows:
On the following day, March 7, 2005 respondent sent another message
to complainant at 3:55:32 pm saying "I don’t know wat 2 do s u may
4give me. "Im realy sri. Puede bati na tyo." (I don’t know what to do
so you may forgive me. I’m really sorry. Puede bati na tayo).
Respondent replied "talk to my lawyer in due time." Then another
message was received by her at 4:06:33 pm saying "Ano k ba. I’m
really sri. Pls. Nxt ime bhave n me." (Ano ka ba. I’m really sorry.
Please next time behave na ko), which is a clear manifestation of
admission of guilt.2
3
In his answer, respondent admitted that he agreed to provide legal
services to the complainant; that he met with complainant on 10
February 2005 and 6 March 2005, to discuss the relevant matters
relative to the case which complainant was intending to file against the
owners of Queensway Travel and Tours for collection of a sum of
money; that on both occasions, complainant rode with him in his car
where he held and kissed complainant on the lips as the former offered
her lips to him; and, that the corner of Cooper Street and Roosevelt
Avenue, where he dropped off the complainant, was a busy street
teeming with people, thus, it would have been impossible to commit
the acts imputed to him.
By way of defense, respondent further elucidated that: 1) there was a
criminal case for Acts of Lasciviousness filed by complainant against
respondent pending before the Office of the City Prosecutor in Quezon
City; 2) the legal name of complainant is Cynthia Advincula Toriana
since she remains married to a certain Jinky Toriana because the civil
case for the nullification of their marriage was archived pursuant to the
Order dated 6 December 2000 issued by the Regional Trial Court of
Maburao, Occidental Mindoro; 3) the complainant was living with a
man not her husband; and 4) the complainant never bothered to discuss
respondent’s fees and it was respondent who always paid for their bills
every time they met and ate at a restaurant.
A hearing was conducted by the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) at the IBP Building, Ortigas
Center, Pasig City, on 26 July 2005.
On 30 September 2005, Investigating Commissioner Dennis A. B.
Funa submitted his Report and Recommendation,4 recommending the
imposition of the penalty of one (1) month suspension on respondent
for violation of the Code of Professional Responsibility.
Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20
March 2006, approving and adopting, with modification, the
recommendation of the Investigating Commissioner, thus:
RESOLVED to ADOPT and APPROVE, as it is 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 the
applicable laws and rules, and considering the behavior of Respondent
went beyond the norms of conduct required of a lawyer when dealing
with or relating with a client, Atty. Ernesto A. Macabata is
SUSPENDED from the practice of law for three (3) months.5
The issue to be resolved in this case is: whether respondent committed
acts that are grossly immoral or which constitute serious moral
depravity that would warrant his disbarment or suspension from the
practice of law.
Simple as the facts of the case may be, the manner by which we deal
with respondent’s actuations shall have a rippling effect on how the
standard norms of our legal practitioners should be defined. Perhaps
morality in our liberal society today is a far cry from what it used to
be. This permissiveness notwithstanding, lawyers, as keepers of public
faith, are burdened with a high degree of social responsibility and,
hence, must handle their personal affairs with greater caution.
The Code of Professional Responsibility provides:
CANON I – x x x
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.
CANON 7-- A lawyer shall at all times uphold the integrity and
dignity of the legal profession and support the activities of the
Integrated Bar.
xxxx
Rule 7.03-- A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall he, whether in public or
private life, behave in a scandalous manner to the discredit of the legal
profession.
As may be gleaned from above, the Code of Professional
Responsibility forbids lawyers from engaging in unlawful, dishonest,
immoral or deceitful conduct.
Lawyers have been repeatedly reminded that their possession of good
moral character is a continuing condition to preserve their membership
in the Bar in good standing. The continued possession of good moral
character is a requisite condition for remaining in the practice of
law.6 In Aldovino v. Pujalte, Jr.,7 we emphasized that:
This Court has been exacting in its demand for integrity and good
moral character of members of the Bar. They are expected at all times
to uphold the integrity and dignity of the legal profession and refrain
from any act or omission which might lessen the trust and confidence
reposed by the public in the fidelity, honesty, and integrity of the legal
profession. Membership in the legal profession is a privilege. And
whenever it is made to appear that an attorney is no longer worthy of
the trust and confidence of the public, it becomes not only the right but
also the duty of this Court, which made him one of its officers and
gave him the privilege of ministering within its Bar, to withdraw the
privilege.
It is the bounden duty of lawyers to adhere unwaveringly to the highest
standards of morality. The legal profession exacts from its members
nothing less. Lawyers are called upon to safeguard the integrity of the
Bar, free from misdeeds and acts constitutive of malpractice. Their
exalted positions as officers of the court demand no less than the
highest degree of morality.8 We explained in Barrientos v.
Daarol9 that, "as officers of the court, lawyers must not only in fact be
of good moral character but must also be seen to be of good moral
character and leading lives in accordance with the highest moral
standards of the community."
Lawyers are expected to abide by the tenets of morality, not only upon
admission to the Bar but also throughout their legal career, in order to
maintain their good standing in this exclusive and honored fraternity.
They may be suspended from the practice of law or disbarred for any
misconduct, even if it pertains to his private activities, as long as it
shows him to be wanting in moral character, honesty, probity or good
demeanor.10
In Bar Matter No. 1154,11 good moral character was defined as what a
person really is, as distinguished from good reputation, or from the
opinion generally entertained of him, or the estimate in which he is
held by the public in the place where he is known. Moral character is
not a subjective term but one which corresponds to objective reality.
It should be noted that the requirement of good moral character has
four ostensible purposes, namely: (1) to protect the public; (2) to
protect the public image of lawyers; (3) to protect prospective clients;
and (4) to protect errant lawyers from themselves.12
In the case at bar, respondent admitted kissing complainant on the lips.
In his Answer,13 respondent confessed, thus:
27. When she was about to get off the car, I said can I kiss you
goodnight. She offered her left cheek and I kissed it and with my left
hand slightly pulled her right face towards me and kissed her gently on
the lips. We said goodnight and she got off the car.
xxxx
35. When I stopped my car I said okay. I saw her offered (sic) her left
cheek and I lightly kissed it and with my right hand slightly pulled her
right cheek towards me and plant (sic) a light kiss on her lips. There
was no force used. No intimidation made, no lewd designs displayed.
No breast holding was done. Everything happened very spontaneously
with no reaction from her except saying "sexual harassment."
During the hearing held on 26 July 2005 at the 3rd floor, IBP Building,
Dona Julia Vargas Avenue, Ortigas City, respondent candidly recalled
the following events:
ATTY. MACABATA:
That time in February, we met … I fetched her I should say,
somewhere along the corner of Edsa and Kamuning because it was
then raining so we are texting each other. So I parked my car
somewhere along the corner of Edsa and Kamuning and I was there
about ten to fifteen minutes then she arrived. And so I said … she
opened my car and then she went inside so I said, would you like that
we have a Japanese dinner? And she said yes, okay. So I brought her
to Zensho which is along Tomas Morato. When we were there, we
discussed about her case, we ordered food and then a little while I told
her, would it be okay for you of I (sic) order wine? She said yes so I
ordered two glasses of red wine. After that, after discussing matters
about her case, so I said … it’s about 9:00 or beyond that time already,
so I said okay, let’s go. So when I said let’s go so I stood up and then I
went to the car. I went ahead of my car and she followed me then she
rode on (sic) it. So I told her where to? She told me just drop me at the
same place where you have been dropping me for the last meetings
that we had and that was at the corner of Morato and Roosevelt
Avenue. So, before she went down, I told her can I kiss you
goodnight? She offered her left cheek and I kissed it and with the
slight use of my right hand, I ... should I say tilted her face towards me
and when she’s already facing me I lightly kissed her on the lips. And
then I said good night. She went down the car, that’s it.
COMM. FUNA:
February 10 iyan.
xxxx
ATTY. MACABATA:
Okay. After that were through so I said let’s go because I have an
appointment. So we went out, we went inside my car and I said where
to? Same place, she said, so then at the same corner. So before she
went down , before she opened the door of the car, I saw her offered
her left cheek. So I kissed her again.
COMM. FUNA:
Pardon?
ATTY. MACABATA:
I saw her offered her left cheek like that, so I kissed her again and then
with the use of my left hand, pushed a little bit her face and then kissed
her again softly on the lips and that’s it. x x x.14 (Emphases supplied.)
It is difficult to state with precision and to fix an inflexible standard as
to what is "grossly immoral conduct" or to specify the moral
delinquency and obliquity which render a lawyer unworthy of
continuing as a member of the bar. The rule implies that what appears
to be unconventional behavior to the straight-laced may not be the
immoral conduct that warrants disbarment.15
In Zaguirre v. Castillo,16 we reiterated the definition of immoral
conduct, as such conduct which is so willful, flagrant, or shameless as
to show indifference to the opinion of good and respectable members
of the community. Furthermore, for such conduct to warrant
disciplinary action, the same must not simply be immoral, but grossly
immoral. It must be so corrupt as to constitute a criminal act, or so
unprincipled as to be reprehensible to a high degree or committed
under such scandalous or revolting circumstances as to shock the
common sense of decency.
The following cases were considered by this Court as constitutive of
grossly immoral conduct:
In Toledo v. Toledo,17 a lawyer was disbarred from the practice of law,
when he abandoned his lawful wife and cohabited with another woman
who had borne him a child.
In Obusan v. Obusan, Jr.,18 a lawyer was disbarred after complainant
proved that he had abandoned her and maintained an adulterous
relationship with a married woman. This court declared that
respondent failed to maintain the highest degree of morality expected
and required of a member of the bar.
In Dantes v. Dantes,19 respondent’s act of engaging in illicit
relationships with two different women during the subsistence of his
marriage to the complainant constitutes grossly immoral conduct
warranting the imposition of appropriate sanctions. Complainant’s
testimony, taken in conjunction with the documentary evidence,
sufficiently established that respondent breached the high and exacting
moral standards set for members of the law profession.
In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral of
respondent, a married man with children, to have taken advantage of
his position as chairman of the college of medicine in asking
complainant, a student in said college, to go with him to Manila where
he had carnal knowledge of her under the threat that she would flank
in all her subjects in case she refused.
In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred when
he abandoned his lawful wife and three children, lured an innocent
woman into marrying him and misrepresented himself as a "bachelor"
so he could contract marriage in a foreign land.
In Macarrubo v. Macarrubo,22 respondent entered into multiple
marriages and then resorted to legal remedies to sever them. There, we
ruled that "[s]uch pattern of misconduct by respondent undermines the
institutions of marriage and family, institutions that this society looks
to for the rearing of our children, for the development of values
essential to the survival and well-being of our communities, and for
the strengthening of our nation as a whole." As such, "there can be no
other fate that awaits respondent than to be disbarred."
In Tucay v. Tucay,23 respondent contracted marriage with another
married woman and left complainant with whom he has been married
for thirty years. We ruled that such acts constitute "a grossly immoral
conduct and only indicative of an extremely low regard for the
fundamental ethics of his profession," warranting respondent’s
disbarment.
In Villasanta v. Peralta,24 respondent married complainant while his
first wife was still alive, their marriage still valid and subsisting. We
held that "the act of respondent of contracting the second marriage is
contrary to honesty, justice, decency and morality." Thus, lacking the
good moral character required by the Rules of Court, respondent was
disqualified from being admitted to the bar.
In Cabrera v. Agustin,25 respondent lured an innocent woman into a
simulated marriage and thereafter satisfied his lust. We held that
respondent failed to maintain that degree of morality and integrity
which, at all times, is expected of members of the bar. He is, therefore,
disbarred from the practice of law.
Immorality has not been confined to sexual matters, but includes
conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of
respectable members of the community, and an inconsiderate attitude
toward good order and public welfare.26
Guided by the definitions above, we perceived acts of kissing or beso-
beso on the cheeks as mere gestures of friendship and
camaraderie,27 forms of greetings, casual and customary. The acts of
respondent, though, in turning the head of complainant towards him
and kissing her on the lips are distasteful. However, such act, even if
considered offensive and undesirable, cannot be considered grossly
immoral.
Complainant’s bare allegation that respondent made use and took
advantage of his position as a lawyer to lure her to agree to have
sexual relations with him, deserves no credit. The burden of proof rests
on the complainant, and she must establish the case against the
respondent by clear, convincing and satisfactory proof,28 disclosing a
case that is free from doubt as to compel the exercise by the Court of
its disciplinary power.29 Thus, the adage that "he who asserts not he
who denies, must prove."30 As a basic rule in evidence, the burden of
proof lies on the party who makes the allegations—ei incumbit
probation, qui decit, non qui negat; cum per rerum naturam factum
negantis probation nulla sit.31 In the case at bar, complainant miserably
failed to comply with the burden of proof required of her. A mere
charge or allegation of wrongdoing does not suffice. Accusation is not
synonymous with guilt.32
Moreover, while respondent admitted having kissed complainant on
the lips, the same was not motivated by malice. We come to this
conclusion because right after the complainant expressed her
annoyance at being kissed by the respondent through a cellular phone
text message, respondent immediately extended an apology to
complainant also via cellular phone text message. The exchange of
text messages between complainant and respondent bears this out.
Be it noted also that the incident happened in a place where there were
several people in the vicinity considering that Roosevelt Avenue is a
major jeepney route for 24 hours. If respondent truly had malicious
designs on complainant, he could have brought her to a private place
or a more remote place where he could freely accomplish the same.
All told, as shown by the above circumstances, respondent’s acts are
not grossly immoral nor highly reprehensible to warrant disbarment or
suspension.
The question as to what disciplinary sanction should be imposed
against a lawyer found guilty of misconduct requires consideration of a
number of factors.33 When deciding upon the appropriate sanction, the
Court must consider that the primary purposes of disciplinary
proceedings are to protect the public; to foster public confidence in the
Bar; to preserve the integrity of the profession; and to deter other
lawyers from similar misconduct.34 Disciplinary proceedings are
means of protecting the administration of justice by requiring those
who carry out this important function to be competent, honorable and
reliable men in whom courts and clients may repose
confidence.35 While it is discretionary upon the Court to impose a
particular sanction that it may deem proper against an erring lawyer, it
should neither be arbitrary and despotic nor motivated by personal
animosity or prejudice, but should ever be controlled by the imperative
need to scrupulously guard the purity and independence of the bar and
to exact from the lawyer strict compliance with his duties to the court,
to his client, to his brethren in the profession and to the public.
The power to disbar or suspend ought always to be exercised on the
preservative and not on the vindictive principle, with great caution and
only for the most weighty reasons and only on clear cases of
misconduct which seriously affect the standing and character of the
lawyer as an officer of the court and member of the Bar. Only those
acts which cause loss of moral character should merit disbarment or
suspension, while those acts which neither affect nor erode the moral
character of the lawyer should only justify a lesser sanction unless they
are of such nature and to such extent as to clearly show the lawyer’s
unfitness to continue in the practice of law. The dubious character of
the act charged as well as the motivation which induced the lawyer to
commit it must be clearly demonstrated before suspension or
disbarment is meted out. The mitigating or aggravating circumstances
that attended the commission of the offense should also be
considered.36
Censure or reprimand is usually meted out for an isolated act of
misconduct of a lesser nature. It is also imposed for some minor
infraction of the lawyer’s duty to the court or the client.37 In the Matter
of Darell Adams,38 a lawyer was publicly reprimanded for grabbing a
female client, kissing her, and raising her blouse which constituted
illegal conduct involving moral turpitude and conduct which adversely
reflected on his fitness to practice law.
Based on the circumstances of the case as discussed and considering
that this is respondent’s first offense, reprimand would suffice.
We laud complainant’s effort to seek redress for what she honestly
believed to be an affront to her honor. Surely, it was difficult and
agonizing on her part to come out in the open and accuse her lawyer of
gross immoral conduct. However, her own assessment of the incidents
is highly subjective and partial, and surely needs to be corroborated or
supported by more objective evidence.
WHEREFORE, the complaint for disbarment against respondent Atty.
Ernesto Macabata, for alleged immorality, is hereby DISMISSED.
However, respondent is hereby REPRIMANDED to be more prudent
and cautious in his dealing with his clients with a STERN WARNING
that a more severe sanction will be imposed on him for any repetition
of the same or similar offense in the future.
SO ORDERED.

[G.R. No. 137378. October 12, 2000.]

PHILIPPINE ALUMINUM WHEELS, INC., Petitioner, v. FASGI

ENTERPRISES, INC., Respondent.

DECISION
VITUG, J.:
On 01 June 1978, FASGI Enterprises Incorporated ("FASGI"), a
corporation organized and existing under and by virtue of the laws of
the State of California, United States of America, entered into a
distributorship arrangement with Philippine Aluminum Wheels,
Incorporated ("PAWI"), a Philippine corporation, and Fratelli Pedrini
Sarezzo S.P.A. ("FPS"), an Italian corporation. The agreement
provided for the purchase, importation and distributorship in the
United States of aluminum wheels manufactured by PAWI. Pursuant
to the contract, PAWI shipped to FASGI a total of eight thousand five
hundred ninety four (8,594) wheels, with an FOB value of
US$216,444.30 at the time of shipment, the first batch arriving in two
containers and the second in three containers. Thereabouts, FASGI
paid PAWI the FOB value of the wheels. Unfortunately, FASGI later
found the shipment to be defective and in non-compliance with stated
requirements, viz;chanrob1es virtua1 1aw 1ibrary
"A. contrary to the terms of the Distributorship Agreement and in
violation of U.S. law, the country of origin (the Philippines) was not
stamped on the wheels;
"B. the wheels did not have weight load limits stamped on them as
required to avoid mounting on excessively heavy vehicles, resulting in
risk of damage or bodily injury to consumers arising from possible
shattering of the wheels;
"C many of the wheels did not have an indication as to which models
of automobile they would fit;
"D. many of the wheels did not fit the model automobiles for which
they were purportedly designed;
"E. some of the wheels did not fit any model automobile in use in the
United States;
"F. most of the boxes in which the wheels were packed indicated that
the wheels were approved by the Specialty Equipment Manufacturer’s
Association (hereafter, SEMA’); in fact no SEMA approval has been
obtained and this indication was therefore false and could result in
fraud upon retail customers purchasing the wheels." 1
On 21 September 1979, FASGI instituted an action against PAWI and
FPS for breach of contract and recovery of damages in the amount of
US$2,316,591.00 before the United States District Court for the
Central District of California. In January 1980, during the pendency of
the case, the parties entered into a settlement, entitled "Transaction"
with the corresponding Italian translation "Convenzione Transsativa,"
where it was stipulated that FPS and PAWI would accept the return of
not less than 8,100 wheels after restoring to FASGI the purchase price
of US$268,750.00 via four (4) irrevocable letters of credit ("LC"). The
rescission of the contract of distributorship was to be effected within
the period starting January up until April 1980. 2
In a telex message, dated 02 March 1980, PAWI president Romeo
Rojas expressed the company’s inability to comply with the foregoing
agreement and proposed a revised schedule of payment. The message,
in part read:jgc:chanrobles.com.ph
"We are most anxious in fulfilling all our obligations under
compromise agreement executed by our Mr. Giancarlo Dallera and
your Van Curen. We have tried our best to comply with our
commitments, however, because of the situation as mentioned in the
foregoing and currency regulations and restrictions imposed by our
government on the outflow of foreign currency from our country, we
are constrained to request for a revised schedule of shipment and
opening of LCS.
"After consulting with our bank and government monetary agencies
and on the assumption that we submit the required pro-forma invoices
we can open the letters of credit in your favor under the following
schedule:jgc:chanrobles.com.ph
"A) First L/C — it will be issued in April 1980 payable 90 days
thereafter
"B) Second L/C — it will be issued in June 1980 payable 90 days
thereafter
"C) Third L/C — it will be issued in August 1980 payable 90 days
thereafter
"D) Fourth L/C — it will be issued in November 1980 payable 90 days
thereafter
"We understand your situation regarding the lease of your warehouse.
For this reason, we are willing to defray the extra storage charges
resulting from this new schedule. If you cannot renew the lease [of]
your present warehouse, perhaps you can arrange to transfer to another
warehouse and storage charges transfer thereon will be for our
account. We hope you understand our position. The delay and the
revised schedules were caused by circumstances totally beyond our
control." 3
On 21 April 1980, again through a telex message, PAWI informed
FASGI that it was impossible to open a letter of credit on or before
April 1980 but assured that it would do its best to comply with the
suggested schedule of payments. 4 In its telex reply of 29 April 1980,
FASGI insisted that PAWI should meet the terms of the proposed
schedule of payments, specifically its undertaking to open the first LC
within April of 1980, and that "If the letter of credit is not opened by
April 30, 1980, then . . . [it would] immediately take all necessary
legal action to protect [its] position." 5
Despite its assurances, and FASGI’s insistence, PAWI failed to open
the first LC in April 1980 allegedly due to Central Bank "inquiries and
restrictions," prompting FASGI to pursue its complaint for damages
against PAWI before the California district court. Pre-trial conference
was held on 24 November 1980. In the interim, the parties, realizing
the protracted process of litigation, resolved to enter into another
arrangement, this time entitled "Supplemental Settlement Agreement,"
on 26 November 1980. In substance, the covenant provided that
FASGI would deliver to PAWI a container of wheels for every LC
opened and paid by PAWI:jgc:chanrobles.com.ph
"3. Agreement
"3.1 Sellers agree to pay FASGI Two Hundred Sixty-Eight Thousand,
Seven Hundred Fifty and 00/100 Dollars ($268,750.00), plus interest
and storage costs as described below. Sellers shall pay such amount by
delivering to FASGI the following four (4) irrevocable letters of credit,
confirmed by Crocker Bank, Main Branch, Fresno, California, as set
forth below:jgc:chanrobles.com.ph
"(i) on or before June 30, 1980, a documentary letter of credit in the
amount of (a) Sixty-Five Thousand, Three Hundred Sixty-nine and
00/100 Dollars ($65,369.00), (b) plus interest on that amount at the
annual rate of 16.25% from January 1, 1980 until July 31, 1980, (c)
plus Two Thousand Nine Hundred Forty Dollars and 00/100
($2,940.00) and (d) with interest on that sum at the annual rate of
16.25% from May 1, 1980 to July 31, 1980, payable on or after August
31, 1980;
"(ii) on or before September 1, 1980, a documentary letter of credit in
the amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety-
Three Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Two
Thousand, Nine Hundred Forty and 00/100 Dollars ($2,940.00), plus
(c) interest at an annual rate equal to the prime rate of Crocker Bank,
San Francisco, in effect from time to time, plus two percent on the
amount in (a) from January 1, 1980 until December 21, 1980, and on
the amount set forth in (b) from May 1, 1980 until December 21, 1980,
payable ninety days after the date of the bill of lading under the letter
of credit;
"(iii) on or before November 1, 1980, a documentary letter of credit in
the amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety-
Three Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Two
Thousand, Nine Hundred Forty and 00/100 Dollars ($2,490.00), plus
(c) interest at an annual rate equal to the prime rate of Crocker Bank,
San Francisco, in effect from time to time, plus two percent on the
amount in (a) from January 1, 1980 until February 21, 1981, and on
the amount set forth in (b) from May 1, 1980 until February 21, 1981,
payable ninety days after the date of the bill of lading under the letter
of credit;
"(iv) on or before January 1, 1981, a documentary letter of credit in the
amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety-Three
Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Five Thousand,
Eight Hundred Eighty and 00/100 Dollars ($5,880.00), plus (c) interest
at an annual rate equal to the prime rate of Crocker Bank, San
Francisco, in effect from time to time, plus two percent on the amount
in (a) from January 1, 1980 until April 21, 1981, and on the amount set
forth in (b) from May 1, 1980 until April 21, 1981, payable ninety
days after the date of the bill of lading under the letter of credit." 6
Anent the wheels still in the custody of FASGI, the supplemental
settlement agreement provided that —chanrob1es virtua1 1aw 1ibrary
"3.4 (a) Upon execution of this Supplemental Settlement Agreement,
the obligations of FASGI to store or maintain the Containers and
Wheels shall be limited to (i) storing the Wheels and Containers in
their present warehouse location and (ii) maintaining in effect
FASGI’s current insurance in favor of FASGI, insuring against usual
commercial risks for such storage in the principal amount of the
Letters of Credit described in Paragraph 3.1. FASGI shall bear no
liability, responsibility or risk for uninsurable risks or casualties to the
Containers or Wheels.
"x x x
"(e) From and after February 28, 1981, unless delivery of the Letters
of Credit are delayed past such date pursuant to the penultimate
Paragraph 3.1, in which case from and after such later date, FASGI
shall have no obligation to maintain, store or deliver any of the
Containers or Wheels." 7
The deal allowed FASGI to enter before the California court the
foregoing stipulations in the event of the failure of PAWI to make
good the scheduled payments; thus —
"3.5 Concurrently with execution and delivery hereof, the parties have
executed and delivered a Mutual Release (the ‘Mutual Release’), and a
Stipulation for Judgment (the ‘Stipulation for Judgment’) with respect
to the Action. In the event of breach of this Supplemental Settlement
Agreement by Sellers, FASGI shall have the right to apply
immediately to the Court for entry of Judgment pursuant to the
Stipulation for Judgment in the full amount thereof, less credit for any
payments made by Sellers pursuant to this Supplemental Settlement
Agreement. FASGI shall have the right thereafter to enforce the
Judgment against PAWI and FPS in the United States and in any other
country where assets of FPS or PAWI may be located, and FPS and
PAWI hereby waive all defenses in any such country to execution or
enforcement of the Judgment by FASGI. Specifically, FPS and PAWI
each consent to the jurisdiction of the Italian and Philippine courts in
any action brought by FASGI to seek a judgment in those countries
based upon a Judgment against FPS or PAWI in the Action." 8
In accordance with the aforementioned paragraph 3.5 of the
agreement, the parties made the following stipulation before the
California court:jgc:chanrobles.com.ph
"The undersigned parties hereto, having entered into a Supplemental
Settlement Agreement in this action,
"IT IS HEREBY STIPULATED by and between plaintiff FASGI
Enterprises, Inc. (’FASGI’) and defendants Philippine Aluminum
Wheels, Inc., (’PAWI’), and each of them, that judgment may be
entered in favor of plaintiff FASGI and against PAWI, in the amount
of Two Hundred Eighty Three Thousand Four Hundred Eighty And
01/100ths Dollars ($283,480.01).
"Plaintiff FASGI shall also be entitled to its costs of suit, and to
reasonable attorneys’ fees as determined by the Court added to the
above judgment amount." 9
The foregoing supplemental settlement agreement, as well as the
motion for the entry of judgment, was executed by FASGI president
Elena Buholzer and PAWI counsel Mr. Thomas Ready.
PAWI, again, proved to be remiss in its obligation under the
supplemental settlement agreement. While it opened the first LC on 19
June 1980, it, however, only paid on it nine (9) months after, or on 20
March 1981, when the letters of credit by then were supposed to have
all been already posted. This lapse, notwithstanding, FASGI promptly
shipped to PAWI the first container of wheels. Again, despite the
delay incurred by PAWI on the second LC, FASGI readily delivered
the second container. Later, PAWI totally defaulted in opening and
paying the third and the fourth LCs, scheduled to be opened on or
before, respectively, 01 September 1980 and 01 November 1980, and
each to be paid ninety (90) days after the date of the bill of lading
under the LC. As so expressed in their affidavits, FASGI counsel
Frank Ker and FASGI president Elena Buholzer were more inclined to
believe that PAWl’s failure to pay was due not to any restriction by the
Central Bank or any other cause than its inability to pay. These doubts
were based on the telex message of PAWI president Romeo Rojas who
attached a copy of a communication from the Central Bank notifying
PAWI of the bank’s approval of PAWI’s request to open LCs to cover
payment for the re-importation of the wheels. The communication
having been sent to FASGI before the supplemental settlement
agreement was executed, FASGI speculated that at the time PAWI
subsequently entered into the supplemental settlement agreement, its
request to open LCs had already been approved by the Central Bank.
Irked by PAWI’s persistent default, FASGI filed with the US District
Court of the Central District of California the following stipulation for
judgment against PAWI.
"PLEASE TAKE NOTICE that on May 17, 1982 at 10:00 A.M. in the
Courtroom of the Honorable Laughlin E. Waters of the above court,
plaintiff FASGI ENTERPRISES, INC. (hereinafter ‘FASGI’) will
move the Court for entry of Judgment against defendant PHILIPPINE
ALUMINUM WHEELS, INC. (hereinafter ‘PAWI’), pursuant to the
Stipulation for Judgment filed concurrently herewith, executed on
behalf of FASGI and PAWI by their respective attorneys, acting as
their authorized agents.
"Judgment will be sought in the total amount of P252,850.60,
including principal and interest accrued through May 17, 1982, plus
the sum of $17,500.00 as reasonable attorneys’ fees for plaintiff in
prosecuting this action.
"The Motion will be made under Rule 54 of the Federal Rules of Civil
Procedure, pursuant to and based upon the Stipulation for Judgment,
the Supplemental Settlement Agreement filed herein on or about
November 21, 1980, the Memorandum of Points and Authorities and
Affidavits of Elena Buholzer, Franck G. Ker and Stan Cornwell all
filed herewith, and upon all the records, files and pleadings in this
action.
"The Motion is made on the grounds that defendant PAWI has
breached its obligations as set forth in the Supplemental Settlement
Agreement, and that the Supplemental Settlement Agreement
expressly permits FASGI to enter the Stipulation for Judgment in the
event that PAWI has not performed under the Supplemental
Settlement Agreement." 10
On 24 August 1982, FASGI filed a notice of entry of judgment. A
certificate of finality of judgment was issued, on 07 September 1982,
by the US District Judge of the District Court for the Central District
of California. PAWI, by this time, was approximately twenty (20)
months in arrears in its obligation under the supplemental settlement
agreement.
Unable to obtain satisfaction of the final judgment within the United
States, FASGI filed a complaint for "enforcement of foreign
judgment" in February 1983, before the Regional Trial Court, Branch
61, of Makati, Philippines. The Makati court, however, in an order of
11 September 1990, dismissed the case, thereby denying the
enforcement of the foreign judgment within Philippine jurisdiction, on
the ground that the decree was tainted with collusion, fraud, and clear
mistake of law and fact. 11 The lower court ruled that the foreign
judgment ignored the reciprocal obligations of the parties. While the
assailed foreign judgment ordered the return by PAWI of the purchase
amount, no similar order was made requiring FASGI to return to
PAWI the third and fourth containers of wheels. 12 This situation, the
trial court maintained, amounted to an unjust enrichment on the part of
FASGI. Furthermore, the trial court said, the supplemental settlement
agreement and the subsequent motion for entry of judgment upon
which the California court had based its judgment were a nullity for
having been entered into by Mr. Thomas Ready, counsel for PAWI,
without the latter’s authorization.
FASGI appealed the decision of the trial court to the Court of Appeals.
In a decision, 13 dated 30 July 1997, the appellate court reversed the
decision of the trial court and ordered the full enforcement of the
California judgment.
Hence this appeal.
Generally, in the absence of a special compact, no sovereign is bound
to give effect within its dominion to a judgment rendered by a tribunal
of another country; 14 however, the rules of comity, utility and
convenience of nations have established a usage among civilized states
by which final judgments of foreign courts of competent jurisdiction
are reciprocally respected and rendered efficacious under certain
conditions that may vary in different countries. 15
In this jurisdiction, a valid judgment rendered by a foreign tribunal
may be recognized insofar as the immediate parties and the underlying
cause of action are concerned so long as it is convincingly shown that
there has been an opportunity for a full and fair hearing before a court
of competent jurisdiction; that trial upon regular proceedings has been
conducted, following due citation or voluntary appearance of the
defendant and under a system of jurisprudence likely to secure an
impartial administration of justice; and that there is nothing to indicate
either a prejudice in court and in the system of laws under which it is
sitting or fraud in procuring the judgment. 16 A foreign judgment is
presumed to be valid and binding in the country from which it comes,
until a contrary showing, on the basis of a presumption of regularity of
proceedings and the giving of due notice in the foreign forum. Rule 39,
section 48 of the Rules of Court of the Philippines
provides:chanrob1es virtual 1aw library
Sec. 48. Effect of foreign judgments or final orders — The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as
follows:chanrob1es virtual 1aw library
x x x
(b) In case of a judgment or final order against a person, the judgment
or final order is presumptive evidence of a right as between the parties
and their successors-in-interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud,
or clear mistake of law or fact.
In Soorajmull Nagarmull v. Binalbagan-Isabela Sugar Co. Inc., 17 one
of the early Philippine cases on the enforcement of foreign judgments,
this Court has ruled that a judgment for a sum of money rendered in a
foreign court is presumptive evidence of a right between the parties
and their successors in-interest by subsequent title, but when suit for
its enforcement is brought in a Philippine court, such judgment may be
repelled by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud or clear mistake of law or fact. In Northwest
Orient Airlines, Inc., v. Court of Appeals, 18 the Court has said that a
party attacking a foreign judgment is tasked with the burden of
overcoming its presumptive validity.chanrob1es virtua1 1aw 1ibrary
PAWI claims that its counsel, Mr. Ready, has acted without its
authority. Verily, in this jurisdiction, it is clear that an attorney cannot,
without a client’s authorization, settle the action or subject matter of
the litigation even when he honestly believes that such a settlement
will best serve his client’s interest. 19
In the instant case, the supplemental settlement agreement was signed
by the parties, including Mr. Thomas Ready, on 06 October 1980. The
agreement was lodged in the California case on 26 November 1980 or
two (2) days after the pre-trial conference held on 24 November 1980.
If Mr. Ready was indeed not authorized by PAWI to enter into the
supplemental settlement agreement, PAWI could have forthwith
signified to FASGI a disclaimer of the settlement. Instead, more than a
year after the execution of the supplemental settlement agreement,
particularly on 09 October 1981, PAWI President Romeo S. Rojas sent
a communication to Elena Buholzer of FASGI that failed to mention
Mr. Ready’s supposed lack of authority. On the contrary, the letter
confirmed the terms of the agreement when Mr. Rojas sought
forbearance for the impending delay in the opening of the first letter of
credit under the schedule stipulated in the agreement.
It is an accepted rule that when a client, upon becoming aware of the
compromise and the judgment thereon, fails to promptly repudiate the
action of his attorney, he will not afterwards be heard to complain
about it. 20
Nor could PAWI claim any prejudice by the settlement. PAWI was
spared from possibly paying FASGI substantial amounts of damages
and incurring heavy litigation expenses normally generated in a full-
blown trial. PAWI, under the agreement was afforded time to
reimburse FASGI the price it had paid for the defective wheels. PAWI,
should not, after its opportunity to enjoy the benefits of the agreement,
be allowed to later disown the arrangement when the terms thereof
ultimately would prove to operate against its hopeful expectations.
PAWI assailed not only Mr. Ready’s authority to sign on its behalf the
Supplemental Settlement Agreement but denounced likewise his
authority to enter into a stipulation for judgment before the California
court on 06 August 1982 on the ground that it had by then already
terminated the former’s services. For his part, Mr. Ready admitted that
while he did receive a request from Manuel Singson of PAWI to
withdraw from the motion of judgment, the request unfortunately came
too late. In an explanatory telex, Mr. Ready told Mr. Singson that
under American Judicial Procedures when a motion for judgment had
already been filed a counsel would not be permitted to withdraw
unilaterally without a court order. From the time the stipulation for
judgment was entered into on 26 April 1982 until the certificate of
finality of judgment was issued by the California court on 07
September 1982, no notification was issued by PAWI to FASGI
regarding its termination of Mr. Ready’s services. If PAWI were
indeed hoodwinked by Mr. Ready who purportedly acted in collusion
with FASGI, it should have aptly raised the issue before the forum
which issued the judgment in line with the principle of international
comity that a court of another jurisdiction should refrain, as a matter of
propriety and fairness, from so assuming the power of passing
judgment on the correctness of the application of law and the
evaluation of the facts of the judgment issued by another tribunal. 21
Fraud, to hinder the enforcement within this jurisdiction of a foreign
judgment, must be extrinsic, i.e., fraud based on facts not controverted
or resolved in the case where judgment is rendered, 22 or that which
would go to the jurisdiction of the court or would deprive the party
against whom judgment is rendered a chance to defend the action to
which he has a meritorious case or defense. In fine, intrinsic fraud, that
is, fraud which goes to the very existence of the cause of action – such
as fraud in obtaining the consent to a contract – is deemed already
adjudged, and it, therefore, cannot militate against the recognition or
enforcement of the foreign judgment. 23
Even while the US judgment was against both FPS and PAWI, FASGI
had every right to seek enforcement of the judgment solely against
PAWI or, for that matter, only against FPS. FASGI, in its complaint,
explained:jgc:chanrobles.com.ph
"17. There exists, and at all times relevant herein there existed, a unity
of interest and ownership between defendant PAWI and defendant
FPS, in that they are owned and controlled by the same shareholders
and managers, such that any individuality and separateness between
these defendants has ceased, if it ever existed, and defendant FPS is
the alter ego of defendant PAWI. The two entities are used
interchangeably by their shareholders and managers, and plaintiff has
found it impossible to ascertain with which entity it is dealing at any
one time. Adherence to the fiction of separate existence of these
defendant corporations would permit an abuse of the corporate
privilege and would promote injustice against this plaintiff because
assets can easily be shifted between the two companies thereby
frustrating plaintiff’s attempts to collect on any judgment rendered by
this Court." 24
Paragraph 14 of the Supplemental Settlement Agreement fixed the
liability of PAWI and FPS to be "joint and several" or solidary. The
enforcement of the judgment against PAWI alone would not, of
course, preclude it from pursuing and recovering whatever
contributory liability FPS might have pursuant to their own agreement.
 No.
 9881
 June
 4,
 2014
 CBD
 10-­‐2607)
PAWI would argue that it was incumbent upon FASGI to first return
the second and the third containers of defective wheels before it could
be required to return to FASGI the purchase price therefor, 25 relying
on their original agreement (the "Transaction"). 26 Unfortunately,
PAWI defaulted on its covenants thereunder that thereby occasioned
the subsequent execution of the supplemental settlement agreement.
This time the parties agreed, under paragraph 3.4(e) 27 thereof, that
any further default by PAWI would release FASGI from any
obligation to maintain, store or deliver the rejected wheels. The
supplemental settlement agreement evidently superseded, at the very
least on this point, the previous arrangements made by the parties.
PAWI cannot, by this petition for review, seek refuge over a business
dealing and decision gone awry. Neither do the courts function to
relieve a party from the effects of an unwise or unfavorable contract
freely entered into. As has so aptly been explained by the appellate
court, the over-all picture might, indeed, appear to be onerous to
PAWI but it should bear emphasis that the settlement which has
become the basis for the foreign judgment has not been the start of a
business venture but the end of a failed one, and each party, naturally,
has had to negotiate from either position of strength or weakness
depending on its own perception of who might have to bear the blame
for the failure and the consequence of loss. 28chanrob1es virtua1 1aw
1ibrary
Altogether, the Court finds no reversible error on the part of the
appellate court in its appealed judgment.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
No costs.
SO ORDERED.
A.C.
(Formerly
ATTY. ALAN F. PAGUIA, Petitioner,
vs.
ATTY. MANUEL T. MOLINA, Respondent.
RESOLUTION
SERENO, CJ:
For resolution by this Court is the dismissal by the Integrated Bar of
the Philippines (IBP) Board of Governors of the administrative
Complaint for DISHONESTY against respondent, Atty. Manuel
Molina. Atty. Molina allegedly advised his clients to enforce a contract
on the complainant's client who had never been a party to the
agreement.
The facts are as follows:
The case involves a conflict between neighbors in a four-unit
compound named "Times Square" at Times Street, Quezon City. The
neighbors are the following: 1) Mr. And Mrs. Gregorio M. Abreu,
clients of Atty. Paguia; 2) Mr. And Mrs. Wilson Lim, clients of
respondent Molina; 3) Dr. and Mrs. Eduardo Yap; and Dr. Belinda San
Juan.
The clients of Atty. Molina entered into a contract with the other unit
owners save for Mr. Abreu. The agreement, covered by a document
titled "Times Square Preamble," establishes a set of internal rules for
the neighbors on matters such as the use of the common right of way
to the exit gate, assignment of parking areas, and security. Mr. Abreu,
the client of complainant, Atty. Paguia, was not a party to the contract
since the former did not agree with the terms concerning the parking
arrangements.
On 4 February 2010, Atty. Paguia filed a Complaint for
Dishonesty1 with the IBP Commission on Bar Discipline against Atty.
Molina2 for allegedly giving legal advice to the latter’s clients to the
effect that the Times Square Preamble was binding on Mr. Abreu, who
was never a party to the contract.
In his Answer,3 Atty. Molina downplayed the case as a petty quarrel
among neighbors. He maintained that the Times Square Preamble4 was
entered into for purposes of maintaining order in the residential
compound. All homeowners, except Mr. Abreu, signed the document.5
Respondent further stated in his Answer that Mr. and Mrs. Gregorio
Abreu filed two cases against his clients, Mr. And Mrs. William Lim,
on the belief that Mr. Abreu was not bound by the Times Square
Preamble. The first case, was filed with the Housing and Land Use
Regulatory Board (HLURB), which was an action to declare the Times
Square Preamble invalid. The second suit was an action for declaratory
relief. Both cases, according to respondent, were dismissed.6
Respondent further claimed that another case had been filed in court,
this time by his client, the Lims. They were prompted to file a suit
since Mr. Abreu had allegedly taken matters into his own hands by
placing two vehicles directly in front of the gate of the Lims, thus
blocking the latter’s egress to Times Street. The Lims filed with the
Regional Trial Court, Branch 96, Quezon City, a Complaint for
Injunction and Damages, coupled with a prayer for the immediate
issuance of a Temporary Restraining Order and/or Preliminary
Injunction, which was docketed as Civil Case No. Q-08-63579.
According to respondent, the RTC granted the relief prayed for in an
Order dated 12 December 2008.7
Atty. Molina concluded that the above facts sufficiently served as his
answer to the Complaint.
On 3 August 2010, Investigating Commissioner Victor C. Fernandez
rendered a Report and Recommendation. He recommended dismissal
for lack of merit, based on the following grounds: 1) the complaint
consisted only of bare allegations; and 2) even assuming that
respondent Molina gave an erroneous legal advice, he could not be
held accountable in the absence of proof of malice or bad faith.8
On 14 May 2011, the IBP Board of Governors passed Resolution No.
XIX-2011-210, adopting and approving the Report and
Recommendation of the Investigating Commissioner.9
Atty. Paguia filed a Motion for Reconsideration dated 2 August 2011, Preamble is binding on complainant’s client, Mr. Abreu, who was not
but was denied by the IBP Board of Governors on 29 December a signatory to the agreement. The allegation of giving legal advice,
2012.10 Notices of the denial were received by the parties on 21 March however, was not substantiated in this case, either in the complaint or
2013.11 in the corresponding hearings. Nowhere do the records state that Atty.
Paguia saw respondent giving the legal advice to the clients of the
No petition for review has been filed with this Court.
latter. Bare allegations are not proof.13
It is worth noting that a case is deemed terminated if the complainant
Even if we assume that Atty. Molina did provide his clients legal
does not file a petition with the Supreme Court within fifteen (15) days
advice, he still cannot be held administratively liable without any
from notice of the Board’s resolution. This rule is derived from
showing that his act was attended with bad faith or malice. The rule on
Section 12(c) of Rule 139-B, which states:
mistakes committed by lawyers in the exercise of their profession is as
(c) If the respondent is exonerated by the Board or the disciplinary follows:
sanction imposed by it is less than suspension or disbarment (such as
An attorney-at-law is not expected to know all the law. For an honest
admonition, reprimand, or fine) it shall issue a decision exonerating
mistake or error, an attorney is not liable. Chief Justice Abbott said
respondent or imposing such sanction. The case shall be deemed
that, no attorney is bound to know all the law; God forbid that it
terminated unless upon petition of the complainant or other interested
should be imagined that an attorney or a counsel, or even a judge, is
party filed with the Supreme Court within fifteen (15) days from
bound to know all the law. x x x.14
notice of the Board’s resolution, the Supreme Court orders otherwise.
(Underscoring supplied) The default rule is presumption of good faith. On the other hand, bad
faith is never presumed.1âwphi1 It is a conclusion to be drawn from
In this case, Atty. Paguia received notice of the Board’s resolution on
facts. Its determination is thus a question of fact and is
21 March 2013, as evidenced by a registry return receipt. To this date,
evidentiary.15 There is no evidence, though, to show that the legal
this Court has yet to receive a petition for review from Atty. Paguia.
advice, assuming it was indeed given, was coupled with bad faith,
Thus, for his failure to file a petition for review with the Court within
malice, or ill-will. The presumption of good faith, therefore, stands in
15 days, this case is deemed terminated pursuant to the above
this case.
mentioned Section 12(c).
The foregoing considered, complainant failed to prove his case by
Nevertheless, we have gone over the records but we have no reason to
clear preponderance of evidence.
deviate from the findings of the IBP Board of Governors.
WHEREFORE, the Resolution of the IBP Board of Governors
When it comes to administrative cases against lawyers, two things are
adopting and approving the Decision of the Investigating
to be considered: quantum of proof, which requires clearly
Commissioner is hereby AFFIRMED.
preponderant evidence; and burden of proof, which is on the
complainant.12 SO ORDERED.
In the present case, we find that the Complaint is without factual basis. A.C. No. 6677 June 10, 2014
Complainant Atty. Paguia charges Atty. Molina with providing legal
EUPROCINA I. CRISOSTOMO, MARILYN L. SOLIS,
advice to the latter’s clients to the effect that the Times Square
EVELYN MARQUIZO, ROSEMARIE BALATUCAN,
MILDRED BATANG, MARILEN MINERALES, and MELINDA
D. SIOTING, Complainants,
vs.
ATTY. PHILIP Z. A. NAZARENO, Respondent.
DECISION
PERLAS-BERNABE, J.:
For the Court's resolution is an administrative complaint1 filed by
complainants Euprocina I. Crisostomo (Crisostomo), Marilyn L. Solis
(Solis), Evelyn Marquizo (Marquizo), Rosemarie Balatucan
(Balatucan), Mildred Batang (Batang), Marilen Minerales (Minerales),
and Melinda D. Sioting (Sioting) against respondent Atty. Philip Z. A.
Nazareno (Atty. Nazareno), charging him with making false
declarations in the certifications against forum shopping subject of this
case in disregard of Section 5, Rule 7 of the Rules of Court, and
malpractice as a notary public in violation of the Code of Professional
Responsibility.
The Facts
Sometime in 2001, complainants individually purchased housing units
(subject properties) in Patricia South Villa Subdivision, Anabu-II,
Imus, Cavite, from Rudex International Development Corp.
(Rudex).2 In view of several inadequacies and construction defects3 in
the housing units and the subdivision itself, complainants sought the
rescission of their respective contracts to sell before the Housing and
Land Use Regulatory Board (HLURB), seeking the refund of the
monthly amortizations they had paid.4 The first batch of rescission
cases was filed by herein complainants Sioting5 on May 24, 2002, and
Crisostomo6 and Marquizo7 on June 10, 2002, while the second batch
of rescission cases was filed by complainants Balatucan8 on March 3,
2003, Solis9 and Ederlinda M. Villanueva10 (represented by Minerales)
on May 12, 2003, and Batang11 on July 29, 2003. In all the foregoing
rescission cases, Rudex was represented by herein respondent Atty.
Nazareno.
Judgments of default were eventually rendered against Rudex in the
first batch of rescission cases.12 Sometime in August 2003, Rudex filed
three (3) petitions for review13 before the HLURB assailing the same.
In the certifications against forum shopping attached to the said
petitions, Rudex, through its President Ruben P. Baes, and legal
counsel Atty. Nazareno, stated that it has not commenced or has
knowledge of any similar action or proceeding involving the same
issues pending before any court, tribunal or agency14 – this,
notwithstanding the fact that Rudex, under the representation of Atty.
Nazareno, previously filed an ejectment case on September 9, 2002
against Sioting and her husband, Rodrigo Sioting (Sps. Sioting), before
the Municipal Trial Court of Imus, Cavite (MTC).15
On January 29, 2004, Rudex, again represented by Atty. Nazareno,
filed another complaint16 against Sps. Sioting before the HLURB for
the rescission of their contract to sell and the latter’s ejectment, similar
to its pending September 9, 2002 ejectment complaint. Yet, in the
certification against forum shopping attached thereto executed by the
Head of its Credit and Collection department, Norilyn D.
Unisan,17 Rudex declared that it has not commenced or is not aware of
any action or proceeding involving the same issues pending before any
court, tribunal or agency.18 The said certification was notarized by
Atty. Nazareno himself.19
On April 1, 2004, six (6) similar complaints20 for rescission of
contracts to sell and ejectment, plus damages for non-payment of
amortizations due, were filed by Atty. Nazareno, on behalf of Rudex,
against the other complainants before the HLURB. The certifications
against forum shopping attached thereto likewise stated that Rudex has
not commenced or has any knowledge of any similar pending action
before any court, tribunal or agency.21
On February 21, 2005, complainants jointly filed the present
administrative complaint for disbarment against Atty. Nazareno,
claiming that in the certifications against forum shopping attached to
the complaints for rescission and ejectment of Rudex filed while Atty.
Nazareno was its counsel, the latter made false declarations therein
that no similar actions or proceedings have been commenced by Rudex
or remained pending before any other court, tribunal or agency when,
in fact, similar actions or proceedings for rescission had been filed by
herein complainants before the HLURB against Rudex and Atty.
Nazareno, and an ejectment complaint was filed by Rudex, represented
by Atty. Nazareno, against Sps. Sioting. In addition, complainants
asserted that Atty. Nazareno committed malpractice as a notary public
since he only assigned one (1) document number (i.e., Doc. No. 1968)
in all the certifications against forum shopping that were separately
attached to the six (6) April 1, 2004 complaints for rescission and
ejectment.22
Despite notice, Atty. Nazareno failed to file his comment and refute
the administrative charges against him.23
In the interim, the HLURB, in the Resolutions dated April 14,
200524 and May 12, 2005,25 dismissed Rudex’s complaints for
rescission and ejectment26 on the ground that its statements in the
certifications against forum shopping attached thereto were false due
to the existence of similar pending cases in violation of Section 5,Rule
7 of the Rules of Court.
The IBP’s Report and Recommendation
In a Report and Recommendation27 dated March 8, 2012, Integrated
Bar of the Philippines (IBP) Investigating Commissioner Oliver A.
Cachapero recommended the suspension of Atty. Nazareno for a
period of six (6) months for his administrative violations.
The Investigating Commissioner found, among others, that there were
unassailable proofs that the certification against forum shopping
attached to Rudex’s ejectment complaint against Sps. Sioting had been
erroneously declared, considering that at the time Rudex filed the said
complaint in September 2002, Sps. Sioting’s rescission complaint
against Rudex, filed on May 24, 2002, was already pending. Hence, it
was incumbent upon Rudex to have declared its existence, more so,
since both complaints involve the same transaction and essential facts,
and a decision on the rescission complaint would amount to res
judicata on the ejectment complaint.28 In this relation, the Investigating
Commissioner observed that Atty. Nazareno cannot claim innocence
of his omission since he was not only Rudex’s counsel but the
notarizing officer as well. Having knowingly made false entries in the
subject certifications against forum shopping, the Investigating
Commissioner recommended that Atty. Nazareno be held
administratively liable and thereby penalized with six (6) months
suspension.29
In a Resolution30 dated April 15, 2013, the IBP Board of Governors
adopted and approved the Investigating Commissioner’s Report and
Recommendation, but modified the recommended penalty from a
suspension of six (6) months to only one (1) month.
The Issue Before the Court
The essential issue in this case is whether or not Atty. Nazareno should
be held administratively liable and accordingly suspended for a period
of one (1) month.
The Court’s Ruling
The Court affirms the IBP’s findings with modification as to the
penalty imposed.
Separate from the proscription against forum shopping31 is the
violation of the certification requirement against forum shopping,
which was distinguished in the case of Sps. Ong v. CA32 as follows:
The distinction between the prohibition against forum shopping and
the certification requirement should by now be too elementary to be
misunderstood. To reiterate, compliance with the certification against
forum shopping is separate from and independent of the avoidance of
the act of forum shopping itself. There is a difference in the treatment
between failure to comply with the certification requirement and
violation of the prohibition against forum shopping not only in terms
of imposable sanctions but also in the manner of enforcing them. The
former constitutes sufficient cause for the dismissal without prejudice
to the filing of the complaint or initiatory pleading upon motion and
after hearing, while the latter is a ground for summary dismissal
thereof and for direct contempt. x x x.33
Under Section 5, Rule 7 of the Rules of Court, the submission of false
entries in a certification against forum shopping constitutes indirect or
direct contempt of court, and subjects the erring counsel to the
corresponding administrative and criminal actions, viz.:
Section 5. Certification against forum shopping. — The plaintiff or
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim
is pending therein; (b) if there is such other pending action or claim, a
complete statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to
the court wherein his aforesaid complaint or initiatory pleading has
been filed.
Failure to comply with the foregoing requirements shall not be curable
by mere amendment of the complaint or other initiatory pleading but
shall be cause for the dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing. The submission of
a false certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without prejudice to
the corresponding administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary dismissal with
prejudice and shall constitute direct contempt, as well as a cause for
administrative sanctions. (Emphases supplied)
In the realm of legal ethics, said infraction may be considered as a
violation of Rule 1.01, Canon 1 and Rule 10.01, Canon 10 of the Code
of Professional Responsibility (Code) which read as follows:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION,
OBEY THE LAWS OF THE LANDAND PROMOTE RESPECT
FOR LAW AND LEGAL PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.
xxxx
CANON 10 – A LAWYER OWES CANDOR, FAIRNESS AND
GOOD FAITH TO THE COURT.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the
doing of any in Court; nor shall he mislead, or allow the Court to be
misled by any artifice.
In this case, it has been established that Atty. Nazareno made false
declarations in the certifications against forum shopping attached to
Rudex’s pleadings, for which he should be held administratively
liable.
Records show that Atty. Nazareno, acting as Rudex’s counsel, filed, in
August 2003, petitions for review assailing the judgments of default
rendered in the first batch of rescission cases without disclosing in the
certifications against forum shopping the existence of the ejectment
case it filed against Sps. Sioting which involves an issue related to the
complainants’ rescission cases. Further, on January 29, 2004, Rudex,
represented by Atty. Nazareno, filed a complaint for rescission and
ejectment against Sps. Sioting without disclosing in the certifications
against forum shopping the existence of Sioting’s May 24, 2002
rescission complaint against Rudex as well as Rudex’s own September
9, 2002 ejectment complaint also against Sps. Sioting. Finally, on
April 1, 2004,Atty. Nazareno, once more filed rescission and
ejectment complaints against the other complainants in this case
without disclosing in the certifications against forum shopping the
existence of complainants’ own complaints for rescission.
Owing to the evident similarity of the issues involved in each set of
cases, Atty. Nazareno – as mandated by the Rules of Court and more
pertinently, the canons of the Code – should have truthfully declared
the existence of the pending related cases in the certifications against
forum shopping attached to the pertinent pleadings. Considering that
Atty. Nazareno did not even bother to refute the charges against him
despite due notice, the Court finds no cogent reason to deviate from
the IBP’s resolution on his administrative liability.1âwphi1 However,
as for the penalty to be imposed, the Court deems it proper to modify
the IBP’s finding on this score.
In Molina v. Atty. Magat,34 a penalty of six (6) months suspension
from the practice of law was imposed against the lawyer therein who
was shown to have deliberately made false and untruthful statements
in one of his pleadings. Given that Atty. Nazareno’s infractions are of
a similar nature, but recognizing further that he, as may be gleaned
from the foregoing discussion, had repetitively committed the same,
the Court hereby suspends him from the practice of law for a period of
one (1) year.
Separately, the Court further finds Atty. Nazareno guilty of
malpractice as a notary public, considering that he assigned only one
document number (i.e., Doc. No. 1968) to the certifications against
forum shopping attached to the six (6) April 1, 2004 complaints for
rescission and ejectment despite the fact that each of them should have
been treated as a separate notarial act. It is a standing rule that for
every notarial act, the notary shall record in the notarial register at the
time of the notarization, among others, the entry and page number of
the document notarized, and that he shall give to each instrument or
document executed, sworn to, or acknowledged before him a number
corresponding to the one in his register.35 Evidently, Atty. Nazareno
did not comply with the foregoing rule.
Worse, Atty. Nazareno notarized the certifications against forum
shopping attached to all the aforementioned complaints, fully aware
that they identically asserted a material falsehood, i.e., that Rudex had
not commenced any actions or proceedings or was not aware of any
pending actions or proceedings involving the same issues in any other
forum. The administrative liability of an erring notary public in this
respect was clearly delineated as a violation of Rule 1.01,Canon 1 of
the Code in the case of Heirs of the Late Spouses Villanueva v. Atty.
Beradio,36 to wit:
Where admittedly the notary public has personal knowledge of a false
statement or information contained in the instrument to be notarized,
yet proceeds to affix his or her notarial seal on it, the Court must not
hesitate to discipline the notary public accordingly as the
circumstances of the case may dictate. Otherwise, the integrity and
sanctity of the notarization process may be undermined and public
confidence on notarial documents diminished. In this case,
respondent’s conduct amounted to a breach of Canon 1 of the Code of
Professional Responsibility, which requires lawyers to obey the laws
of the land and promote respect for the law and legal processes.
Respondent also violated Rule 1.01 of the Code which proscribes
lawyers from engaging in unlawful, dishonest, immoral, or deceitful
conduct.37 (Emphasis supplied)
In said case, the lawyer who knowingly notarized a document
containing false statements had his notarial commission revoked and
was disqualified from being commissioned as such for a period of one
(1) year. Thus, for his malpractice as a notary public, the Court is wont
to additionally impose the same penalties of such nature against him.
However, due to the multiplicity of his infractions on this front,
coupled with his willful malfeasance in discharging the office, the
Court deems it proper to revoke his existing commission and
permanently disqualify him from being commissioned as a notary
public. Indeed, respondent ought to be reminded that:38
Notarization is not an empty, meaningless, routinary act. It is invested
with substantive public interest, such that only those who are qualified
or authorized may act as notaries public. Notarization converts a
private document into a public document thus making that document
admissible in evidence without further proof of its authenticity. A
notarial document is by law entitled to full faith and credit upon its
face. Courts, administrative agencies and the public at large must be
able to rely upon he acknowledgment executed by a notary public and
appended to a private instrument.
xxxx
When a notary public certifies to the due execution and delivery of the
document under his hand and seal he gives the document the force of
evidence. Indeed, one of the purposes of requiring documents to be
acknowledged before a notary public, in addition to the solemnity
which should surround the execution and delivery of documents, is to
authorize such documents to be given without further proof of their
execution and delivery. Where the notary public is a lawyer, a graver
responsibility is placed upon him by reason of his solemn oath to obey
the laws and to do no falsehood or consent to the doing of any. Failing
in this, he must accept the consequences of his unwarranted actions.
WHEREFORE, respondent Atty. Philip Z. A. Nazareno is found
GUILTY of making false declarations in the certifications against
forum shopping subject of this case, as well as malpractice as a notary
public. Accordingly, he is SUSPENDED from the practice of law for a
period of one (1) year, effective upon his receipt of this Decision, with
a STERN WARNING that a repetition of the same or similar acts will
be dealt with more severely. Further, he is PERMANENTLY
DISQUALIFIED from being commissioned as a notary public and, his
notarial commission, if currently existing, is hereby REVOKED.
Let copies of this Decision be furnished the Office of the Bar
Confidant, to be appended to respondent's personal record as
attorney.1âwphi1 Likewise, copies shall be furnished to the Integrated
Bar of the Philippines and all courts in the country for their
information and guidance.
SO ORDERED.

A.C. No. 10576 January 14, 2015

 ARCATOMY S. GUARIN, Complainant,
vs.
ATTY. CHRISTINE A.C. LIMPIN, Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a complaint1 for disbarment filed by Arcatomy S. Guarin
against Atty. Christine Antenor-Cruz Limpin for allegedly filing a
false General Information Sheet (GIS) with the Securities and
Exchange Commission (SEC) thus violating Canon 12 and Rule
1.013 of the Code of Professional Responsibility (CPR).
The facts are culled from the pleadings.
In 2004, Guarin was hired by Mr. Celso G. de los Angeles as Chief
Operating Officer and thereafter as President of OneCard Company,
Inc., a member of the Legacy Group of Companies. He resigned from
his post effective August 11, 2008 and transferred to St. Luke's
Medical Center as the Vice President for Finance.
On November 27, 2008, Atty. Limpin, the Corporate Secretary of
Legacy Card, Inc. (LCI), another corporation under the Legacy Group,
filed with the SEC a GIS for LCI for "updating purposes". The
GIS4 identified Guarin as Chairman of the Board of Directors (BOD)
and President.
Mired with allegations of anomalous business transactions and
practices, on December 18, 2008, LCI applied for voluntary
dissolution with the SEC.
On July 22, 2009, Guarin filed this complaint with the Integrated Bar
of the Philippines Commission on Bar Discipline (IBP CBD) claiming
that Atty. Limpin violated Canon 1 and Rule 1.01 of the CPR by
knowingly listing him as a stockholder, Chairman of the Board and
President of LCI when she knew that he had already resigned and had
never held any share nor was he elected as chairperson of the BOD or
been President of LCI. He also never received any notice of meeting or
agenda where his appointment as Chairman would be taken up. He has
never accepted any appointment as Chairman and President of LCI.
Atty. Limpin admits that she filed the GIS with the SEC listing Guarin
as a stockholder, the Chairman of the BOD and President of LCI. She
argued that the GIS was provisional to comply with SEC requirements.
It would have been corrected in the future but unfortunately LCI filed
for voluntary dissolution shortly thereafter. She averred that the GIS
was made and submitted in good faith and that her certification served
to attest to the information from the last BOD meeting held on March
3, 2008.5
She asserted that Guarin knew that he was a stockholder. Atty. Limpin
said that on October 13, 2008, she sent Guarin a text message and
asked him to meet with her so hemay sign a Deed of Assignment
concerning shareholdings. Guarin responded in the affirmative and
said that he would meet with her on Friday, October 17, 2008. Guarin,
however, neglected to show up at the arranged time and place for
reasons unknown to Atty. Limpin. On the strength of Guarin’s positive
reply, Atty. Limpin filed the GIS on November 27, 2008.
To belie the claim that LCI never held any board meeting, Atty.
Limpin presented Secretary’s Certificates dated May 16, 20066 , May
22, 20067 , and June 13, 20078 bearing Guarin’s signature.
Moreover, Atty. Limpin stated that there were pending criminal
complaints against the directors and officers of LCI, where she and
Guarin are co-respondents: Senator Roxas, et al. v. Celso de los
Angeles, et al.9 and SEC v. Legacy Card, Inc.10 In those proceedings,
Guarin raised as a defense that the November 27, 2008 GIS was
spurious and/or perjured. She averred that this Court held that "when
the criminal prosecution based on the same act charged is still pending
in court, any administrative disciplinary proceedings for the same act
must await the outcome of the criminal case to avoid contradictory
findings."11 During the mandatory preliminary conference, however,
both parties stipulated that the complaint filed by Senator Roxas was
dismissed as to Guarin.12
Lastly, Atty. Limpin contends that Guarin failed to present sufficient
evidence to warrant disbarment.1âwphi1 She stated that merely
presenting the GIS does not constitute as proof of any unethical
conduct, harassment and malpractice.
In its Report,13 the IBP CBD found that Atty. Limpin violated Canon
1, Rules 1.01 and 1.0214 of the CPR and thus recommended that she be
suspended from the practice of law for three months. It noted that
based on the submissions of the parties, Guarin was never a
stockholder of LCI consequently making him ineligible tobe a member
of the BOD. Neither was there proof that Guarin acted as the President
of LCI but was a mere signatory of LCI’s bank accounts. This made
the verified statement of Atty. Limpin untrue.15
Moreover, it was noted that only Mr. Celso de los Angeles had the
authority to appoint or designate directors or officers of Legacy. Atty.
Limpin was aware that this procedure was not legally permissible.
Despite knowing this to be irregular, she allowed herself to be dictated
upon and falsely certified that Guarin was a stockholder, chairman and
president of the company. The Secretary’s Certificates with Guarin’s
signature Atty. Limpin presented were of no moment since inthese
Guarin merely acceded to become a signatory of bank accounts and
these do not show that Guarin was a stockholder.
The IBP Board of Governors in its April 15, 2013
Resolution16 adopted in totothe CBD Report. Atty. Limpin moved for
reconsideration17 but was denied in the March 21, 2014
Resolution18 of the IBP Board of Governors.
We adopt the report and recommendation of the IBP. Atty. Limpin has
violated Canon 1, Rule 1.01and Rule 1.02 of the CPR.
Members of the bar are reminded that their first duty is to comply with
the rules of procedure, ratherthan seek exceptions as loopholes.19 A
lawyer who assists a client in a dishonest scheme or who connives in
violating the law commits an act which justifies disciplinary action
against the lawyer.20
Disbarment proceedings are sui generisand can proceed independently
of civil and criminal cases.1âwphi1 As Justice Malcolm stated "[t]he
serious consequences of disbarment or suspension should follow only
where there is a clear preponderance of evidence against the
respondent. The presumption is that the attorney is innocent of the
charges pr[o]ferred and has performed his duty as an officer of the
court in accordance with his oath."21
Grounds for such administrative action against a lawyer may be found
in Section 27,22 Rule 138 of the Rules of Court. Among these are (1)
the use of any deceit, malpractice, or other gross misconduct in such
office and (2) any violation of the oath which he is required to take
before the admission to practice.
After going through the submissions and stipulations of the parties, we
agree with the IBP that there is no indication that Guarin held any
share to the corporation and that he is therefore ineligible to hold a seat
in the BOD and be the president of the company.23 It is undisputed that
Atty. Limpin filed and certified that Guarin was a stockholder of LCI
in the GIS. While she posits that she had made the same in good faith,
her certification also contained a stipulation that she made a due
verification of the statements contained therein. That Atty. Limpin
believed that Guarin would sign a Deed of Assignment is
inconsequential: he never signed the instrument. We also note that
there was no submission which would support the allegation that
Guarin was in fact a stockholder. We thus find that in filing a GIS that
contained false information, Atty. Limpin committed an infraction
which did not conform to her oath as a lawyer in accord with Canon 1
and Rule 1.01 of the CPR.1âwphi1
We also agree with the IBP that in allowing herself to be swayed by
the business practice of having Mr. de los Angeles appoint the
members of the BOD and officers of the corporation despite the rules
enunciated in the Corporation Code with respect to the election of such
officers, Atty. Limpin has transgressed Rule 1.02 of the CPR.
However, considering the seriousness of Atty. Limpin's action m
submitting a false document we see it fit to increase the recommended
penalty to six months suspension from the practice of law.
WHEREFORE, we find respondent Atty. Christine A.C. Limpin
GUILTY of violation of Canon 1, Rule 1.01 and Rule 1.02 of the Code
of Professional Responsibility. Accordingly, we SUSPEND
respondent Atty. Christine A.C. Limpin from the practice of law for
SIX (6) MONTHS effective upon finality of this Decision, with a
warning that a repetition of the same or similar act in the future will be
dealt with more severely.
Let copies of this Decision be furnished the Office of the Bar
Confidant to be appended to respondent's personal record as an
attorney, the Integrated Bar of the Philippines, the Department of
Justice, and all courts in the country for their information and
guidance.
SO ORDERED.
 EN BANC
A.C. No. 7973 and A.C. No. 10457, February 03, 2015
MELVYN G. GARCIA, Complainant, v. ATTY. RAUL H.
SESBREÑO, Respondent.
DECISION
PER CURIAM:
Two complaints for disbarment were filed by Dr. Melvyn G. Garcia
(Garcia) against Atty. Raul H. Sesbreño (Sesbreño). The two cases,
docketed as A.C. No. 7973 and A.C. No. 10457, were consolidated in
the Court’s Resolution dated 30 September 2014.
A.C. No. 7973
On 30 July 2008, Garcia filed a complaint for disbarment
against Sesbreño before the Office of the Bar Confidant. The case was
docketed as A.C. No. 7973. Garcia alleged that in 1965, he married
Virginia Alcantara in Cebu. They had two children, Maria Margarita
and Angie Ruth. In 1971, he and Virginia separated. He became a
dentist and practiced his profession in Cabanatuan City. Garcia alleged
that in 1992, Virginia filed a petition for the annulment of their
marriage, which was eventually granted.
Garcia alleged that in 2005 while he was in Japan, Sesbreño,
representing Maria Margarita and Angie Ruth, filed an action for
support against him and his sister Milagros Garcia Soliman. At the
time of the filing of the case, Maria Margarita was already 39 years old
while Angie Ruth was 35 years old. The case was dismissed. In 2007,
Garcia returned from Japan. When Sesbreño and Garcia’s children
learned about his return, Sesbreño filed a Second Amended Complaint
against him. Garcia alleged that he learned that Sesbreño was
convicted by the Regional Trial Court of Cebu City, Branch 18, for
Homicide in Criminal Case No. CBU-31733. Garcia alleged that
Sesbreño is only on parole. Garcia alleged that homicide is a crime
against moral turpitude; and thus, Sesbreño should not be allowed to
continue his practice of law.
In his Comment, Sesbreño alleged that on 15 August 2008, Garcia
filed a similar complaint against him before the Integrated Bar of the
Philippines, Commission on Bar Discipline (IBP-CBD), docketed as
CBC Case No. 08-2273. Sesbreño alleged that Garcia’s complaint was
motivated by resentment and desire for revenge because he acted as
pro bono counsel for Maria Margarita and Angie Ruth.
In the Court’s Resolution dated 18 January 2010, the Court referred
A.C. No. 7973 to the IBP for investigation, report and
recommendation.
A.C. No. 10457 (CBC Case No. 08-2273)
A day prior to the filing of A.C. No. 7973, or on 29 July 2008, Garcia
filed a complaint for disbarment against Sesbreño before the IBP-
CBD. He alleged that Sesbreño is practicing law despite his previous
conviction for homicide in Criminal Case No. CBU-31733, and
despite the facts that he is only on parole and that he has not fully
served his sentence. Garcia alleged that Sesbreño violated Section 27,
Rule 138 of the Rules of Court by continuing to engage in the practice
of law despite his conviction of a crime involving moral turpitude.
Upon the directive of the IBP-CBD, Garcia submitted his verified
complaint against Sesbreño alleging basically the same facts he
alleged in A.C. No. 7973.
In his answer to the complaint, Sesbreño alleged that his sentence was
commuted and the phrase “with the inherent accessory penalties
provided by law” was deleted. Sesbreño argued that even if the
accessory penalty was not deleted, the disqualification applies only
during the term of the sentence. Sesbreño further alleged that homicide
does not involve moral turpitude. Sesbreño claimed that Garcia’s
complaint was motivated by extreme malice, bad faith, and desire to
retaliate against him for representing Garcia’s daughters in court.

The IBP-CBD consolidated A.C. No. 7973 with CBD Case No. 08-
2273. The parties agreed on the sole issue to be resolved: whether
moral turpitude is involved in a conviction for homicide.
The IBP-CBD ruled that the Regional Trial Court of Cebu
found Sesbreño guilty of murder and sentenced him to suffer the
penalty of reclusion perpetua. On appeal, this Court downgraded the
crime to homicide and sentenced Sesbreño to suffer the penalty of
imprisonment for 9 years and 1 day of prision mayor as minimum to
16 years and 4 months of reclusion temporal as maximum. The IBP-
CBD found that Sesbreño was released from confinement on 27 July
2001 following his acceptance of the conditions of his parole on 10
July 2001.
The IBP-CBD ruled that conviction for a crime involving moral
turpitude is a ground for disbarment or suspension.
Citing International Rice Research Institute v. National Labor
Relations Commission,1 the IBP-CBD further ruled that homicide may
or may not involve moral turpitude depending on the degree of the
crime. The IBP-CBD reviewed the decision of this Court convicting
Sesbreño for the crime of homicide, and found that the circumstances
leading to the death of the victim involved moral turpitude. The IBP-
CBD stated:chanroblesvirtuallawlibrary
Neither victim Luciano Amparado nor his companion Christopher
Yapchangco was shown to be a foe of respondent and neither had the
victim Luciano nor his companion Christopher shown to have
wronged the respondent. They simply happened to be at the wrong
place and time the early morning of June 3, 1993.
The circumstances leading to the death of Luciano solely caused by
respondent, bear the earmarks of moral turpitude. Paraphrasing what
the Supreme Court observed in Soriano v. Dizon, supra, the
respondent, by his conduct, displayed extreme arrogance and feeling
of self-importance. Respondent acted like a god who deserved not to
be slighted by a couple of drunks who may have shattered the stillness
of the early morning with their boisterous antics, natural display of
loud bravado of drunken men who had one too many. Respondent’s
inordinate overreaction to the ramblings of drunken men who were not
even directed at respondent reflected poorly on his fitness to be a
member of the legal profession. Respondent was not only vindictive
without a cause; he was cruel with a misplaced sense of superiority.2
Following the ruling of this Court in Soriano v. Atty. Dizon3 where the
respondent was disbarred for having been convicted of frustrated
homicide, the IBP-CBD recommended that Sesbreño be disbarred and
his name stricken from the Roll of Attorneys.
In its Resolution No. XX-2013-19 dated 12 February 2013, the IBP
Board of Governors adopted and approved the Report and
Recommendation of the IBP-CBD.
On 6 May 2013, Sesbreño filed a motion for reconsideration before the
IBP-CBD. Sesbreño alleged that the IBP-CBD misunderstood and
misapplied Soriano v. Atty. Dizon. He alleged that the attendant
circumstances in Soriano are disparate, distinct, and different from his
case. He further alleged that there was no condition set on the grant of
executive clemency to him; and thus, he was restored to his full civil
and political rights. Finally, Sesbreño alleged that after his wife died in
an ambush, he already stopped appearing as private prosecutor in the
case for bigamy against Garcia and that he already advised his clients
to settle their other cases. He alleged that Garcia already withdrew the
complaints against him.
On 11 February 2014, the IBP Board of Governors passed Resolution
No. XX-2014-31 denying Sesbreño’s motion for reconsideration. The
IBP-CBD transmitted the records of the case to the Office of the Bar
Confidant on 20 May 2014. CBD Case No. 08-2273 was redocketed as
A.C. No. 10457. In the Court’s Resolution dated 30 September 2014,
the Court consolidated A.C. No. 7973 and A.C. No. 10457.

The only issue in these cases is whether conviction for the crime of
homicide involves moral turpitude.
We adopt the findings and recommendation of the IBP-CBD and
approve Resolution No. XX-2013-19 dated 12 February 2013
and Resolution No. XX-2014-31 dated 11 February 2014 of the IBP
Board of Governors.
Section 27, Rule 138 of the Rules of Court states that a member of the
bar may be disbarred or suspended as attorney by this Court by reason
of his conviction of a crime involving moral turpitude. This Court has
ruled that disbarment is the appropriate penalty for conviction by final
judgment for a crime involving moral turpitude.4 Moral turpitude is an
act of baseness, vileness, or depravity in the private duties which a
man owes to his fellow men or to society in general, contrary to
justice, honesty, modesty, or good
morals.5chanRoblesvirtualLawlibrary
The question of whether conviction for homicide involves moral
turpitude was discussed by this Court in International Rice Research
Institute v. NLRC6 where it ruled:chanroblesvirtuallawlibrary
This is not to say that all convictions of the crime of homicide do not
involve moral turpitude. Homicide may or may not involve moral
turpitude depending on the degree of the crime. Moral turpitude is not
involved in every criminal act and is not shown by every known and
intentional violation of statute, but whether any particular conviction
involves moral turpitude may be a question of fact and frequently
depends on all the surrounding circumstances. While x x x generally
but not always, crimes mala in se involve moral turpitude, while
crimes mala prohibita do not, it cannot always be ascertained whether
moral turpitude does or does not exist by classifying a crime as malum
in se or as malum prohibitum, since there are crimes which are mala in
se and yet rarely involve moral turpitude and there are crimes which
involve moral turpitude and are mala prohibita only. It follows
therefore, that moral turpitude is somewhat a vague and indefinite
term, the meaning of which must be left to the process of judicial
inclusion or exclusion as the cases are reached.7
In People v. Sesbreño,8 the Court found Sesbreño guilty of homicide
and ruled:chanroblesvirtuallawlibrary
WHEREFORE, the assailed decision of the Regional Trial Court of
Cebu City, Branch 18, in Criminal Case No. CBU-31733 is
hereby MODIFIED. Appellant Raul H. Sesbreño is hereby found
GUILTY of HOMICIDE and hereby sentenced to suffer a prison term
of 9 years and 1 day of prision mayor, as a minimum, to 16 years and
4 months of reclusion temporal, as a maximum, with accessory
penalties provided by law, to indemnify the heirs of the deceased
Luciano Amparado in the amount of P50,000.00 and to pay the costs.
SO ORDERED.9
We reviewed the Decision of this Court and we agree with the IBP-
CBD that the circumstances show the presence of moral turpitude.
The Decision showed that the victim Luciano Amparado (Amparado)
and his companion Christopher Yapchangco (Yapchangco) were
walking and just passed by Sesbreño’s house when the latter, without
any provocation from the former, went out of his house, aimed his
rifle, and started firing at them. According to Yapchangco, they were
about five meters, more or less, from the gate of Sesbreño when they
heard the screeching sound of the gate and when they turned around,
they saw Sesbreño aiming his rifle at them. Yapchangco and
Amparado ran away but Amparado was hit. An eyewitness, Rizaldy
Rabanes (Rabanes), recalled that he heard shots and opened the
window of his house. He saw Yapchangco and Amparado running
away while Sesbreño was firing his firearm rapidly, hitting Rabanes’
house in the process. Another witness, Edwin Parune, saw Amparado
fall down after being shot, then saw Sesbreño in the middle of the
street, carrying a long firearm, and walking back towards the gate of case, the executive clemency merely “commuted to an
his house. The IBP-CBD correctly stated that Amparado and indeterminate prison term of 7 years and 6 months to 10 years
Yapchangco were just at the wrong place and time. They did not do imprisonment” the penalty imposed on Sesbreño. Commutation is a
anything that justified the indiscriminate firing done by Sesbreño that mere reduction of penalty.16Commutation only partially
eventually led to the death of Amparado. extinguished criminal liability.17 The penalty for Sesbreño’s crime
was never wiped out. He served the commuted or reduced penalty, for
which reason he was released from prison. More importantly, the Final
Release and Discharge18 stated that “[i]t is understood that such x x x
We cannot accept Sesbreño’s argument that the executive clemency
accessory penalties of the law as have not been expressly remitted
restored his full civil and political rights. Sesbreño cited In re Atty.
herein shall subsist.” Hence, the Parcasio case has no application
Parcasio10 to bolster his argument. In that case, Atty. Parcasio was
here. Even if Sesbreño has been granted pardon, there is nothing in the
granted “an absolute and unconditional pardon”11 which restored his
records that shows that it was a full and unconditional pardon. In
“full civil and political rights,”12 a circumstance not present in these
addition, the practice of law is not a right but a privilege.19 It is granted
cases. Here, the Order of Commutation13 did not state that the pardon
only to those possessing good moral character.20 A violation of the
was absolute and unconditional. The accessory penalties were not
high moral standards of the legal profession justifies the imposition of
mentioned when the original sentence was recited in the Order of
the appropriate penalty against a lawyer, including the penalty of
Commutation and they were also not mentioned in stating the
disbarment.21chanRoblesvirtualLawlibrarychanrobleslaw
commuted sentence. It only states:chanroblesvirtuallawlibrary
By virtue of the authority conferred upon me by the Constitution and
upon the recommendation of the Board of Pardons and Parole, the
WHEREFORE, respondent Raul H. Sesbreño
original sentence of prisoner RAUL SESBREÑO Y HERDA
is DISBARRED effective immediately upon his receipt of this
convicted by the Regional Trial Court, Cebu City and Supreme Court
Decision.
and sentenced to an indeterminate prison term of from 9 years and 1
day to 16 years and 4 months imprisonment and to pay an indemnity
Let copies of this Decision be furnished the Office of the Bar
of P50,000.00 is/are hereby commuted to an indeterminate prison term
Confidant, the Integrated Bar of the Philippines for distribution to all
of from 7 years and 6 months to 10 years imprisonment and to pay an
its chapters, and the Office of the Court Administrator for
indemnity of P50,000.00.14
dissemination to all courts all over the country. Let a copy of this
Decision be attached to the personal records of respondent.
Again, there was no mention that the executive clemency was absolute
and unconditional and restored Sesbreño to his full civil and political SO ORDERED.
rights.

There are four acts of executive clemency that the President can
extend: the President can grant reprieves, commutations, pardons, and
remit fines and forfeitures, after conviction by final judgment.15 In this
A.C. NO. 10050 December 3, 2013
VICTORIA C. HEENAN, Complainant,
vs.
ATTY. ERLINA ESPEJO, Respondent.
DECISION
VELASCO, JR., J.:
This resolves the administrative complaint filed by Victoria Heenan
(Victoria) against Atty. Erlina Espejo (Atty. Espejo) before the
Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) for violation of lawyer’s oath, docketed as CBD
Case No. 10-2631.
The Facts
Sometime in January 2009, Victoria met Atty. Espejo through her
godmother, Corazon Eusebio (Corazon). Following the introduction,
Corazon told Victoria that Atty. Espejo was her lawyer in need of
money and wanted to borrow two hundred fifty thousand pesos (PhP
250,000) from her (Victoria). Shortly thereafter, Victoria went to the
house of Corazon for a meeting with Atty. Espejo where they
discussed the terms of the loan. Since Atty. Espejo was introduced to
her as her godmother’s lawyer, Victoria found no reason to distrust the
former. Hence, during the same meeting, Victoria agreed to
accomodate Atty. Espejo and there and then handed to the latter the
amount of PhP 250,000. To secure the payment of the loan, Atty.
Espejo simultaneously issued and turned over to Victoria a
check1 dated February 2, 2009 for two hundred seventy-five thousand
pesos (PhP 275,000) covering the loan amount and agreed interest. On
due date, Atty. Espejo requested Victoria to delay the deposit of the
check for the reason that she was still waiting for the release of the
proceeds of a bank loan to fund the check. However, after a couple of
months of waiting, Victoria received no word from Atty. Espejo as to
whether or not the check was already funded enough. In July 2009,
Victoria received an Espejo-issued check dated July 10, 2009 in the
amount of fifty thousand pesos (PhP 50,000)2 representing the interest
which accrued due to the late payment of the principal obligation.
Victoria deposited the said check but, to her dismay, the check
bounced due to insufficiency of funds. Atty. Espejo failed to pay
despite Victoria’s repeated demands. Worried that she would not be
able to recover the amount thus lent, Victoria decided to deposit to her
account the first check in the amount of PhP 275,000, but without
notifying Atty. Espejo of the fact. However, the said check was also
dishonored due to insufficiency of funds. Victoria thereafter became
more aggressive in her efforts to recover her money. She, for instance,
personally handed to Atty. Espejo a demand letter dated August 3,
2009.3
When Atty. Espejo still refused to pay, Victoria filed a criminal
complaint against Atty. Espejo on August 18, 2009 for violation of
Batas Pambansa Blg. 22 and Estafa under Article 315 of the Revised
Penal Code, as amended, before the Quezon City Prosecutor’s Office.4
Atty. Espejo disregarded the notices and subpoenas issued by the
Quezon City Prosecutor’s Office which she personally received and
continued to ignore Victoria’s demands. She attended only one (1)
scheduled preliminary investigation where she promised to pay her
loan obligation.5
In November 2009, Atty. Espejo issued another check dated December
8, 2009 in the amount of two hundred seventy five thousand pesos
(PhP 275,000.). However, to Victoria’s chagrin, the said check was
again dishonored due to insufficiency of funds.6 Atty. Espejo did not
file any counter-affidavit or pleading to answer the charges against
her. On November 17, 2009, the case was submitted for resolution
without Atty. Espejo’s participation.7 Victoria thereafter filed the
instant administrative case against Atty. Espejo before the CBD. On
March 1, 2010, the CBD, through Director for Bar Discipline Alicia A.
Risos-Vidal, issued an Order8 directing Atty. Espejo to submit her
Answer to Victoria’s administrative complaint failing which would
render her in default. The warning, notwithstanding, Atty. Espejo did
not submit any Answer. On May 5, 2010, IBP Commissioner Rebecca
Villanueva-Malala (Commissioner Villanueva-Malala) notified the
parties to appear for a mandatory conference set on June 2, 2010. The
notice stated that non-appearance of either of the parties shall be
deemed a waiver of her right to participate in further proceedings.9
At the mandatory conference, only Victoria appeared.10
Thus, Commissioner Villanueva-Malala issued an Order11 noting Atty.
Espejo’s failure to appear during the mandatory conference and her
failure to file an Answer. Accordingly, Atty. Espejo was declared in
default. Victoria, on the other hand, was directed to file her verified
position paper, which she filed on June 11, 2010.12
Findings and Recommendation of the IBP
In its Report and Recommendation13 dated July 15, 2010, the CBD
recommended the suspension of Atty. Espejo from the practice of law
and as a member of the Bar for a period of five (5) years.
The CBD reasoned:
The failure of a lawyer to answer the complaint for disbarment despite
due notice and to appear on the scheduled hearings set, shows his
flouting resistance to lawful orders of the court and illustrates his
deficiency for his oath of office as a lawyer, which deserves
disciplinary sanction.
Moreover, respondent[’s] acts of issuing checks with insufficient funds
and despite repeated demands [she] failed to comply with her
obligation and her disregard and failure to appear for preliminary
investigation and to submit her counter-affidavit to answer the charges
against her for Estafa and Violation of BP 22, constitute grave
misconduct that also warrant disciplinary action against respondent.
On December 14, 2012, the Board of Governors passed a
Resolution14 adopting the Report and Recommendation of the CBD
with the modification lowering Atty. Espejo’s suspension from five (5)
years to two (2) years. Atty. Espejo was also ordered to return to
Victoria the amount of PhP 250,000 within thirty (30) days from
receipt of notice with legal interest reckoned from the time the demand
was made. The Resolution reads:
RESOLVED to ADOPT and APPROVE, as it is hereby unanimously
ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner in 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 grave
misconduct, Atty. Erlinda Espejo is hereby SUSPENDED from the
practice of law for two (2) years and Ordered to Return to complainant
the amount of Two Hundred Fifty Thousand (₱250,000.00) Pesos
within thirty (30) days from receipt of notice with legal interest
reckoned from the time the demand was made.
On August 8, 2013, the CBD transmitted to this Court the Notice of
the Resolution pertaining to Resolution No. XX-2012-419 along with
the records of this case.15
The Court’s Ruling
We sustain the findings of the IBP and adopt its recommendation in
part.1âwphi1 Atty. Espejo did not deny obtaining a loan from Victoria
or traverse allegations that she issued unfunded checks to pay her
obligation. It has already been settled that the deliberate failure to pay
just debts and the issuance of worthless checks constitute gross
misconduct, for which a lawyer may be sanctioned.16
Verily, lawyers must at all times faithfully perform their duties to
society, to the bar, to the courts and to their clients. In Tomlin II v.
Moya II, We explained that the prompt payment of financial
obligations is one of the duties of a lawyer, thus:
In the present case, respondent admitted his monetary obligations to
the complaint but offered no justifiable reason for his continued refusal
to pay. Complainant made several demands, both verbal and written,
but respondent just ignored them and even made himself scarce.
Although he acknowledged his financial obligations to complainant,
respondent never offered nor made arrangements to pay his debt. On
the contrary, he refused to recognize any wrong doing nor shown
remorse for issuing worthless checks, an act constituting gross
misconduct. Respondent must be reminded that it is his duty as a
lawyer to faithfully perform at all times his duties to society, to the
bar, to the courts and to his clients. As part of his duties, he must
promptly pay his financial obligations.17
The fact that Atty. Espejo obtained the loan and issued the worthless
checks in her private capacity and not as an attorney of Victoria is of
no moment. As We have held in several cases, a lawyer may be
disciplined not only for malpractice and dishonesty in his profession
but also for gross misconduct outside of his professional capacity.
While the Court may not ordinarily discipline a lawyer for misconduct
committed in his non- professional or private capacity, the Court may
be justified in suspending or removing him as an attorney where his
misconduct outside of the lawyer’s professional dealings is so gross in
character as to show him morally unfit and unworthy of the privilege
which his licenses and the law confer.18
In Wilkie v. Limos, We reiterated that the issuance of a series of
worthless checks, which is exactly what Atty. Espejo committed in this
case, manifests a lawyer’s low regard for her commitment to her oath,
for which she may be disciplined. Thus:
We have held that the issuance of checks which were later dishonored
for having been drawn against a closed account indicates a lawyer’s
unfitness for the trust and confidence reposed on her. It shows a lack
of personal honesty and good moral character as to render her
unworthy of public confidence. The issuance of a series of worthless
checks also shows the remorseless attitude of respondent, unmindful to
the deleterious effects of such act to the public interest and public
order. It also manifests a lawyer’s low regard to her commitment to the
oath she has taken when she joined her peers, seriously and irreparably
tarnishing the image of the profession she should hold in high esteem.
xxxx
In Barrios v. Martinez, we disbarred the respondent who issued
worthless checks for which he was convicted in the criminal case filed
against him. In Lao v. Medel, we held that the deliberate failure to pay
just debts and the issuance of worthless checks constitute gross
misconduct, for which a lawyer may be sanctioned with one-year
suspension from the practice of law. The same sanction was imposed
on the respondent-lawyer in Rangwani v. Dino having been found
guilty of gross misconduct for issuing bad checks in payment of a
piece of property the title of which was only entrusted to him by the
complainant.19
Further, the misconduct of Atty. Espejo is aggravated by her
unjustified refusal to obey the orders of the IBP directing her to file an
answer to the complaint of Victoria and to appear at the scheduled
mandatory conference. This constitutes blatant disrespect for the IBP
which amounts to conduct unbecoming a lawyer. In Almendarez, Jr. v.
Langit, We held that a lawyer must maintain respect not only for the
courts, but also for judicial officers and other duly constituted
authorities, including the IBP:
The misconduct of respondent is aggravated by his unjustified refusal
to heed the orders of the IBP requiring him to file an answer to the
complaint-affidavit and, afterwards, to appear at the mandatory
conference. Although respondent did not appear at the conference, the
IBP gave him another chance to defend himself through a position
paper. Still, respondent ignored this directive, exhibiting a blatant
disrespect for authority. Indeed, he is justly charged with conduct
unbecoming a lawyer, for a lawyer is expected to uphold the law and
promote respect for legal processes. Further, a lawyer must observe
and maintain respect not only to the courts, but also to judicial officers
and other duly constituted authorities, including the IBP. Under Rule
139-B of the Rules of Court, the Court has empowered the IBP to
conduct proceedings for the disbarment, suspension, or discipline of
attorneys.20
Undoubtedly, Atty. Espejo’s issuance of worthless checks and her
blatant refusal to heed the directives of the Quezon City Prosecutor’s
Office and the IBP contravene Canon 1, Rule 1.01; Canon 7, Rule
7.03; and Canon 11 of the Code of Professional Responsibility, which
provide:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, Let copies of this Decision be furnished the Office of the Court
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT Administrator for dissemination to all courts, the Integrated Bar of the
FOR THE LAW AND LEGAL PROCESSES. Rule 1.01. – A lawyer Philippines and the Office of the Bar Confidant and recorded in the
shall not engage in unlawful, dishonest, immoral or deceitful conduct. personal files of respondent.
CANON 7 – A LAWYER SHALL AT ALL TIMES UPHOLD THE
SO ORDERED.
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Rule
7.03 – A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he, whether in public or private
life, behave in a scandalous manner to the discredit of the legal
profession. CANON 11 – A LAWYER SHALL OBSERVE AND
MAINTAIN THE RESPECT DUE TO THE COURTS AND TO
JUDICIAL OFFICES AND SHOULD INSIST ON SIMILAR
CONDUCT BY OTHERS.
We find the penalty of suspension from the practice of law for two (2)
years, as recommended by the IBP, commensurate under the
circumstances. We, however, cannot sustain the IBP’s
recommendation ordering Atty. Espejo to return the money she
borrowed from Victoria. In disciplinary proceedings against lawyers,
the only issue is whether the officer of the court is still fit to be
allowed to continue as a member of the Bar. Our only concern is the
determination of respondent’s administrative liability. Our findings
have no material bearing on other judicial action which the parties may
to choose me against each other. Furthermore, disciplinary
proceedings against lawyers do not involve a trial of an action, but
rather investigations by the Court into the conduct of one of its
officers. The only question for determination in these proceedings is
whether or not the attorney is still fit to be allowed to continue as a
member of the Bar. Thus, this Court cannot rule on the issue of the
amount of money that should be returned to the complainant.22
WHEREFORE, We find Atty. Erlinda B. Espejo GUILTY of gross
misconduct and violating Canons 1, 7 and 11 of the Code of
Professional Responsibility. We SUSPEND respondent from the
practice of law for two (2) years affective immediately.
 A.C. No. 6760 : January 30, 2013
ANASTACIO N. TEODORO III, Complainant, v. ATTY. ROMEO
S. GONZALES, Respondent.
DECISION
BRION, J.:
We resolve this disbarment complaint against Atty. Romeo S.
Gonzales for violation of the Code of Professional Responsibility for
the forum shopping he allegedly committed.
In his complaint,1 Anastacio N. Teodoro Ill related that Atty. Gonzales
acted as counsel of Araceli Teodoro-Marcial in two civil cases that the
latter filed against him. The first ccise, Special Proceeding No. 99-
95587,2 involved the settlement of the intestate estate of Manuela
Teodoro. While the settlement proceeding was pending, Atty.
Gonzales assisted
Teodord-Marcial in filing Civil Case No. 00-99207,3 for Annulment of
Document, Reconveyance and Damages, without indicating the special
proceeding earlier tiled. The tiling of the civil cases, according to
Anastacio, was a deliberate act of forum shopping that warrants the
disbarment of Atty. Gonzales.
Atty. Gonzales admitted that he assisted Teodoro-Marcial in tiling the
two cases. He asserted, however,, that he did not violate the forum
shopping rule as the cases were not identical in terms of parties,
subject matter and remedies. Atty. Gonzales also opined that the
complainant only filed the disbarment case to harass him.4?r?l1
The Investigating Commissioners Findings
In our Resolution5 dated March 13, 2006, we referred the disbarment
complaint to the Commission on Bar Discipline of the Integrated Bar
of the Philippines (IBP) for investigation, report and recommendation.
In his Report and Recommendation6 dated July 5, 2010, Commissioner
Caesar R. Dulay found Atty. Gonzales administratively liable for
forum shopping.
According to Commissioner Dulay, both Special Proceeding No. 99-
95587 and Civil Case No. 00-99207 hinged on the same substantial
issue, i.e., on whether Manuela held the Malate property in trust for
Carmen Teodoro-Reyes, Donato T. Teodoro, Jorge I. Teodoro and
Teodoro-Marcial.
In Special Proceeding No. 99-95587, Carmen, Donato, Jorge I.
Teodoro, Jorge T. Teodoro and Teodoro-Marcial claimed that they are
the heirs of Manuela. During her lifetime, Manuela was the registered
owner of a parcel of land located in Malate, Manila. According to the
heirs, Manuela held the lot in trust for them, but she sold it to
Anastacio and Rogelio Ng. Thus, the heirs prayed for the issuance of
letters of administration so that Manuelas properties could be
inventoried and settled in accordance with law.
In Civil Case No. 00-99207, the heirs of Manuela claimed to be the
beneficiaries of a trust held by Manuela over the same parcel of land
contested in Special Proceeding No. 99-95587. They alleged that
during her lifetime, Manuela sold a portion of this land to Anastacio.
They asked the trial court to annul the Deed of Absolute Sale executed
by Manuela; to cancel the resulting Transfer Certificate of Title in the
name of Anastacio; and to issue a new one in their names.
The commissioner found that a ruling in either case would result in res
judicata over the other. Thus, Atty. Gonzales committed forum
shopping when he instituted Civil Case No. 00-99207 without
indicating that Special Proceeding No. 99-95587 was still pending. In
committing forum shopping, Atty. Gonzales disregarded the Supreme
Court Circular prohibiting forum shopping and thus violated Canon 1
of the Code of Professional Responsibility.
Commissioner Dulay recommended that Atty. Gonzales be suspended
for one month from the practice of law, with a warning that a
repetition of a similar offense would merit a more severe penalty.
The Board of Governors of the IBP reversed the commissioners
recommendation. In a resolution7 dated December 10, 2011, the Board
of Governors dismissed the case against Atty. Gonzales for lack of
merit.
The Issue
The case directly poses to us the question of whether Atty. Gonzales
committed forum shopping and thereby violated the Code of
Professional Responsibility.
The Courts Ruling
We agree with the findings of the commissioner and accordingly
reverse the resolution of the IBP Board of Governors, but we modify
the commissioners recommended penalty to censure and a warning
that another violation would merit a more severe penalty.
Forum shopping exists when, as a result of an adverse decision in one
forum, or in anticipation thereof, a party seeks a favorable opinion in
another forum through means other than appeal or certiorari.8?r?l1
There is forum shopping when the elements of litis pendencia are
present or where a final judgment in one case will amount to res
judicata in another. They are as follows: (a) identity of parties, or at
least such parties that represent the same interests in both actions, (b)
identity of rights or causes of action, and (c) identity of relief
sought.9?r?l1
Under this test, we find that Atty. Gonzales committed forum shopping
when he filed Civil Case No. 00-99207 while Special Proceeding No.
99-95587 was pending.
Identity of Parties
An identity of parties exists in Special Proceeding No. 99-95587 and
Civil Case No. 00-99207. In both cases, the initiating parties are the
same, to wit: Carmen, Donato, Teodoro-Marcial, Jorge I. Teodoro,
Rowena Teodoro, Abigail Teodoro and Jorge T. Teodoro. They
represented the same interest in both cases. All claimed to be the
legitimate heirs of Manuela and co-owners of the land that she held in
trust for them.
Meanwhile, Anastacio, the oppositor in Special Proceeding No. 99-
95587, is also the sole defendant in Civil Case No. 00-99207. In both
cases, he espoused the same interest, as transferee-owner of the lot
allegedly held in trust by Manuela.
Identity of causes of action
The test of identity of causes of action does not depend on the form of
an action taken, but on whether the same evidence would support and
establish the former and the present causes of action.10 The heirs of
Manuela cannot avoid the application of res judicata by simply varying
the form of their action or by adopting a different method of presenting
it.11?r?l1
In Special Proceeding No. 99-95587, the trial court held that it had no
jurisdiction over the case, as Manuela left no properties at the time of
her death. The lot in Malate, Manila, which was the sole property that
the heirs of Manuela claim should be included in her estate, has been
sold to Rogelio and Anastacio when Manuela was still alive. The trial
court did not give credence to their claim that Manuela held the
property in trust for them.
Meanwhile, in Civil Case No. 00-99207, the trial court issued an order
granting Anastacios Motion for Demurrer to Evidence. It held that the
heirs of Manuela had been unable to prove their claim that Manuela
held the lot in trust for their benefit. Neither were they able to prove
that the sale of a portion of the lot to Anastacio was void.
In both cases, the issue of whether Manuela held the lot in Malate,
Manila in trust had to be decided by the trial court. The initiating
parties claim in the two cases depended on the existence of the trust
Manuela allegedly held in their favor. Thus, the evidence necessary to
prove their claim was the same.
Identity of relief sought
In Special Proceeding No. 99-95587, the heirs of Manuela prayed for
the issuance of letters of administration, the liquidation of Manuelas
estate, and its distribution among her legal heirs.
Meanwhile, in Civil Case No. 00-99207, the heirs of Manuela asked
for the annulment of the deed of absolute sale Manuela executed in
favor of Anastacio. They likewise asked the court to cancel the
resulting Transfer Certificate of Title issued in favor of the latter, and
to issue a new one in their names.
While the reliefs prayed for in the initiatory pleadings of the two cases
are different in form, a ruling in one case would have resolved the
other, and vice versa. To illustrate, had the lot been declared as part of
the estate of Manuela in Special Proceeding No. 99-95587, there
would have been no need for a decision annulling the sale in Civil
Case No. 00-99207. Conversely, had the sale in Civil Case No. 00-
99207 been annulled, then the property would go back to the hands of
the heirs of Manuela. Placing the property under administration, as
prayed for in Special Proceeding No. 99-95587, would have been
unnecessary.
Thus, the relief prayed for, the facts upon which it is based, and the
parties are substantially similar in the two cases. Since the elements of
litis pendentia and res judicata are present, Atty. Gonzales committed
forum shopping when he filed Civil Case No. 00-99207 without
indicating that Special Proceeding No. 99-95587 was still pending.
As Commissioner Dulay observed:cralawlibrary
Respondent was fully aware, since he was the counsel for both cases,
that he raised the issue of trust with respect to the Malate property in
the 1999 Letters of Administration case and that he was raising the
same similar issue of trust in the 2000 annulment case xxx
To advise his client therefore to execute the affidavit of non-forum
shopping for the second case (annulment case) and state that there is
no pending case involving the same or similar issue would constitute
misconduct which should be subject to disciplinary action. It was his
duty to advise his client properly, and his failure to do so, in fact his
deliberate assertion that there was no falsity in the affidavit is
indicative of a predisposition to take lightly his duty as a lawyer to
promote respect and obedience to the law.12?r?l1
"Lawyers should be reminded that their primary duty is to assist the
courts in the administration of justice. Any conduct that tends to delay,
impede or obstruct the administration of justice contravenes this
obligation."13?r?l1
The Court has repeatedly warned lawyers against resorting to forum
shopping since the practice clogs the Court dockets and can lead to
conflicting rulings.14 Willful and deliberate forum shopping has been
made punishable either as direct or indirect contempt of court in SC
Administrative Circular No. 04-94 dated April 1, 1994.15?r?l1
In engaging in forum shopping, Atty. Gonzales violated Canon 1 of
the Code of Professional Responsibility which directs lawyers to obey
the laws of the land and promote respect for the law and legal
processes. He also disregarded his duty to assist in the speedy and
efficient administration of justice,16 and the prohibition against unduly
delaying a case by misusing court processes.17?r?l1
To our mind, however, the supreme penalty of disbarment would be
very harsh in light of all the circumstances of this case. Neither is the
commissioners recommended penalty of suspension consistent with
prior rulings of the Court.
In Guanzon, Vda. de, etc. v. Judge Yrad, Jr., etc., et al.18 we severely
censured Renecio Espiritu, the counsel who filed a petition in the
Court of Appeals thirty-three days after a similar petition had been
filed with the Supreme Court. We also found him guilty of direct
contempt.
The present case finds favorable comparison with Guanzon. Like
Espiritu, Atty. Gonzales misused court processes in contravention of
the express rule against forum shopping. We held then that Espiritu
should be penalized and we imposed the penalty of censure the penalty
usually imposed for an isolated act of misconduct of a lesser
nature.19?r?l1
Lawyers are also censured for minor infractions against the lawyers
duty to the Court or the client.20 As earlier stated, Atty. Gonzales act of
forum shopping disregarded his duty to obey and promote respect for
the law and legal processes, as well as the prohibition against unduly
delaying a case by misusing court processes.21 It also violated his duty
as an officer of the court to assist in the speedy and efficient
administration of justice.22?r?l1
WHEREFORE, we find the basis for the complaint meritorious and
accordingly CENSURE Atty. Romeo S. Gonzales for resorting to
forum shopping. He is WARNED that any future violation of his
duties as a lawyer will be dealt with more severely. A copy of this
reprimand should be attached to Atty. Romeo S. Gonzales personal file
in the Office of the Bar Confidant.
SO ORDERED.
A.C. No. 4697 November 25, 2014
FLORENCIO A. SALADAGA, Complainant,
vs.
ATTY. ARTURO B. ASTORGA, Respondent.
x-----------------------x
A.C. No. 4728
FLORENCIO A. SALADAGA, Complainant,
vs.
ATTY. ARTURO B. ASTORGA, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Membership in the legal profession is a high personal privilege
burdened with conditions,1 including continuing fidelity to the law and
constant possession of moral fitness. Lawyers, as guardians of the law,
play a vital role in the preservation of society, and a consequent
obligation of lawyers is to maintain the highest standards of ethical
conduct.2 Failure to live by the standards of the legal profession and to
discharge the burden of the privilege conferred on one as a member of
the bar warrant the suspension or revocation of that privilege.
The Factual Antecedents
Complainant Florencio A. Saladaga and respondent Atty. Arturo B.
Astorga entered into a "Deed of Sale with Right to Repurchase" on
December 2, 1981 where respondent sold (with rightof repurchase) to
complainant a parcel of coconut land located at Barangay Bunga,
Baybay, Leyte covered by Transfer Certificate of Title (TCT) No. T-
662 for ₱15,000.00. Under the said deed, respondent represented that
he has "the perfect right to dispose as owner in fee simple" the subject
property and that the said property is "free from all liens and
encumbrances."3 The deed also provided that respondent, as vendor a
retro, had two years within which to repurchase the property, and if not
repurchased within the said period, "the parties shall renew [the]
instrument/agreement."4
Respondent failed to exercise his right of repurchase within the period
provided in the deed, and no renewal of the contract was made even
after complainant sent respondent a final demand dated May 10, 1984
for the latter to repurchase the property. Complainant remained in
peaceful possession of the property until December 1989 when he
received letters from the Rural Bank of Albuera (Leyte), Inc. (RBAI)
informing him that the property was mortgaged by respondent to
RBAI, that the bank had subsequently foreclosed on the property, and
that complainant should therefore vacate the property.5
Complainant was alarmed and made aninvestigation. He learned the
following:
(1) TCT No. T-662 was already cancelled by TCT No. T-3211 in the
name of Philippine National Bank (PNB) as early as November 17,
1972 after foreclosure proceedings;
(2) TCT No. T-3211 was cancelled by TCT No. T-7235 in the names
of respondent and his wife on January 4, 1982 pursuant to a deed of
sale dated March 27,1979 between PNB and respondent;
(3) Respondent mortgaged the subject property to RBAI on March 14,
1984, RBAI foreclosed on the property, and subsequently obtained
TCT No. TP-10635 on March 27, 1991.6 Complainant was
subsequently dispossessed of the property by RBAI.7
Aggrieved, complainant instituted a criminal complaint for estafa
against respondent with the Office of the Provincial Prosecutor of
Leyte, docketed as I.S. No. 95-144. The Provincial Prosecutor of Leyte
approved the Resolution8 dated April 21, 1995 in I.S. No. 95-144
finding that "[t]he facts of [the] case are sufficient to engender a well-
founded belief that Estafa x x x has been committed and that
respondent herein is probably guilty thereof."9 Accordingly, an
Information10 dated January 8,1996 was filed before the Municipal
Trial Court (MTC) of Baybay, Leyte, formally charging respondent
with the crime of estafa under Article 316, paragraphs 1 and 2 of the
Revised Penal Code,11 committed as follows:
On March 14, 1984, accused representing himself as the owner of a
parcel of land known as Lot No. 7661 of the Baybay Cadastre,
mortgaged the same to the Rural Bank of Albuera, Albuera, Leyte,
within the jurisdiction of this Honorable Court, knowing fully well that
the possessor and owner at that time was private complainant
Florencio Saladaga by virtue of a Pacto de Retro Sale which accused
executed in favor of private complainant on 2nd December, 1981,
without first redeeming/repurchasing the same. [P]rivate complainant
knowing of accused[’s] unlawful act only on or about the last week of
February, 1991 when the rural bank dispossessed him of the property,
the mortgage having been foreclosed, private complainant thereby
suffered damages and was prejudiced by accused[’s] unlawful
transaction and misrepresentation.
The aforementioned estafa case against respondent was docketed as
Criminal Case No. 3112-A.
Complainant likewise instituted the instant administrative cases
against respondent by filing before this Court an Affidavit-
Complaint12 dated January 28, 1997 and Supplemental
Complaint13 dated February 27, 1997, which were docketed as A.C.
No. 4697 and A.C. No. 4728, respectively. In both complaints,
complainant sought the disbarment of respondent.
The administrative cases were referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.14
In his Consolidated Answer15 dated August 16, 2003 filed before the
IBP, respondent denied that his agreement with complainant was a
pacto de retrosale. He claimed that it was an equitable mortgage and
that, if only complainant rendered an accounting of his benefits from
the produce of the land, the total amount would have exceeded
₱15,000.00.
Report and Recommendation of the Investigating Commissioner and
Resolution of the IBP Board of Governors
In a Report and Recommendation16 dated April 29, 2005, the
Investigating Commissioner of the IBP’s Commission on Bar
Discipline found that respondent was in bad faith when he dealt with
complainant and executed the "Deed of Sale with Right to
Repurchase" but later on claimed that the agreement was one of
equitable mortgage. Respondent was also guilty of deceit or fraud
when he represented in the "Deed of Sale with Right to Repurchase"
dated December 2, 1981 that the property was covered by TCT No. T-
662, even giving complainant the owner’s copy of the said certificate
of title, when the said TCT had already been cancelled on November
17, 1972 by TCT No. T-3211 in the name of Philippine National Bank
(PNB). Respondent made matters even worse, when he had TCT No.
T-3211 cancelled with the issuance of TCT No. T-7235 under his and
his wife’s name on January 4,1982 without informing complainant.
This was compounded by respondent’s subsequent mortgage of the
property to RBAI, which led to the acquisition of the property by
RBAI and the dispossession thereof of complainant. Thus, the
Investigating Commissioner recommended that respondent be (1)
suspended from the practice of law for one year, with warning that a
similar misdeed in the future shall be dealt with more severity, and (2)
ordered to return the sum of ₱15,000.00, the amount he received as
consideration for the pacto de retrosale, with interest at the legal rate.
Considering respondent’s "commission of unlawful acts, especially
crimes involving moral turpitude, actsof dishonesty, grossly immoral
conduct and deceit," the IBP Board of Governors adopted and
approved the Investigating Commissioner’s Report and
Recommendation with modification as follows: respondent is(1)
suspended from the practice of law for two years, with warning that a
similar misdeed in the future shall be dealt with more severity, and (2)
ordered to return the sum of ₱15,000.00 received in consideration of
the pacto de retrosale, with legal interest.17
The Court’s Ruling
The Court agrees with the recommendation of the IBP Board of
Governors to suspend respondent from the practice of law for two
years, but it refrains from ordering respondent to return the ₱15,000.00
consideration, plus interest.
Respondent does not deny executing the "Deed of Sale with Right to
Repurchase" dated December 2, 1981 in favor of complainant.
However, respondent insists that the deed is not one of sale with pacto
de retro, but one of equitable mortgage. Thus, respondent argues that
he still had the legal right to mortgage the subject property to other
persons. Respondent additionally asserts that complainant should
render an accounting of the produce the latter had collected from the
said property, which would already exceed the ₱15,000.00
consideration stated in the deed.
There is no merit in respondent’s defense.
Regardless of whether the written contract between respondent and
complainant is actually one of sale with pacto de retroor of equitable
mortgage, respondent’s actuations in his transaction with complainant,
as well as in the present administrative cases, clearly show a disregard
for the highest standards of legal proficiency, morality, honesty,
integrity, and fair dealing required from lawyers, for which respondent
should be held administratively liable.
When respondent was admitted to the legal profession, he took an oath
where he undertook to "obey the laws," "do no falsehood," and
"conduct [him]self as a lawyer according to the best of [his]
knowledge and discretion."18 He gravely violated his oath.
The Investigating Commissioner correctly found, and the IBP Board of
Governors rightly agreed, that respondent caused the ambiguity or
vagueness in the "Deed of Sale with Right to Repurchase" as he was
the one who prepared or drafted the said instrument. Respondent could
have simply denominated the instrument as a deed of mortgage and
referred to himself and complainant as "mortgagor" and "mortgagee,"
respectively, rather than as "vendor a retro" and "vendee a retro." If
only respondent had been more circumspect and careful in the drafting
and preparation of the deed, then the controversy between him and
complainant could havebeen avoided or, at the very least, easily
resolved. His imprecise and misleading wording of the said deed on its
face betrayed lack oflegal competence on his part. He thereby fell
short of his oath to "conduct [him]self as a lawyer according to the
best of [his] knowledge and discretion."
More significantly, respondent transgressed the laws and the
fundamental tenet of human relations asembodied in Article 19 of the
Civil Code:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Respondent, as owner of the property, had the right to mortgage it to
complainant but, as a lawyer, he should have seen to it that his
agreement with complainant is embodied in an instrument that clearly
expresses the intent of the contracting parties. A lawyer who drafts a
contract must see to it that the agreement faithfully and clearly reflects
the intention of the contracting parties. Otherwise, the respective rights
and obligations of the contracting parties will be uncertain, which
opens the door to legal disputes between the said parties. Indeed, the
uncertainty caused by respondent’s poor formulation of the "Deed of
Sale with Right to Repurchase" was a significant factor in the legal
controversy between respondent and complainant. Such poor
formulation reflects at the very least negatively on the legal
competence of respondent.
Under Section 63 of the Land Registration Act,19 the law in effect at
the time the PNB acquired the subject property and obtained TCT No.
T-3211 in its name in 1972, where a decree in favor of a purchaser
who acquires mortgaged property in foreclosure proceedings becomes
final, such purchaser becomes entitled to the issuance of a new
certificate of title in his name and a memorandum thereof shall be
"indorsed upon the mortgagor’s original certificate."20 TCT No. T-662,
which respondent gave complainant when they entered into the "Deed
of Sale with Right to Repurchase" dated December 2, 1981, does not
bearsuch memorandum but only a memorandum on the mortgage of
the property to PNB in 1963 and the subsequent amendment of the
mortgage.
Respondent dealt with complainant with bad faith, falsehood, and
deceit when he entered into the "Deed of Sale with Right to
Repurchase" dated December 2, 1981 with the latter. He made it
appear that the property was covered by TCT No. T-662 under his
name, even giving complainant the owner’s copy of the said certificate
oftitle, when the truth is that the said TCT had already been cancelled
some nine years earlier by TCT No. T-3211 in the name of PNB. He
did not evencare to correct the wrong statement in the deed when he
was subsequently issued a new copy of TCT No. T-7235 on January 4,
1982,21 or barely a month after the execution of the said deed. All told,
respondent clearly committed an act of gross dishonesty and deceit
against complainant.
Canon 1 and Rule 1.01 of the Codeof Professional Responsibility
provide:
CANON 1 – A lawyer shall uphold the constitution, obey the laws of
the land and promote respect for law and legal processes.
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct. Under Canon 1, a lawyer is not only mandated to
personally obey the laws and the legal processes, he is moreover
expected to inspire respect and obedience thereto. On the other hand,
Rule 1.01 states the norm of conduct that is expected of all lawyers.22
Any act or omission that is contrary to, prohibited or unauthorized by,
in defiance of, disobedient to, or disregards the law is "unlawful."
"Unlawful" conduct does not necessarily imply the element of
criminality although the concept is broad enough to include such
element.23
To be "dishonest" means the disposition to lie, cheat, deceive, defraud
or betray; be untrustworthy; lacking inintegrity, honesty, probity,
integrity in principle, fairness and straightforwardness. On the other
hand, conduct that is "deceitful" means as follows:
[Having] the proclivity for fraudulent and deceptive misrepresentation,
artifice or device that is used upon another who is ignorant of the true
facts, to the prejudice and damage of the party imposed upon. In order
to be deceitful, the person must either have knowledge of the falsity or
acted in reckless and conscious ignorance thereof, especially if the
parties are not on equal terms, and was done with the intent that the
aggrieved party act thereon, and the latter indeed acted in reliance of
the false statement or deed in the manner contemplated to his
injury.24 The actions of respondent in connection with the execution of
the "Deed of Sale with Right to Repurchase" clearly fall within the
concept of unlawful, dishonest, and deceitful conduct. They violate
Article 19 of the Civil Code. They show a disregard for Section 63 of
the Land Registration Act. They also reflect bad faith, dishonesty, and
deceit on respondent’s part. Thus, respondent deserves to be
sanctioned.
Respondent’s breach of his oath, violation of the laws, lack of good
faith, and dishonesty are compounded by his gross disregard of this
Court’s directives, as well as the orders of the IBP’s Investigating
Commissioner (who was acting as an agent of this Court pursuant to
the Court’s referral of these cases to the IBP for investigation, report
and recommendation), which caused delay in the resolution of these
administrative cases.
In particular, the Court required respondent to comment on
complainant’s Affidavit-Complaint in A.C. No. 4697 and
Supplemental Complaint in A.C. No. 4728 on March 12, 1997 and
June 25, 1997, respectively.25 While he requested for several
extensions of time within which to submit his comment, no such
comment was submitted prompting the Court to require him in a
Resolution dated February 4,1998 to (1) show cause why he should not
be disciplinarily dealt with or held in contempt for such failure, and (2)
submit the consolidated comment.26 Respondent neither showed cause
why he should not be disciplinarily dealt with or held in contempt for
such failure, nor submitted the consolidated comment.
When these cases were referred to the IBP and during the proceedings
before the IBP’s Investigating Commissioner, respondent was again
required several times to submit his consolidated answer. He only
complied on August 28, 2003, or more than six years after this Court
originally required him to do so. The Investigating Commissioner also
directed the parties to submit their respective position papers. Despite
having been given several opportunities to submit the same,
respondent did not file any position paper.27
Respondent’s disregard of the directives of this Court and of the
Investigating Commissioner, which caused undue delay in these
administrative cases, contravenes the following provisions of the Code
of Professional Responsibility:
CANON 11 – A lawyer shall observe and maintain the respect due to
the courts and to judicial officers and should insist on similar conduct
by others.
xxxx
CANON 12 – A lawyer shall exert every effort and consider it his duty
to assist in the speedy and efficient administration of justice.
xxxx
Rule 12.03 – A lawyer shall not, after obtaining extensions of time to
file pleadings, memoranda or briefs, let the period lapse without
submitting the same or offering an explanation for his failure to do so.
Rule 12.04 – A lawyer shall not unduly delay a case, impede the
execution of a judgment or misuse court processes.
Respondent’s infractions are aggravated by the fact that he has already
been imposed a disciplinary sanction before.1âwphi1 In Nuñez v. Atty.
Astorga,28 respondent was held liable for conduct unbecoming an
attorney for which he was fined ₱2,000.00.
Given the foregoing, the suspension of respondent from the practice of
law for two years, as recommended by the IBP Board of Governors, is
proper.
The Court, however, will not adopt the recommendation of the IBP to
order respondent to return the sum of ₱15,000.00 he received from
complainant under the "Deed of Sale with Right to Repurchase." This
is a civil liability best determined and awarded in a civil case rather
than the present administrative cases.
In Roa v. Moreno,29 the Court pronounced that "[i]n disciplinary
proceedings against lawyers, the only issue is whether the officer of
the court is still fit to be allowed to continue as a member of the Bar.
Our only concern is the determination of respondent’s administrative
liability. Our findings have no material bearing on other judicial action
which the parties may choose to file against each other."While the
respondent lawyer’s wrongful actuations may give rise at the same
time to criminal, civil, and administrative liabilities, each must be
determined in the appropriate case; and every case must be resolved in
accordance with the facts and the law applicable and the quantum of
proof required in each. Section 5,30 in relation to Sections 131 and
2,32 Rule 133 of the Rules of Court states that in administrative cases,
such as the ones atbar, only substantial evidence is required, not proof
beyond reasonable doubt as in criminal cases, or preponderance of
evidence asin civil cases. Substantial evidence is that amount of
relevant evidence which a reasonable mind might accept as adequate
to justify a conclusion.33
The Court notes that based on the same factual antecedents as the
present administrative cases, complainant instituted a criminal case for
estafa against respondent, docketed as Criminal Case No. 3112-A,
before the MTC. When a criminal action is instituted, the civil action
for the recovery of civil liability arising from the offense charged shall
be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action.34 Unless the
complainant waived the civil action, reserved the right to institute it
separately, or instituted the civil action prior to the criminal action,
then his civil action for the recovery of civil liability arising from the
estafa committed by respondent is deemed instituted with Criminal
Case No. 3112-A. The civil liability that complainant may recover in
Criminal Case No. 3112-A includes restitution; reparation of the
damage caused him; and/or indemnification for consequential
damages,35 which may already cover the ₱15,000.00 consideration
complainant had paid for the subject property.
WHEREFORE, respondent is hereby found GUILTY of the following:
breach of the Lawyer’s Oath; unlawful, dishonest, and deceitful
conduct; and disrespect for the Court and causing undue delay of these
cases, for which he is SUSPENDED from the practice of law for a
period of two (2) years, reckoned from receipt of this Decision, with
WARNING that a similar misconduct in the future shall be dealt with
more severely.
Let a copy of this Decision be furnished the Office of the Bar
Confidant and the Integrated Bar of the Philippines for their
information and guidance. The Court Administrator is directed to
circulate this Decision to all courts in the country.
SO ORDERED.
EN BANC
A.C. No. 10579, December 10, 2014
ERLINDA FOSTER, Complainant, v. ATTY. JAIME V.
AGTANG, Respondent.
DECISION
PER CURIAM:
1
This refers to the Resolution of the Board of Governors (BOG),
Integrated Bar of the Philippines (IBP), dated March 23, 2014,
affirming with modification the findings of the Investigating
Commissioner, who recommended the suspension of respondent Atty.
Jaime V. Agtang (respondent) from the practice of law for one (1) year
for ethical impropriety and ordered the payment of his unpaid
obligations to complainant.
From the records, it appears that the IBP, thru its Commission on Bar
Discipline (CBD), received a complaint2, dated May 31, 2011, filed by
Erlinda Foster (complainant) against respondent for “unlawful,
dishonest, immoral and deceitful”3 acts as a lawyer.
In its July 1, 2011 Order,4 the IBP-CBD directed respondent to file his
Answer within 15 days from receipt of the order. Respondent failed to
do so and complainant sent a query as to the status of her complaint.
On October 10, 2011, the Investigating Commissioner issued the
Order5 setting the case for mandatory conference/hearing on
November 16, 2011. It was only on November 11, 2011, or five (5)
days before the scheduled conference when respondent filed his
verified Answer.6
During the conference, only the complainant together with her
husband appeared. She submitted a set of documents contained in a
folder, copies of which were furnished the respondent. The
Investigating Commissioner7 indicated that the said documents would
be reviewed and the parties would be informed if there was a need for
clarificatory questioning; otherwise, the case would be submitted for
resolution based on the documents on file. The Minutes8 of the
mandatory conference showed that respondent arrived at 11:10 o’clock
in the morning or after the proceeding was terminated.
On December 12, 2011, the complainant filed her Reply to
respondent’s Answer.
On April 18, 2012, complainant submitted copies of the January 24,
2012 Decisions9 of the Municipal Trial Court in Small Claims Case
Nos. 2011-0077 and 2011-0079, ordering respondent [defendant
therein] to pay complainant and her husband the sum of P100,000.00
and P22,000.00, respectively, with interest at the rate of 12% per
annum from December 8, 2011 until fully paid, plus cost of suit.10
Complainant’s Position
From the records, it appears that complainant was referred to
respondent in connection with her legal problem regarding a deed of
absolute sale she entered into with Tierra Realty, which respondent
had notarized. After their discussion, complainant agreed to engage his
legal services for the filing of the appropriate case in court, for which
they signed a contract. Complainant paid respondent P20,000.00 as
acceptance fee and P5,000.00 for incidental expenses.11
On September 28, 2009, respondent wrote a letter12 to Tropical Villas
Subdivision in relation to the legal problem referred by complainant.
He then visited the latter in her home and asked for a loan of
P100,000.00, payable in sixty (60) days, for the repair of his car.
Complainant, having trust and confidence on respondent being her
lawyer, agreed to lend the amount without interest. A promissory
note13 evidenced the loan.

In November 2009, complainant became aware that Tierra Realty was
attempting to transfer to its name a lot she had previously purchased.
She referred the matter to respondent who recommended the
immediate filing of a case for reformation of contract with damages.
On November 8, 2009, respondent requested and thereafter received
from complainant the amount of P150,000.00, as filing fee.14 When
asked about the exorbitant amount, respondent cited the high value of
the land and the sheriffs’ travel expenses and accommodations in
Manila, for the service of the summons to the defendant corporation.
Later, complainant confirmed that the fees paid for the filing of Civil
Case No. 14791-65, entitled Erlinda Foster v. Tierra Realty and
Development Corporation, only amounted to P22,410.00 per trial
court records.15
During a conversation with the Registrar of Deeds, complainant also
discovered that respondent was the one who notarized the document
being questioned in the civil case she filed. When asked about this,
respondent merely replied that he would take a collaborating counsel
to handle complainant’s case. Upon reading a copy of the complaint
filed by respondent with the trial court, complainant noticed that: 1]
the major differences in the documents issued by Tierra Realty were
not alleged; 2] the contract to buy and sell and the deed of conditional
sale were not attached thereto; 3] the complaint discussed the method
of payment which was not the point of contention in the case; and 4]
the very anomalies she complained of were not mentioned.
Respondent, however, assured her that those matters could be brought
up during the hearings.
On April 23, 2010, respondent wrote to complainant, requesting that
the latter extend to him the amount of P70,000.00 or P50,000.00 “in
the moment of urgency or emergency.”16 Complainant obliged the
request and gave respondent the sum of P22,000.00.
On August 31, 2010, respondent came to complainant’s house and
demanded the sum of P50,000.00, purportedly to be given to the judge
in exchange for a favorable ruling. Complainant expressed her
misgivings on this proposition but she eventually gave the amount of
P25,000.00 which was covered by a receipt,17 stating that “it is
understood that the balance of P25,000.00 shall be paid later after
favorable judgment for plaintiff Erlinda Foster.” On November 2,
2010, respondent insisted that the remaining amount be given by
complainant prior to the next hearing of the case, because the judge
was allegedly asking for the balance. Yet again, complainant handed to
respondent the amount of P25,000.00.18
On September 29, 2010, complainant’s case was dismissed. Not
having been notified by respondent, complainant learned of the
dismissal on December 14, 2010, when she personally checked the
status of the case with the court. She went to the office of respondent,
but he was not there. Instead, one of the office staff gave her a copy of
the order of dismissal.
On December 15, 2010, respondent visited complainant and gave her a
copy of the motion for reconsideration. On January 15, 2011,
complainant went to see respondent and requested him to prepare a
reply to the comment filed by Tierra Realty on the motion for
reconsideration; to include additional facts because the Land
Registration Authority would not accept the documents unless these
were amended; and to make the additional averment that the defendant
was using false documents.
On January 18, 2011, respondent’s driver delivered to complainant a
copy of the reply with a message from him that the matters she
requested to be included were mentioned therein. Upon reading the
same, however, complainant discovered that these matters were not so
included. On the same occasion, the driver also asked for P2,500.00 on
respondent’s directive for the reimbursement of the value of a bottle of
wine given to the judge as a present. Complainant was also told that
oral arguments on the case had been set the following month.19
On February 2, 2011, complainant decided to terminate the services of
respondent as her counsel and wrote him a letter of termination,20 after
her friend gave her copies of documents showing that respondent had
been acquainted with Tierra Realty since December 2007.
Subsequently, complainant wrote to respondent, requesting him to pay
her the amounts he received from her less the contract fee and the
actual cost of the filing fees. Respondent never replied.
Respondent’s Position
In his Answer,21 respondent alleged that he was 72 years old and had
been engaged in the practice of law since March 1972, and was
President of the IBP Ilocos Norte Chapter from 1998 to 1999. He
admitted the fact that he notarized the Deed of Absolute Sale subject
of complainant’s case, but he qualified that he was not paid his notarial
fees therefor. He likewise admitted acting as counsel for complainant
for which he claimed to have received P10,000.00 as acceptance fee
and P5,000.00 for incidental fees. Anent the loan of P100,000.00,
respondent averred that it was complainant, at the behest of her
husband, who willingly offered the amount to him for his patience in
visiting them at home and for his services. The transaction was
declared as “no loan” and he was told not to worry about its payment.
As regards the amount of P150,000.00 he received for filing fees,
respondent claimed that the said amount was suggested by the
complainant herself who was persistent in covering the incidental
expenses in the handling of the case. He denied having said that the
sheriffs of the court would need the money for their hotel
accommodations. Complainant’s husband approved of the amount. In
the same vein, respondent denied having asked for a loan of
P50,000.00 and having received P22,000.00 from complainant. He
also denied having told her that the case would be discussed with the
judge who would rule in their favor at the very next hearing. Instead, it
was complainant who was bothered by the possibility that the other
party would befriend the judge. He never said that he would personally
present a bottle of wine to the judge.
Further, respondent belied the Registrar’s comment as to his
representation of Tierra Realty in the past. Respondent saw nothing
wrong in this situation since complainant was fully aware that another
counsel was assisting him in the handling of cases. Having been fully
informed of the nature of her cause of action and the consequences of
the suit, complainant was aware of the applicable law on reformation
of contracts. Finally, by way of counterclaim, respondent demanded
just compensation for the services he had rendered in other cases for
the complainant.
Reply of Complainant
In her Reply,22 complainant mainly countered respondent’s defenses
by making reference to the receipts in her possession, all evidencing
that respondent accepted the amounts mentioned in the complaint.
Complainant also emphasized that respondent and Tierra Realty had
relations long before she met him. While respondent was employed as
Provincial Legal Officer of the Provincial Government of Ilocos Norte,
he was involved in the preparation of several documents involving
Flying V, an oil company owned by Ernest Villavicencio, who
likewise owned Tierra Realty. Complainant insisted that the amount of
P100,000.00 she extended to respondent was never considered as “no
loan.”
On June 26, 2012, complainant furnished the Investigating
Commissioner copies of the Resolution, dated June 20, 2012, issued
by the Office of the City Prosecutor of Laoag City, finding probable
cause against respondent for estafa.23
Findings and Recommendation of the IBP
In its July 3, 2012 Report and Recommendation,24 the Investigating
Commissioner found respondent guilty of ethical impropriety and
recommended his suspension from the practice of law for one (1) year.
In its September 28, 2013 Resolution, the IBP-BOG adopted and
approved with modification the recommendation of suspension by the
Investigating Commissioner and ordered respondent to return to
complainant: 1) his loan of P122,000.00; and 2) the balance of the
filing fee amounting to P127,590.00.
Respondent received a copy of the said resolution on January 16, 2014
to which he filed a motion for reconsideration.25 Complainant filed her
opposition thereto, informing the IBP-BOG that an information
charging respondent for estafa had already been filed in court and that
a corresponding order for his arrest had been issued.26
In its March 23, 2014 Resolution, the IBP-BOG denied respondent’s
motion for reconsideration but modified the penalty of his suspension
from the practice of law by reducing it from one (1) year to three (3)
months. Respondent was likewise ordered to return the balance of the
filing fee received from complainant amounting to P127,590.00.
No petition for review was filed with the Court.
The only issue in this case is whether respondent violated the Code of
Professional Responsibility (CPR).
The Court’s Ruling
The Court sustains the findings and recommendation of the
Investigating Commissioner with respect to respondent’s violation of
Rules 1 and 16 of the CPR. The Court, however, modifies the
conclusion on his alleged violation of Rule 15, on representing
conflicting interests. The Court also differs on the penalty.
Rule 1.0, Canon 1 of the CPR, provides that “[a] lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct.” It is
well-established that a lawyer’s conduct is “not confined to the
performance of his professional duties. A lawyer may be disciplined
for misconduct committed either in his professional or private
capacity. The test is whether his conduct shows him to be wanting in
moral character, honesty, probity, and good demeanor, or whether it
renders him unworthy to continue as an officer of the court.”27
In this case, respondent is guilty of engaging in dishonest and deceitful
conduct, both in his professional and private capacity. As a lawyer, he
clearly misled complainant into believing that the filing fees for her
case were worth more than the prescribed amount in the rules, due to
feigned reasons such as the high value of the land involved and the
extra expenses to be incurred by court employees. In other words, he
resorted to overpricing, an act customarily related to depravity and
dishonesty. He demanded the amount of P150,000.00 as filing fee,
when in truth, the same amounted only to P22,410.00. His defense that
it was complainant who suggested that amount deserves no iota of
credence. For one, it is highly improbable that complainant, who was
then plagued with the rigors of litigation, would propose such amount
that would further burden her financial resources. Assuming that the
complainant was more than willing to shell out an exorbitant amount
just to initiate her complaint with the trial court, still, respondent
should not have accepted the excessive amount. As a lawyer, he is not
only expected to be knowledgeable in the matter of filing fees, but he
is likewise duty-bound to disclose to his client the actual amount due,
consistent with the values of honesty and good faith expected of all
members of the legal profession.
Moreover, the “fiduciary nature of the relationship between the
counsel and his client imposes on the lawyer the duty to account for
the money or property collected or received for or from his
client.”28 Money entrusted to a lawyer for a specific purpose but not
used for the purpose should be immediately returned. A lawyer’s administration of justice. In no way should a lawyer indulge in any act
failure to return upon demand the funds held by him on behalf of his that would damage the image of judges, lest the public’s perception of
client gives rise to the presumption that he has appropriated the same the dispensation of justice be overshadowed by iniquitous doubts. The
for his own use in violation of the trust reposed in him by his client. denial of respondent and his claim that the amount was given
Such act is a gross violation of general morality as well as of gratuitously would not excuse him from any liability. The absence of
professional ethics. It impairs public confidence in the legal profession proof that the said amount was indeed used as a bribe is of no moment.
and deserves punishment.29 To tolerate respondent’s actuations would seriously erode the public’s
trust in the courts.
It is clear that respondent failed to fulfill this duty. As pointed out, he
received various amounts from complainant but he could not account
for all of them. Worse, he could not deny the authenticity of the
As it turned out, complainant’s case was dismissed as early as
receipts presented by complainant. Upon demand, he failed to return
September 29, 2010. At this juncture, respondent proved himself to be
the excess money from the alleged filing fees and other expenses. His
negligent in his duty as he failed to inform his client of the status of
possession gives rise to the presumption that he has misappropriated it
the case, and left the client to personally inquire with the court. Surely,
for his own use to the prejudice of, and in violation of the trust reposed
respondent was not only guilty of misconduct but was also remiss in
in him by, the client.30 When a lawyer receives money from the client
his duty to his client.
for a particular purpose, the lawyer is bound to render an accounting to
the client showing that the money was spent for the intended purpose.
Respondent’s unbecoming conduct towards complainant did not stop
Consequently, if the lawyer does not use the money for the intended
here. Records reveal that he likewise violated Rule 16.04, Canon 16 of
purpose, the lawyer must immediately return the money to the client.31
the CPR, which states that “[a] lawyer shall not borrow money from
his client unless the client’s interests are fully protected by the nature
Somewhat showing a propensity to demand excessive and unwarranted
of the case or by independent advice. Neither shall a lawyer lend
amounts from his client, respondent displayed a reprehensible conduct
money to a client except, when in the interest of justice, he has to
when he asked for the amount of P50,000.00 as “representation
advance necessary expenses in a legal matter he is handling for the
expenses” allegedly for the benefit of the judge handling the case, in
client.” In his private capacity, he requested from his client, not just
exchange for a favorable decision. Respondent himself signed a receipt
one, but two loans of considerable amounts. The first time, he visited
showing that he initially took the amount of P 25,000.00 and, worse,
his client in her home and borrowed P100,000.00 for the repair of his
he subsequently demanded and received the other half of the amount at
car; and the next time, he implored her to extend to him a loan of
the time the case had already been dismissed. Undoubtedly, this act is
P70,000.00 or P50,000.00 “in the moment of urgency or emergency”
tantamount to gross misconduct that necessarily warrants the supreme
but was only given P22,000.00 by complainant. These transactions
penalty of disbarment. The act of demanding a sum of money from his
were evidenced by promissory notes and receipts, the authenticity of
client, purportedly to be used as a bribe to ensure a positive outcome
which was never questioned by respondent. These acts were
of a case, is not only an abuse of his client’s trust but an overt act of
committed by respondent in his private capacity, seemingly unrelated
undermining the trust and faith of the public in the legal profession and
to his relationship with complainant, but were indubitably acquiesced
the entire Judiciary. This is the height of indecency. As officers of the
to by complainant because of the trust and confidence reposed in him
court, lawyers owe their utmost fidelity to public service and the
as a lawyer. Nowhere in the records, particularly in the defenses raised
by respondent, was it implied that these loans fell within the
exceptions provided by the rules. The loans of P100,000.00 and
P22,000.00 were surely not protected by the nature of the case or by
independent advice. Respondent’s assertion that the amounts were
given to him out of the liberality of complainant and were, thus,
considered as “no loan,” does not justify his inappropriate behavior.
The acts of requesting and receiving money as loans from his client
and thereafter failing to pay the same are indicative of his lack of
integrity and sense of fair dealing. Up to the present, respondent has
not yet paid his obligations to complainant.
Time and again, the Court has consistently held that deliberate failure
to pay just debts constitutes gross misconduct, for which a lawyer may
be sanctioned with suspension from the practice of law. Lawyers are
instruments for the administration of justice and vanguards of our legal
system. They are expected to maintain not only legal proficiency, but
also a high standard of morality, honesty, integrity and fair dealing so
that the people’s faith and confidence in the judicial system is ensured.
They must, at all times, faithfully perform their duties to society, to the
bar, the courts and their clients, which include prompt payment of
financial obligations.32
Verily, when the Code or the Rules speaks of “conduct” or
“misconduct,” the reference is not confined to one’s behavior
exhibited in connection with the performance of the lawyer’s
professional duties, but also covers any misconduct which, albeit
unrelated to the actual practice of his profession, would show him to
be unfit for the office and unworthy of the privileges which his license
and the law vest him with. Unfortunately, respondent must be found
guilty of misconduct on both scores.
With respect to respondent’s alleged representation of conflicting
interests, the Court finds it proper to modify the findings of the
Investigating Commissioner who concluded that complainant
presented insufficient evidence of respondent’s “lawyering” for the
opposing party, Tierra Realty.
Rule 15.03, Canon 15 of the CPR, provides that “[a] lawyer shall not
represent conflicting interest except by written consent of all
concerned given after a full disclosure of the facts.” The relationship
between a lawyer and his/her client should ideally be imbued with the
highest level of trust and confidence. This is the standard of
confidentiality that must prevail to promote a full disclosure of the
client’s most confidential information to his/her lawyer for an
unhampered exchange of information between them. Needless to state,
a client can only entrust confidential information to his/her lawyer
based on an expectation from the lawyer of utmost secrecy and
discretion; the lawyer, for his part, is duty-bound to observe candor,
fairness and loyalty in all dealings and transactions with the client. Part
of the lawyer’s duty in this regard is to avoid representing conflicting
interests.”33 Thus, even if lucrative fees offered by prospective clients
are at stake, a lawyer must decline professional employment if the
same would trigger the violation of the prohibition against conflict of
interest. The only exception provided in the rules is a written consent
from all the parties after full disclosure.
The Court deviates from the findings of the IBP. There is substantial
evidence to hold respondent liable for representing conflicting interests
in handling the case of complainant against Tierra Realty, a
corporation to which he had rendered services in the past. The Court
cannot ignore the fact that respondent admitted to having notarized the
deed of sale, which was the very document being questioned in
complainant’s case. While the Investigating Commissioner found that
the complaint in Civil Case No. 14791-65 did not question the validity
of the said contract, and that only the intentions of the parties as to
some provisions thereof were challenged, the Court still finds that the
purpose for which the proscription was made exists. The Court cannot
brush aside the dissatisfied observations of the complainant as to the
allegations lacking in the complaint against Tierra Realty and the clear
admission of respondent that he was the one who notarized the
assailed document. Regardless of whether it was the validity of the
entire document or the intention of the parties as to some of its
provisions raised, respondent fell short of prudence in action when he
accepted complainant’s case, knowing fully that he was involved in
the execution of the very transaction under question. Neither his
unpaid notarial fees nor the participation of a collaborating counsel
would excuse him from such indiscretion. It is apparent that
respondent was retained by clients who had close dealings with each
other. More significantly, there is no record of any written consent
from any of the parties involved.
The representation of conflicting interests is prohibited “not only
because the relation of attorney and client is one of trust and
confidence of the highest degree, but also because of the principles of
public policy and good taste. An attorney has the duty to deserve the
fullest confidence of his client and represent him with undivided
loyalty. Once this confidence is abused or violated the entire
profession suffers.”34
Penalties and Pecuniary Liabilities
A member of the Bar may be penalized, even disbarred or suspended
from his office as an attorney, for violation of the lawyer’s oath and/or
for breach of the ethics of the legal profession as embodied in the
CPR.35 For the practice of law is “a profession, a form of public trust,
the performance of which is entrusted to those who are qualified and
who possess good moral character.”36 The appropriate penalty for an
errant lawyer depends on the exercise of sound judicial discretion
based on the surrounding facts.37
Under Section 27, Rule 138 of the Revised Rules of Court, a member
of the Bar may be disbarred or suspended on any of the following
grounds: (1) deceit; (2) malpractice or other gross misconduct in
office; (3) grossly immoral conduct; (4) conviction of a crime
involving moral turpitude; (5) violation of the lawyer's oath; (6) willful
disobedience of any lawful order of a superior court; and (7) willful
appearance as an attorney for a party without authority. A lawyer may
be disbarred or suspended for misconduct, whether in his professional
or private capacity, which shows him to be wanting in moral character,
honesty, probity and good demeanor, or unworthy to continue as an
officer of the court.
Here, respondent demonstrated not just a negligent disregard of his
duties as a lawyer but a wanton betrayal of the trust of his client and,
in general, the public. Accordingly, the Court finds that the suspension
for three (3) months recommended by the IBP-BOG is not sufficient
punishment for the unacceptable acts and omissions of respondent.
The acts of the respondent constitute malpractice and gross
misconduct in his office as attorney. His incompetence and appalling
indifference to his duty to his client, the courts and society render him
unfit to continue discharging the trust reposed in him as a member of
the Bar.
For taking advantage of the unfortunate situation of the complainant,
for engaging in dishonest and deceitful conduct, for maligning the
judge and the Judiciary, for undermining the trust and faith of the
public in the legal profession and the entire judiciary, and for
representing conflicting interests, respondent deserves no less than the
penalty of disbarment.38
Notably, the Court cannot order respondent to return the money he
borrowed from complainant in his private capacity. In Tria-Samonte v.
Obias,39 the Court held that it cannot order the lawyer to return money
to complainant if he or she acted in a private capacity because its
findings in administrative cases have no bearing on liabilities which
have no intrinsic link to the lawyer’s professional engagement. In
disciplinary proceedings against lawyers, the only issue is whether the
officer of the court is still fit to be allowed to continue as a member of
the Bar. The only concern of the Court is the determination of
respondent’s administrative liability. Its findings have no material
bearing on other judicial actions which the parties may choose against
each other.
To rule otherwise would in effect deprive respondent of his right to members who, by their misconduct, have proven themselves no longer
appeal since administrative cases are filed directly with the Court. worthy to be entrusted with the duties and responsibilities of an
Furthermore, the quantum of evidence required in civil cases is attorney.”44
different from the quantum of evidence required in administrative
cases. In civil cases, preponderance of evidence is required. WHEREFORE, finding the respondent, Atty. Jaime V.
Preponderance of evidence is “a phrase which, in the last analysis, Agtang, GUILTY of gross misconduct in violation of the Code of
means probability of the truth. It is evidence which is more convincing Professional Responsibility, the Court hereby DISBARS him from the
to the court as worthier of belief than that which is offered in practice of law and ORDERS him to pay the complainant, Erlinda
opposition thereto.”40 In administrative cases, only substantial Foster, the amounts of P127,590.00, P50,000.00 and P2,500.00.
evidence is needed. Substantial evidence, which is more than a mere
scintilla but is such relevant evidence as a reasonable mind might Let a copy of this Decision be sent to the Office of the Bar Confidant,
accept as adequate to support a conclusion, would suffice to hold one the Integrated Bar of the Philippines and the Office of the Court
administratively liable.41 Furthermore, the Court has to consider the Administrator to be circulated to all courts.
prescriptive period applicable to civil cases in contrast to
administrative cases which are, as a rule, imprescriptible.42 SO ORDERED.
Sereno, (Chief Justice), Carpio, Velasco, Jr., Leonardo-De Castro,
Thus, the IBP-BOG was correct in ordering respondent to return the
Del Castillo, Villarama, Jr., Mendoza, Reyes, Perlas-Bernabe,
amount of P127,590.00 representing the balance of the filing fees he
and Leonen, JJ., concur.
received from complainant, as this was intimately related to the
Brion, J., on leave.
lawyer-client relationship between them. Similar to this is the amount
Peralta, J., no part.
of P50,000.00 which respondent received from complainant, as
Bersamin, Perez, and Jardeleza, JJ., on official leave.
representation expenses for the handling of the civil case and for the
purported purchase of a bottle of wine for the judge. These were
connected to his professional relationship with the complainant. While
respondent’s deplorable act of requesting the said amount for the
benefit of the judge is stained with mendacity, respondent should be
ordered to return the same as it was borne out of their professional
relationship. As to his other obligations, respondent was already
adjudged as liable for the personal loans he contracted with
complainant, per the small claims cases filed against him.

All told, in the exercise of its disciplinary powers, “the Court merely
calls upon a member of the Bar to account for his actuations as an
officer of the Court with the end in view of preserving the purity of the
legal profession.”43 The Court likewise aims to ensure the proper and
honest administration of justice by “purging the profession of
 G.R. No. 137590 March 26, 2001
FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.
PARDO, J.:
The Family Code emphasizes the permanent nature of marriage,
hailing it as the foundation of the family.1 It is this inviolability which
is central to our traditional and religious concepts of morality and
provides the very bedrock on which our society finds
stability.2 Marriage is immutable and when both spouses give their
consent to enter it, their consent becomes irrevocable, unchanged even
by their independent wills.
However, this inviolability depends on whether the marriage exists and
is valid. If it is void ab initio, the "permanence" of the union becomes
irrelevant, and the Court can step in to declare it so. Article 36 of the
Family Code is the justification.3 Where it applies and is duly proven,
a judicial declaration can free the parties from the rights, obligations,
burdens and consequences stemming from their marriage.
A declaration of nullity of marriage under Article 36 of the Family
Code requires the application of procedural and substantive guidelines.
While compliance with these requirements mostly devolves upon
petitioner, the State is likewise mandated to actively intervene in the
procedure. Should there be non-compliance by the State with its
statutory duty, there is a need to remand the case to the lower court for
proper trial.
The Case
What is before the Court4 is an appeal from a decision of the Court of
Appeals5 which affirmed the decision of the Regional Trial Court,
Branch 158, Pasig City6 dismissing petitioner Florence Malcampo-
Sin's (hereafter "Florence") petition for declaration of nullity of
marriage due to psychological incapacity for insufficiency of evidence.
The Facts
On January 4, 1987, after a two-year courtship and engagement,
Florence and respondent Philipp T. Sin (hereafter "Philipp"), a
Portugese citizen, were married at St. Jude Catholic Parish in San
Miguel, Manila.7
On September 20, 1994, Florence filed with the Regional Trial Court,
Branch 158, Pasig City, a complaint for "declaration of nullity of
marriage" against Philipp.8 Trial ensued and the parties presented their
respective documentary and testimonial evidence.
On June 16, 1995, the trial court dismissed Florence's petition.9
On December 19, 1995, Florence filed with the trial court a notice of
appeal to the Court of Appeals.10
After due proceedings, on April 30, 1998, the Court of Appeals
promulgated its decision, the dispositive portion of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is
DISMISSED. The Decision appealed from is AFFIRMED. Cost
against the Appellant."11
On June 23, 1998, petitioner filed with the Court of Appeals a motion
for reconsideration of the aforequoted decision.12
On January 19, 1999, the Court of Appeals denied petitioner's motion
for reconsideration.13
Hence, this appeal.14
The Court's Ruling
We note that throughout the trial in the lower court, the State did not
participate in the proceedings. While Fiscal Jose Danilo C.
Jabson15 filed with the trial court a manifestation dated November 16,
1994, stating that he found no collusion between the parties,16 he did
not actively participate therein. Other than entering his appearance at
certain hearings of the case, nothing more was heard from him.
Neither did the presiding Judge take any step to encourage the fiscal to
contribute to the proceedings.
The Family Code mandates:
"ARTICLE 48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed (italics ours).
"In the cases referred to in the preceding paragraph, no judgment shall
be based upon a stipulation of facts or confession of judgment."
It can be argued that since the lower court dismissed the petition, the
evil sought to be prevented (i.e., dissolution of the marriage) did not
come about, hence, the lack of participation of the State was cured.
Not so. The task of protecting marriage as an inviolable social
institution requires vigilant and zealous participation and not
mere pro-forma compliance. The protection of marriage as a sacred
institution requires not just the defense of a true and genuine union but
the exposure of an invalid one as well. This is made clear by the
following pronouncement:
"(8) The trial court must order the prosecuting attorney or fiscal and
the Solicitor General to appear as counsel for the state. No decision
shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision,17 briefly stating
therein his reasons for his agreement or opposition as the case may be,
to the petition. The Solicitor-General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095
(italics ours)."18
The records are bereft of any evidence that the State participated in the
prosecution of the case not just at the trial level but on appeal with the
Court of Appeals as well. Other than the "manifestation" filed with the
trial court on November 16, 1994, the State did not file any pleading,
motion or position paper, at any stage of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we
upheld the validity of the marriage, we nevertheless characterized the
decision of the trial court as "prematurely rendered" since the
investigating prosecutor was not given an opportunity to present
controverting evidence before the judgment was rendered. This
stresses the importance of the participation of the State.
Having so ruled, we decline to rule on the factual disputes of the case,
this being within the province of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs.
Court of Appeals,20 the guidelines in the interpretation and application
of Article 36 of the Family Code are as follows (omitting guideline [8]
in the enumeration as it was already earlier quoted):
"(1) The burden of proof to show the nullity of the marriage belongs to
the plaintiff. Any doubt should be resolved in favor of the existence
and continuation of the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family, recognizing it "as
the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be "protected" by the state.
The Family Code echoes this constitutional edict on marriage and the
family and emphasizes their permanence, inviolability and solidarity.
"(2) The root cause of the psychological incapacity must be: a)
medically or clinically identified, b) alleged in the complaint, c)
sufficiently proven by experts and d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be
psychological — not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court that
the parties, or one of them, was mentally or psychically (sic) ill to such
an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so
as not to limit the application of the provision under the principle
of ejusdem generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully explained. "(7) Interpretations given by the National Appellate Matrimonial
Expert evidence may be given by qualified psychiatrists and clinical Tribunal of the Catholic Church in the Philippines, while not
psychologists. controlling or decisive, should be given great respect by our courts."
"(3) The incapacity must be proven to be existing at "the time of the The Fallo
celebration" of the marriage. The evidence must show that the illness
WHEREFORE, the Court REVERSES and SETS ASIDE the appealed
was existing when the parties exchanged their "I do's." The
decision of the Court of Appeals in CA-G.R. CV No. 51304,
manifestation of the illness need not be perceivable at such time, but
promulgated on April 30, 1998 and the decision of the Regional Trial
the illness itself must have attached at such moment, or prior thereto.
Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16,
"(4) Such incapacity must also be shown to be medically or clinically 1995.
permanent or incurable. Such incurability may be absolute or even
Let the case be REMANDED to the trial court for proper trial.
relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such incapacity must No costs.
be relevant to the assumption of marriage obligations, not necessarily
to those not related to marriage, like the exercise of a profession or SO ORDERED.
employment in a job. Hence, a pediatrician may be effective in Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.
diagnosing illnesses of children and prescribing medicine to cure them
but may not be psychologically capacitated to procreate, bear and raise
his/her own children as an essential obligation of marriage.
"(5) Such illness must be grave enough to bring about the disability of
the party to assume the essential obligations of marriage. Thus, "mild
characteriological peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The illness must be
shown as downright incapacity or inability, not refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person
from really accepting and thereby complying with the obligations
essential to marriage.
"(6) The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard
to parents and their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence and included in
the text of the decision.
 A.C. No. 9872 January 28, 2014
NATIVIDAD P. NAVARRO and HILDA S.
PRESBITERO, Complainants,
vs.
ATTY. IVAN M. SOLIDUM, JR., Respondent.
DECISION
PER CURIAM:
This case originated from a complaint for disbarment, dated 26 May
2008, filed by Natividad P. Navarro (Navarro) and Hilda S. Presbitero
(Presbitero) against Atty. Ivan M. Solidum, Jr. (respondent) before the
Integrated Bar of the Philippines Commission on Bar Discipline (IBP-
CBD).
From the Report, dated 1July 2009, of the IBP-CBD, we gathered the
following facts of the case:
On 4 April 2006, respondent signed a retainer agreement with
Presbitero to follow up the release of the payment for the latter’s 2.7-
hectare property located in Bacolod which was the subject of a
Voluntary Offer to Sell (VOS) to the Department of Agrarian Reform
(DAR). The agreement also included the payment of the debts of
Presbitero’s late husband to the Philippine National Bank (PNB), the
sale of the retained areas of the property, and the collection of the
rentals due for the retained areas from their occupants. It appeared that
the DAR was supposed to pay ₱700,000 for the property but it was
mortgaged by Presbitero and her late husband to PNB for ₱1,200,000.
Presbitero alleged that PNB’s claim had already prescribed, and she
engaged the services of respondent to represent her in the matter.
Respondent proposed the filing of a case for quieting of title against
PNB. Respondent and Presbitero agreed to an attorney’s fee of 10% of
the proceeds from the VOS or the sale of the property, with the
expenses to be advanced by Presbitero but deductible from
respondent’s fees. Respondent received ₱50,000 from Presbitero,
supposedly for the expenses of the case, but nothing came out of it.
In May 2006, Presbitero’s daughter, Ma. Theresa P. Yulo (Yulo), also
engaged respondent’s services to handle the registration of her 18.85-
hectare lot located in Nasud-ong, Caradio-an, Himamaylan, Negros.
Yulo convinced her sister, Navarro, to finance the expenses for the
registration of the property. Respondent undertook to register the
property in consideration of 30% of the value of the property once it is
registered. Respondent obtained ₱200,000 from Navarro for the
registration expenses. Navarro later learned that the registration decree
over the property was already issued in the name of one Teodoro Yulo.
Navarro alleged that she would not have spent for the registration of
the property if respondent only apprised her of the real situation of the
property.
On 25 May 2006, respondent obtained a loan of ₱1,000,000 from
Navarro to finance his sugar trading business. Respondent and Navarro
executed a Memorandum of Agreement (MOA) and agreed that the
loan (a) shall be for a period of one year; (b) shall earn interest at the
rate of 10% per month; and (c) shall be secured by a real estate
mortgage over a property located in Barangay Alijis, Bacolod City,
covered by Transfer Certificate of Title No. 304688. They also agreed
that respondent shall issue postdated checks to cover the principal
amount of the loan as well as the interest thereon. Respondent
delivered the checks to Navarro, drawn against an account in
Metrobank, Bacolod City Branch, and signed them in the presence of
Navarro.
In June 2006, respondent obtained an additional loan of ₱1,000,000
from Navarro, covered by a second MOA with the same terms and
conditions as the first MOA. Respondent sent Navarro, through a
messenger, postdated checks drawn against an account in Bank of
Commerce, Bacolod City Branch. Respondent likewise discussed with
Navarro about securing a "Tolling Agreement" with Victorias Milling
Company, Inc. but no agreement was signed.
At the same time, respondent obtained a loan of ₱1,000,000 from
Presbitero covered by a third MOA, except that the real estate
mortgage was over a 263-square-meter property located in Barangay
Taculing, Bacolod City. Respondent sent Presbitero postdated checks
drawn against an account in Metrobank, Bacolod City Branch.
Presbitero was dissatisfied with the value of the 263-square-meter
property mortgaged under the third MOA, and respondent promised to
execute a real estate mortgage over a 1,000-square-meter parcel of
land adjacent to the 4,000-square-meter property he mortgaged to
Navarro.
However, respondent did not execute a deed for the additional
security.
Respondent paid the loan interest for the first few months. He was able
to pay complainants a total of ₱900,000. Thereafter, he failed to pay
either the principal amount or the interest thereon. In September 2006,
the checks issued by respondent to complainants could no longer be
negotiated because the accounts against which they were drawn were
already closed. When complainants called respondent’s attention, he
promised to pay the agreed interest for September and October 2006
but asked for a reduction of the interest to 7% for the succeeding
months.
In November 2006, respondent withdrew as counsel for Yulo. On the
other hand, Presbitero terminated the services of respondent as
counsel. Complainants then filed petitions for the judicial foreclosure
of the mortgages executed by respondent in their favor. Respondent
countered that the 10% monthly interest on the loan was usurious and
illegal. Complainants also filed cases for estafa and violation of Batas
Pambansa Blg. 22 against respondent.
Complainants alleged that respondent induced them to grant him loans
by offering very high interest rates. He also prepared and signed the
checks which turned out to be drawn against his son’s accounts.
Complainants further alleged that respondent deceived them regarding
the identity and value of the property he mortgaged because he showed
them a different property from that which he owned. Presbitero further
alleged that respondent mortgaged his 263-square-meter property to
her for ₱1,000,000 but he later sold it for only ₱150,000.
Respondent, for his defense, alleged that he was engaged in sugar and
realty business and that it was Yulo who convinced Presbitero and
Navarro to extend him loans. Yulo also assured him that Presbitero
would help him with the refining of raw sugar through Victorias
Milling Company, Inc. Respondent alleged that Navarro fixed the
interest rate and he agreed because he needed the money. He alleged
that their business transactions were secured by real estate mortgages
and covered by postdated checks. Respondent denied that the property
he mortgaged to Presbitero was less than the value of the loan. He also
denied that he sold the property because the sale was actually
rescinded. Respondent claimed that the property he mortgaged to
Navarro was valuable and it was actually worth more than ₱8,000,000.
Respondent alleged that he was able to pay complainants when
business was good but he was unable to continue paying when the
price of sugar went down and when the business with Victorias
Milling Company, Inc. did not push through because Presbitero did not
help him. Respondent also denied that he was hiding from
complainants.
Respondent further alleged that it was Yulo who owed him ₱530,000
as interest due for September to December 2005. He denied making
any false representations. He claimed that complainants were aware
that he could no longer open a current account and they were the ones
who proposed that his wife and son issue the checks. Respondent
further alleged that he already started with the titling of Yulo’s lot but
his services were terminated before it could be completed.
A supplemental complaint was filed charging respondent with
accepting cases while under suspension. In response, respondent
alleged that he accepted Presbitero’s case in February 2006 and
learned of his suspension only in May 2006.
After conducting a hearing and considering the position papers
submitted by the parties, the IBP-CBD found that respondent violated
the Code of Professional Responsibility.
The IBP-CBD found that respondent borrowed ₱2,000,000 from
Navarro and ₱1,000,000 from Presbitero which he failed to pay in
accordance with the MOAs he executed. The IBP-CBD found that
based on the documents presented by the parties, respondent did not
act in good faith in obtaining the loans. The IBP-CBD found that
respondent either promised or agreed to pay the very high interest rates
of the loans although he knew them to be exorbitant in accordance
with jurisprudence. Respondent likewise failed to deny that he misled
Navarro and her husband regarding the identity of the property
mortgaged to them. Respondent also mortgaged a property to
Presbitero for ₱1,000,000 but documents showed that its value was
only ₱300,000. Documents also showed that he sold that property for
only ₱150,000. Respondent conspired with Yulo to secure loans by
promising her a 10% commission and later claimed that they agreed
that Yulo would "ride" on the loan by borrowing ₱300,000 from the
amount he obtained from Navarro and Presbitero. Respondent could
not explain how he lost all the money he borrowed in three months
except for his claim that the price of sugar went down.
The IBP-CBD found that respondent misled Navarro and Presbitero
regarding the issuance of the postdated checks, and there was nothing
in the records that would show that he informed them that it would be
his wife or son who would issue the checks. The IBP-CBD also found
that respondent had not been transparent in liquidating the money he
received in connection with Presbitero’s VOS with DAR. He was also
negligent in his accounting regarding the registration of Yulo’s
property which was financed by Navarro.
The IBP-CBD found that respondent was guilty of violating Rule 1.01
of the Code of Professional Responsibility for committing the
following acts:
(1) signing drawn checks against the account of his son as if they were
from his own account;
(2) misrepresenting to Navarro the identity of the lot he mortgaged to
her;
(3) misrepresenting to Presbitero the true value of the 263-square-
meter lot he mortgaged to her;
(4) conspiring with Yulo to obtain the loans from complainants;
(5) agreeing or promising to pay 10% interest on his loans although he
knew that it was exorbitant; and
(6) failing to pay his loans because the checks he issued were
dishonored as the accounts were already closed.
The IBP-CBD also found that respondent violated Canon 16 and Rule
16.01 of the Code of Professional Responsibility when he failed to
properly account for the various funds he received from complainants.
In addition, the IBP-CBD found that respondent violated Rule 16.04 of
the Code of Professional Responsibility which prohibits borrowing
money from a client unless the client’s interest is fully protected or the
client is given independent advice.
On the matter of practicing law while under suspension, the IBP-CBD
found that the records were not clear whether the notice of suspension
respondent received on 29 May 2006 was the report and
recommendation of the IBP-CBD or the final decision of this Court.
The IBP-CBD likewise found that there was insufficient evidence to
prove that respondent mishandled his cases.
The IBP-CBD recommended that respondent be meted the penalty of
disbarment.
In Resolution No. XIX-2011-267 dated 14 May 2011, the IBP Board
of Governors adopted and approved the recommendation of the IBP-
CBD with modification by reducing the recommended penalty from
disbarment to suspension from the practice of law for two years. The
IBP Board of Governors likewise ordered respondent to return the
amount of his unpaid obligation to complainants.
Complainants filed a motion for reconsideration, praying that the
penalty of disbarment be instead imposed upon respondent.
The only issue in this case is whether respondent violated the Code of
Professional Responsibility.
The records show that respondent violated at least four provisions of
the Code of Professional Responsibility.
Rule 1.01 of the Code of Professional Responsibility provides:
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.
With respect to his client, Presbitero, it was established that respondent
agreed to pay a high interest rate on the loan he obtained from her. He
drafted the MOA. Yet, when he could no longer pay his loan, he
sought to nullify the same MOA he drafted on the ground that the
interest rate was unconscionable. It was also established that
respondent mortgaged a 263-square-meter property to Presbitero for
₱1,000,000 but he later sold the property for only ₱150,000, showing
that he deceived his client as to the real value of the mortgaged
property. Respondent’s allegation that the sale was eventually
rescinded did not distract from the fact that he did not apprise
Presbitero as to the real value of the property.
Respondent failed to refute that the checks he issued to his client
Presbitero and to Navarro belonged to his son, Ivan Garcia Solidum III
whose name is similar to his name. He only claimed that complainants
knew that he could no longer open a current bank account, and that
they even suggested that his wife or son issue the checks for him.
However, we are inclined to agree with the IBP-CBD’s finding that he
made complainants believe that the account belonged to him. In fact,
respondent signed in the presence of Navarro the first batch of checks
he issued to Navarro. Respondent sent the second batch of checks to
Navarro and the third batch of checks to Presbitero through a
messenger, and complainants believed that the checks belonged to
accounts in respondent’s name.
It is clear that respondent violated Rule 1.01 of the Code of
Professional Responsibility. We have ruled that conduct, as used in the
Rule, is not confined to the performance of a lawyer’s professional
duties.1 A lawyer may be disciplined for misconduct committed either
in his professional or private capacity.2 The test is whether his conduct
shows him to be wanting in moral character, honesty, probity, and
good demeanor, or whether it renders him unworthy to continue as an
officer of the court.3
In this case, the loan agreements with Navarro were done in
respondent’s private capacity. Although Navarro financed the
registration of Yulo’s lot, respondent and Navarro had no lawyer-client
relationship. However, respondent was Presbitero’s counsel at the time
she granted him a loan. It was established that respondent misled
Presbitero on the value of the property he mortgaged as a collateral for
his loan from her. To appease Presbitero, respondent even made a
Deed of Undertaking that he would give her another 1,000-square-
meter lot as additional collateral but he failed to do so.
Clearly, respondent is guilty of engaging in dishonest and deceitful
conduct, both in his professional capacity with respect to his client,
Presbitero, and in his private capacity with respect to complainant
Navarro. Both Presbitero and Navarro allowed respondent to draft the
terms of the loan agreements. Respondent drafted the MOAs knowing
that the interest rates were exorbitant. Later, using his knowledge of
the law, he assailed the validity of the same MOAs he prepared. He
issued checks that were drawn from his son’s account whose name
was similar to his without informing complainants. Further, there is
nothing in the records that will show that respondent paid or undertook
to pay the loans he obtained from complainants.
Canon 16 and Rule 16.01 of the Code of Professional Responsibility
provide:
CANON 16. - A LAWYER SHALL HOLD IN TRUST ALL
MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY
COME INTO HIS POSSESSION.
Rule 16.01 – A lawyer shall account for all money or property
collected or received for or from the client.
The fiduciary nature of the relationship between the counsel and his
client imposes on the lawyer the duty to account for the money or
property collected or received for or from his client.4 We agree with
the IBP-CBD that respondent failed to fulfill this duty. In this case, the
IBP-CBD pointed out that respondent received various amounts from
complainants but he could not account for all of them.
Navarro, who financed the registration of Yulo’s 18.85-hectare lot,
claimed that respondent received ₱265,000 from her. Respondent
countered that ₱105,000 was paid for real estate taxes but he could not
present any receipt to prove his claim. Respondent also claimed that he
paid ₱70,000 to the surveyor but the receipt was only for ₱15,000.
Respondent claimed that he paid ₱50,000 for filing fee, publication
fee, and other expenses but again, he could not substantiate his claims
with any receipt. As pointed out by the IBP-CBD, respondent had been
less than diligent in accounting for the funds he received from Navarro
for the registration of Yulo’s property.
Unfortunately, the records are not clear whether respondent rendered
an accounting to Yulo who had since passed away.
As regards Presbitero, it was established during the clarificatory
hearing that respondent received ₱50,000 from Presbitero. As the IBP-
CBD pointed out, the records do not show how respondent spent the
funds because he was not transparent in liquidating the money he
received from Presbitero.
Clearly, respondent had been negligent in properly accounting for the
money he received from his client, Presbitero.1âwphi1 Indeed, his
failure to return the excess money in his possession gives rise to the
presumption that he has misappropriated it for his own use to the
prejudice of, and in violation of the trust reposed in him by, the client.5
Rule 16.04 of the Code of Professional Responsibility provides:
Rule 16.04. - A lawyer shall not borrow money from his client unless
the client’s interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client
except, when in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the client.
Here, respondent does not deny that he borrowed ₱1,000,000 from his
client Presbitero. At the time he secured the loan, respondent was
already the retained counsel of Presbitero.
While respondent’s loan from Presbitero was secured by a MOA,
postdated checks and real estate mortgage, it turned out that
respondent misrepresented the value of the property he mortgaged and
that the checks he issued were not drawn from his account but from
that of his son. Respondent eventually questioned the terms of the
MOA that he himself prepared on the ground that the interest rate
imposed on his loan was unconscionable. Finally, the checks issued by
respondent to Presbitero were dishonored because the accounts were
already closed. The interest of his client, Presbitero, as lender in this
case, was not fully protected. Respondent violated Rule 16.04 of the
Code of Professional Responsibility, which presumes that the client is
disadvantaged by the lawyer’s ability to use all the legal maneuverings
to renege on his obligation.6 In his dealings with his client Presbitero,
respondent took advantage of his knowledge of the law as well as the
trust and confidence reposed in him by his client.
We modify the recommendation of the IBP Board of Governors
imposing on respondent the penalty of suspension from the practice of
law for two years. Given the facts of the case, we see no reason to
deviate from the recommendation of the IBP-CBD imposing on
respondent the penalty of disbarment. Respondent failed to live up to
the high standard of morality, honesty, integrity, and fair dealing
required of him as a member of the legal profession.7 Instead,
respondent employed his knowledge and skill of the law and took
advantage of his client to secure undue gains for himself8 that warrants
his removal from the practice of law. Likewise, we cannot sustain the
IBP Board of Governors’ recommendation ordering respondent to
return his unpaid obligation to complainants, except for advances for
the expenses he received from his client, Presbitero, that were not
accounted at all. In disciplinary proceedings against lawyers, the only
issue is whether the officer of the court is still fit to be allowed to
continue as a member of the Bar.9 Our only concern is the
determination of respondent’s administrative liability.10
Our findings have no material bearing on other judicial action which
the parties may choose to file against each other.11 Nevertheless, when
a lawyer receives money from a client for a particular purpose
involving the client-attorney relationship, he is bound to render an
accounting to the client showing that the money was spent for that
particular purpose.12 If the lawyer does not use the money for the
intended purpose, he must immediately return the money to his
client.13 Respondent was given an opportunity to render an accounting,
and he failed. He must return the full amount of the advances given
him by Presbitero, amounting to ₱50,000.
WHEREFORE, the Court finds Atty. Ivan M. Solidum, Jr. GUILTY of
violating Rule 1.01, Canon 16, Rule 16.01, and Rule 16.04 of the Code
of Professional Responsibility. Accordingly, the Court DISBARS him
from the practice of law effective immediately upon his receipt of this
Decision.
Atty. Solidum is ORDERED to return the advances he received from
Hilda S. Presbitero, amounting to ₱50,000, and to submit to the Office
of the Bar Confidant his compliance with this order within thirty days
from finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar
Confidant, the Integrated Bar of the Philippines for distribution to all
its chapters, and the Office of the Court Administrator for
dissemination to all courts all over the country. Let a copy of this
Decision be attached to the personal records of respondent.
SO ORDERED.
 EN BANC
A.C. No. 11078, July 19, 2016
VERLITA V. MERCULLO AND RAYMOND
VEDANO, Complainants, v. ATTY. MARIE FRANCES E.
RAMON, Respondent.
DECISION
BERSAMIN, J.:
This case concerns the complaint for the disbarment of Atty. Marie
Frances E. Ramon for violating Rule 1.01, Canon 1 of the Code of
Professional Responsibility and the Lawyer's Oath for deceiving the
complainants in order to obtain the substantial amount of P350,000.00
on the pretext of having the foreclosed asset of the latter's mother
redeemed.
Antecedents
In the period from 2002 to 2011, the National Home Mortgage Finance
Corporation (NHMFC) sent several demand letters to Carmelite T.
Vedaño1 regarding her unpaid obligations secured by the mortgage
covering her residential property in Novaliches, Caloocan City.2 To
avoid the foreclosure of the mortgage, Carmelita authorized her
children, Verlita Mercullo and Raymond Vedaño (complainants
herein), to inquire from the NHMFC about the status of the
obligations. Verlita and Raymond learned that their mother's arrears
had amounted to P350,000.00, and that the matter of the mortgage was
under the charge of respondent Atty. Ramon, but who was not around
at that time.
On June 20, 2012, Carmelita received a letter from the sheriff of the
Regional Trial Court (RTC) in Caloocan City, stating that her property
would be put up for auction in July 2013. Verlita and Raymond thus
went to the NHMFC to see the respondent, who advised them about
their right to redeem the property within one year from the
foreclosure.3chanrobleslaw
In August 2013, Verlita and Raymond called up the respondent, and
expressed their intention to redeem the property by paying the
redemption price. The latter agreed and scheduled an appointment with
them on August 30, 2013.
On August 30, 2013, the respondent arrived at the designated meeting
place at around 1:30 p.m., carrying the folder that Verlita and
Raymond had seen at the NHFMC when they inquired on the status of
their mother's property. After the respondent had oriented them on the
procedure for redemption, the complainants handed P350,000.00 to the
respondent, who signed an acknowledgment receipt.4 The respondent
issued two acknowledgment receipts for the redemption price and for
litigation expenses,5 presenting to the complainants her NHMFC
identification card. Before leaving them, she promised to inform them
as soon as the documents for redemption were ready for their mother's
signature.6chanrobleslaw
On September 4, 2013, the respondent met with Verlita and handed a
letter7 that she had signed, along with the special power of attorney
(SPA) for Carmelita's signature.8 The letter reads:
chanRoblesvirtualLawlibrary
Office of the Clerk of Court and Ex Officio Sheriff
Regional Trial Court
Caloocan City
Re: Redemption of the property covered by EJF No. 7484-2013
Dear Arty. Dabalos,
Please assist Ms. Carmelita Vedano, through her Attorney-in-Fact in
redeeming the property covered by EJF No. 7484-2013. Please provide
the necessary computation as to the full redemption amount in order
for Ms. Vedano to redeem the same.
Thank you. Truly yours,
(Sgd.)
Atty. Marie Frances E. Ramon
Verlita and Raymond went to the NHMFC on September 9, 2013 to
follow up on the redemption, but discovered that the respondent had
already ceased to be connected with the NHMFC. On September 20,
2013, they met with her at Branch 145 of the Regional Trial Court in
Makati City where she was attending a hearing. She informed them
that the redemption was under process, and that the certificate of
redemption would be issued in two to three weeks time.9chanrobleslaw
After communicating through text messages with the respondent,
Verlita and Raymond finally went to see the Clerk of Court of the
Regional Trial Court in Caloocan City On November 27, 2013 to
inquire on the status of the redemption. There, they discovered that the
respondent had not deposited the redemption price and had not filed
the letter of intent for redeeming the property.10chanrobleslaw
On December 5, 2013, Verlita and Raymond again went to Branch 145
of the Regional Trial Court in Makati City where the respondent had a
hearing, and handed to her their demand letter requiring her to return
the amount she had received for the redemption.11 She acknowledged
the letter and promised to return the money on December 16, 2013 by
depositing the amount in Verlita's bank account. However, she did not
fulfill her promise and did not show up for her subsequent scheduled
hearings in Branch 145.12chanrobleslaw
With their attempts to reach the respondent being in vain, Verlita and
Raymond brought their disbarment complaint in the Integrated Bar of
the Philippines (IBP).
Findings and Recommendation of the IBP
The respondent did not submit her answer when required to do so. She
also did not attend the mandatory conference set by the IBP despite
notice. Hence, the investigation proceeded ex parte.13chanrobleslaw
IBP Commissioner Arsenio P. Adriano submitted his Report and
Recommendation,14 whereby he found the respondent to have violated
Rule 1.01 of the Code of Professional Responsibility for engaging in
deceitful conduct, and recommended her suspension from the practice
of law for two years, and her return to the complainants of
P350,000.00. with legal interest from December 2, 2013.
The IBP Board of Governors adopted Commissioner Adriano's
recommendation as stated in its Resolution No. XXI-2014-929,15viz.:
chanRoblesvirtualLawlibrary
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
AND APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein made
part of this Resolution as Annex "A", and finding the recommendation
to be fully supported by the evidence on record and applicable laws,
and for violation of Rule 1.01 of the Code of Professional
Responsibility, Atty. Marie Frances E. Ramon is
hereby SUSPENDED from the practice of law for two (2) years
and Ordered to Return the amount of Three Hundred Fifty
Thousand (P350,000.00) Pesos to Complainant.
Ruling of the Court
The Court declares the respondent guilty of dishonesty and deceit.
The Lawyer's Oath is a source of the obligations and duties of every
lawyer. Any violation of the oath may be punished with either
disbarment, or suspension from the practice of law, or other
commensurate disciplinary action.16 Every lawyer must at no time be
wanting in probity and moral fiber which are not only conditions
precedent to his admission to the Bar, but are also essential for his
continued membership in the Law Profession.17 Any conduct
unbecoming of a lawyer constitutes a violation of his oath.
The respondent certainly transgressed the Lawyer's Oath by receiving
money from the complainants after having made them believe that she
could assist them in ensuring the redemption in their mother's behalf.
She was convincing about her ability to work on the redemption
because she had worked in the NHFMC. She did not inform them soon
enough, however, that she had meanwhile ceased to be connected with
the agency. It was her duty to have so informed them. She further
misled them about her ability to realize the redemption by falsely
informing them about having started the redemption process. She
concealed from them the real story that she had not even initiated the
redemption proceedings that she had assured them she would do.
Everything she did was dishonest and deceitful in order to have them
part with the substantial sum of P350,000.00. She took advantage of
the complainants who had reposed their full trust and confidence in her
ability to perform the task by virtue of her being a lawyer. Surely, the
totality of her actuations inevitably eroded public trust in the Legal
Profession.
As a lawyer, the respondent was proscribed from engaging in
unlawful, dishonest, immoral or deceitful conduct in her dealings with
others, especially clients whom she should serve with competence and
diligence.18 Her duty required her to maintain fealty to them, binding
her not to neglect the legal matter entrusted to her. Thus, her neglect in
connection therewith rendered her liable.19 Moreover, the unfulfilled
promise of returning the money and her refusal to communicate with
the complainants on the matter of her engagement aggravated the
neglect and dishonesty attending her dealings with the complainants.
The respondent's conduct patently breached Rule 1.01, Canon 1 of
the Code of Professional Responsibility, which provides:
chanRoblesvirtualLawlibrary
CANON 1 — A lawyer shall uphold the constitution, obey the laws of
the land and promote respect for law and for legal processes.
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral,
or deceitful conduct.
Evil intent was not essential in order to bring the unlawful act or
omission of the respondent within the coverage of Rule 1.01 of
the Code of Professional Responsibility20 The Code exacted from her
not only a firm respect for the law and legal processes but also the
utmost degree of fidelity and good faith in dealing with clients and the
moneys entrusted by them pursuant to their fiduciary
relationship.21chanrobleslaw
Yet another dereliction of the respondent was her wanton disregard of
the several notices sent to her by the IBP in this case. Such disregard
could only be wrong because it reflected her undisguised contempt of
the proceedings of the IBP, a body that the Court has invested with the
authority to investigate the disbarment complaint against her. She thus
exhibited her irresponsibility as well as her utter disrespect for the
Court and the rest of the Judiciary. It cannot be understated that a
lawyer in her shoes should comply with the orders of the Court and of
the Court's duly constituted authorities, like the IBP, the office that the
Court has particularly tasked to carry out the specific function of
investigating attorney misconduct.22chanrobleslaw
The respondent deserves severe chastisement and appropriate
sanctions. In this regard, the IBP Board of Governors recommended
her suspension for two years from the practice of law, and her return of
the amount of P350,000.00 to the complainants. The recommended
penalty is not commensurate to the gravity of the misconduct
committed. She merited a heavier sanction of suspension from the throughout the country for their information and guidance.
practice of law for five years. Her professional misconduct warranted a
longer suspension from the practice of law because she had caused SO ORDERED.chanRoblesvirtualLawlibrary
material prejudice to the clients' interest.23 She should somehow be
taught to be more ethical and professional in dealing with trusting Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Del
clients like the complainants and their mother, who were innocently Castillo, Perez, Reyes, Perlas-Bernabe, Leonen, Jardeleza,
too willing to repose their utmost trust in her abilities as a lawyer and and Caguioa, JJ., concur.
in her trustworthiness as a legal professional. In this connection, we Brion, J., on leave.
state that the usual mitigation of the recommended penalty by virtue of Mendoza, J., on official leave.
the misconduct being her first offense cannot be carried out in her
favor considering that she had disregarded the several notices sent to
her by the IBP in this case. As to the return of the P350,000.00 to the
complainant, requiring her to restitute with legal interest is only fair
and just because she did not comply in the least with her ethical
undertaking to work on the redemption of the property of the mother
of the complainants. In addition, she is sternly warned against a similar
infraction in the future; otherwise, the Court will have her suffer a
more severe penalty.

WHEREFORE, the Court FINDS and HOLDS ATTY . MARIE

FRANCES E. RAMON guilty of violating Canon 1, Rule 1.01 of
the Code of Professional Responsibility and the Lawyer's
Oath; SUSPENDS HER FROM THE PRACTICE OF LAW FOR
A PERIOD OF FIVE YEARS EFFECTIVE FROM NOTICE,
with the STERN WARNING that any similar infraction in the future
will be dealt with more severely; ORDERS her to return to the
complainants the sum of P350,000.00 within 30 days from notice, plus
legal interest of 6% per annum reckoned from the finality of this
decision until full payment; and DIRECTS her to promptly submit to
this Court written proof of her compliance within the same period of
30 days from notice of this decision.

Let copies of this decision be furnished to the Office of the Bar

Confidant, to be appended to Atty. Marie Frances E. Ramon's personal
record as an attorney; to the Integrated Bar of the Philippines; and to
the Office of the Court Administrator for dissemination to all courts
 A.C. No. 10573 January 13, 2015
FERNANDO W. CHU, Complainant,
vs.
ATTY. JOSE C. GUICO, JR., Respondent.
DECISION
PER CURIAM:
Fernando W. Chu invokes the Court's disciplinary authority in
resolving this disbarment complaint against his former lawyer,
respondent Atty. Jose C. Guico, Jr., whom he has accused of gross
misconduct.
Antecedents
Chu retained Atty. Guico as counsel to handle the labor disputes
involving his company, CVC San Lorenzo Ruiz Corporation
(CVC).1 Atty. Guico’s legal services included handling a complaint for
illegal dismissal brought against CVC (NLRC Case No. RAB-III-08-
9261-05 entitled Kilusan ng Manggagawang Makabayan (KMM)
Katipunan CVC San Lorenzo Ruiz Chapter, Ladivico Adriano, et al. v.
CVC San Lorenzo Ruiz Corp. and Fernando Chu).2 On September 7,
2006, Labor Arbiter Herminio V. Suelo rendered a decision adverse to
CVC.3 Atty. Guico filed a timely appeal in behalf of CVC.
According to Chu, during a Christmas party held on December 5, 2006
at Atty. Guico’s residence in Commonwealth, Quezon City, Atty.
Guico asked him to prepare a substantial amount of money to be given
to the NLRC Commissioner handling the appeal to insure a favorable
decision.4 On June 10, 2007, Chu called Atty. Guico to inform him
that he had raised ₱300,000.00 for the purpose. Atty. Guico told him to
proceed to his office at No. 48 Times Street, Quezon City, and togive
the money to his assistant, Reynaldo (Nardo) Manahan. Chu complied,
and later on called Atty. Guico to confirm that he had delivered the
money to Nardo. Subsequently, Atty. Guico instructed Chu to meet
him on July 5, 2007 at the UCC Coffee Shop on T. Morato Street,
Quezon City. Atthe UCC Coffee Shop, Atty. Guico handed Chu a
copy of an alleged draft decision of the NLRC in favor of CVC.5 The
draft decision6 was printed on the dorsal portion of used paper
apparently emanating from the office of Atty. Guico. On that occasion,
the latter told Chu to raise another ₱300,000.00 to encourage the
NLRC Commissioner to issue the decision. But Chu could only
produce ₱280,000.00, which he brought to Atty. Guico’s office on July
10, 2007 accompanied by his son, Christopher Chu, and one Bonifacio
Elipane. However, it was Nardo who received the amount without
issuing any receipt.7
Chu followed up on the status of the CVC case with Atty. Guico in
December 2007. However, Atty. Guico referred him to Nardo who in
turn said that he would only know the status after Christmas. On
January 11, 2008, Chu again called Nardo, who invited him to lunch at
the Ihaw Balot Plaza in Quezon City. Once there, Chu asked Nardo if
the NLRC Commissioner had accepted the money, but Nardo replied
in the negative and simply told Chu to wait. Nardo assured that the
money was still with Atty. Guico who would return it should the
NLRC Commissioner not accept it.8
On January 19, 2009, the NLRC promulgated a decision adverse to
CVC.9 Chu confronted Atty. Guico, who in turn referred Chu to Nardo
for the filing of a motion for reconsideration. After the denial of the
motion for reconsideration, Atty. Guico caused the preparation and
filing of an appeal in the Court of Appeals. Finally, Chu terminated
Atty. Guico as legal counsel on May 25, 2009.10
In his position paper,11 Atty. Guico described the administrative
complaint as replete with lies and inconsistencies, and insisted that the
charge was only meant for harassment. He denied demanding and
receiving money from Chu, a denial that Nardo corroborated with his
own affidavit.12 He further denied handing to Chu a draft decision
printed on used paper emanating from his office, surmising that the
used paper must have been among those freely lying around in his
office that had been pilfered by Chu’s witnesses in the criminal
complaint he had handled for Chu.13
Findings and Recommendation of the
IBP Board of Governors
IBP Commissioner Cecilio A.C. Villanueva found that Atty. Guico
had violated Rules 1.01 and 1.02, Canon I of the Code of Professional
Responsibility for demanding and receiving ₱580,000.00 from Chu;
and recommended the disbarment of Atty. Guico in view of his act of
extortion and misrepresentation that caused dishonor to and contempt
for the legal profession.14
On February 12, 2013, the IBP Board of Governors adopted the
findings of IBP Commissioner Villanueva in its Resolution No. XX-
2013-87,15 but modified the recommended penalty of disbarment to
three years suspension, viz.:
RESOLVED to ADOPT and APPROVE, as it is hereby unanimously
ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner in the above-
entitled case, herein made part of this Resolution as Annex "A," and
finding the recommendation fully supported by the evidence on record
and the applicable laws and rules and considering Respondent’s
violation of Canon 1, Rules 1.01 and 1.02 of the Code of Professional
Responsibility, Atty. Jose C. Guico, Jr. is hereby SUSPENDED from
the practice of law for three (3) years with Warning that a repetition of
the same or similar act shall be dealt with more severely and Ordered
to Return the amount of Five Hundred Eighty Thousand (₱580,000.00)
Pesos with legal interest within thirty (30) days from receipt of notice.
Atty. Guico moved for reconsideration,16 but the IBP Board of
Governors denied his motion for reconsideration on March 23, 2014 in
Resolution No. XXI-2014-173.17
Neither of the parties brought a petition for review vis-à-vis Resolution
No. XX-2013-87 and Resolution No. XXI-2014-173.
Issue
Did Atty. Guico violate the Lawyer’s Oath and Rules 1.01 and 1.02,
Canon I of the Code of Professional Responsibility for demanding and
receiving ₱580,000.00 from Chu to guarantee a favorable decision
from the NLRC?
Ruling of the Court
In disbarment proceedings, the burden of proof rests on the
complainant to establish respondent attorney’s liability by clear,
convincing and satisfactory evidence. Indeed, this Court has
consistently required clearly preponderant evidence to justify the
imposition of either disbarment or suspension as penalty.18
Chu submitted the affidavits of his witnesses,19 and presented the draft
decision that Atty. Guico had represented to him as having come from
the NLRC. Chu credibly insisted that the draft decision was printed on
the dorsal portion of used paper emanating from Atty. Guico’s
office,20 inferring that Atty. Guico commonly printed documents on
used paper in his law office. Despite denying being the source of the
draft decision presented by Chu, Atty. Guico’s participation in the
generation of the draft decision was undeniable. For one, Atty. Guico
impliedly admitted Chu’s insistence by conceding that the used paper
had originated from his office, claiming only that used paper was just
"scattered around his office."21 In that context, Atty. Guico’s attempt
to downplay the sourcing of used paper from his office was futile
because he did not expressly belie the forthright statement of Chu. All
that Atty. Guico stated by way of deflecting the imputation was that
the used paper containing the draft decision could have been easily
taken from his office by Chu’s witnesses in a criminal case that he had
handled for Chu,22 pointing out that everything in his office, except the
filing cabinets and his desk, was "open to the public xxx and just
anybody has access to everything found therein."23 In our view,
therefore, Atty. Guico made the implied admission because he was
fully aware that the used paper had unquestionably come from his
office.
The testimony of Chu, and the circumstances narrated by Chu and his
witnesses, especially the act of Atty. Guico of presenting to Chu the
supposed draft decision that had been printed on used paper emanating
from Atty. Guico’s office, sufficed to confirm that he had committed
the imputed gross misconduct by demanding and receiving
₱580,000.00 from Chu to obtain a favorable decision. Atty. Guico
offered only his general denial of the allegations in his defense, but
such denial did not overcome the affirmative testimony of Chu. We
cannot but conclude that the production of the draft decision by Atty.
Guico was intended to motivate Chu to raise money to ensure the
chances of obtaining the favorable result in the labor case. As such,
Chu discharged his burden of proof as the complainant to establish his
complaint against Atty. Guico. In this administrative case, a fact may
be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.24
What is the condign penalty for Atty. Guico?
In taking the Lawyer’s Oath, Atty. Guico bound himself to:
x x x maintain allegiance to the Republic of the Philippines; x x x
support its Constitution and obey the laws as well as the legal orders of
the duly constituted authorities therein; x x x do no falsehood, nor
consent to the doing of any in court; x x x delay no man for money or
malice x x x. The Code of Professional Responsibility echoes the
Lawyer’s Oath, to wit:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of
the land and promote respect for law and for legal processes.1âwphi1
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Rule 1.02 — A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal system.
The sworn obligation to respect the law and the legal processes under
the Lawyer’s Oath and the Code of Professional Responsibility is a
continuing condition for every lawyer to retain membership in the
Legal Profession. To discharge the obligation, every lawyer should not
render any service or give advice to any client that would involve
defiance of the very laws that he was bound to uphold and obey,25 for
he or she was always bound as an attorney to be law abiding, and thus
to uphold the integrity and dignity of the Legal Profession.26 Verily, he
or she must act and comport himself or herself in such a manner that
would promote public confidence in the integrity of the Legal
Profession.27 Any lawyer found to violate this obligation forfeits his or
her privilege to continue such membership in the legal profession.
Atty. Guico willingly and wittingly violated the law in appearing to
counsel Chu to raise the large sums of money in order to obtain a
favorable decision in the labor case. He thus violated the law against
bribery and corruption. He compounded his violation by actually using
said illegality as his means of obtaining a huge sum from the client
that he soon appropriated for his own personal interest. His acts
constituted gross dishonesty and deceit, and were a flagrant breach of
his ethical commitments under the Lawyer’s Oath not to delay any
man for money or malice; and under Rule 1.01 of the Code of
Professional Responsibility that forbade him from engaging in
unlawful, dishonest, immoral or deceitful conduct. His deviant conduct
eroded the faith of the people in him as an individual lawyer as well as
in the Legal Profession as a whole. In doing so, he ceased to be a
servant of the law.
Atty. Guico committed grave misconduct and disgraced the Legal
Profession. Grave misconduct is "improper or wrong conduct, the
transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies a
wrongful intent and not mere error of judgment."28 There is no
question that any gross misconduct by an attorney in his professional
or private capacity renders him unfit to manage the affairs of others,
and is a ground for the imposition of the penalty of suspension or
disbarment, because good moral character is an essential qualification
for the admission of an attorney and for the continuance of such
privilege.29
Accordingly, the recommendation of the IBP Board of Governors to
suspend him from the practice of law for three (3) years would be too
soft a penalty. Instead, he should be disbarred,30 for he exhibited his
unworthiness of retaining his membership in the legal profession. As Let copies of this Decision be furnished to the Office of the Bar
the Court has reminded in Samonte v. Abellana:31 Confidant, to be appended to Atty. Guico’s personal record as an
attorney; to the Integrated Bar of the Philippines; and to all courts and
Disciplinary proceedings against lawyers are designed to ensure that
quasi-judicial offices in the country for their information and guidance.
whoever is granted the privilege to practice law in this country should
remain faithful to the Lawyer’s Oath. Only thereby can lawyers SO ORDERED.
preserve their fitness to remain as members of the Law Profession.
Any resort to falsehood or deception, including adopting artifices to
cover up one’s misdeeds committed against clients and the rest of the
trusting public, evinces an unworthiness to continue enjoying the
privilege to practice law and highlights the unfitness to remain a
member of the Law Profession. It deserves for the guilty lawyer stern
disciplinary sanctions.
Lastly, the recommendation of the IBP Board of Governors that Atty.
Guico be ordered to return the amount of ₱580,000.00 to Chu is well-
taken. That amount was exacted by Atty. Guico from Chu in the guise
of serving the latter’s interest as the client. Although the purpose for
the amount was unlawful, it would be unjust not to require Atty. Guico
to fully account for and to return the money to Chu. It did not matter
that this proceeding is administrative in character, for, as the Court has
pointed out in Bayonla v. Reyes:32
Although the Court renders this decision in an administrative
proceeding primarily to exact the ethical responsibility on a member of
the Philippine Bar, the Court’s silence about the respondent lawyer’s
legal obligation to restitute the complainant will be both unfair and
inequitable. No victim of gross ethical misconduct concerning the
client’s funds or property should be required to still litigate in another
proceeding what the administrative proceeding has already established
as the respondent’s liability. x x x
ACCORDINGLY, the Court FINDS and DECLARES respondent
ATTY. JOSE S. GUICO, JR. GUILTY of the violation of the
Lawyer’s Oath, and Rules 1.01 and 1.02, Canon I of the Code of
Professional Responsibility, and DISBARS him from membership in
the Integrated Bar of the Philippines. His name is ORDERED
STRICKEN from the Roll of Attorneys.
 G.R. No. 173188 January 15, 2014
THE CONJUGAL PARTNERSHIP OF THE SPOUSES
VICENTE CADAVEDO AND BENITA ARCOY-CADAVEDO
(both deceased), substituted by their heirs, namely: HERMINA,
PASTORA, Heirs of FRUCTUOSA, Heirs of RAQUEL,
EVANGELINE, VICENTE, JR., and ARMANDO, all surnamed
CADAVEDO, Petitioners,
vs.
VICTORINO (VIC) T. LACAYA, married to Rosa
Legados, Respondents.
DECISION
BRION, J.:
We solve in this Rule 45 petition for review on certiorari1 the
challenge to the October 11, 2005 decision2 and the May 9, 2006
resolution3 of the Court of Appeals (CA) inPetitioners, CA-G.R. CV
No. 56948. The CA reversed and set aside the September 17, 1996
decision4 of the Regional Trial Court (RTC), Branch 10, of Dipolog
City in Civil Case No. 4038, granting in part the complaint for
recovery of possession of property filed by the petitioners, the
Conjugal Partnership of the Spouses Vicente Cadavedo and Benita
Arcoy-Cadavedo against Atty. Victorino (Vic) T. Lacaya, married to
Rosa Legados (collectively, the respondents).
The Factual Antecedents
The Spouses Vicente Cadavedo and Benita Arcoy-Cadavedo
(collectively, the spouses Cadavedo) acquired a homestead grant over
a 230,765-square meter parcel of land known as Lot 5415 (subject lot)
located in Gumay, Piñan, Zamboanga del Norte. They were issued
Homestead Patent No. V-15414 on March 13, 1953andOriginal
Certificate of Title No. P-376 on July 2, 1953.On April30, 1955, the
spouses Cadavedo sold the subject lot to the spouses Vicente Ames
and Martha Fernandez (the spouses Ames) Transfer Certificate of Title
(TCT) No. T-4792 was subsequently issued in the name of the spouses
Ames.
The present controversy arose when the spouses Cadavedo filed an
action5 before the RTC(then Court of First Instance) of Zamboanga
City against the spouses Ames for sum of money and/or voiding of
contract of sale of homestead after the latter failed to pay the balance
of the purchase price. The spouses Cadavedo initially engaged the
services of Atty. Rosendo Bandal who, for health reasons, later
withdrew from the case; he was substituted by Atty. Lacaya.
On February 24, 1969, Atty. Lacaya amended the complaint to assert
the nullity of the sale and the issuance of TCT No. T-4792 in the
names of the spouses Ames as gross violation of the public land law.
The amended complaint stated that the spouses Cadavedo hired Atty.
Lacaya on a contingency fee basis. The contingency fee stipulation
specifically reads:
10. That due to the above circumstances, the plaintiffs were forced to
hire a lawyer on contingent basis and if they become the prevailing
parties in the case at bar, they will pay the sum of ₱2,000.00 for
attorney’s fees.6
In a decision dated February 1, 1972, the RTC upheld the sale of the
subject lot to the spouses Ames. The spouses Cadavedo, thru Atty.
Lacaya, appealed the case to the CA.
On September 18, 1975, and while the appeal before the CAin Civil
Case No. 1721was pending, the spouses Ames sold the subject lot to
their children. The spouses Ames’ TCT No. T-4792 was subsequently
cancelled and TCT No. T-25984was issued in their children’s names.
On October 11, 1976, the spouses Ames mortgaged the subject lot
with the Development Bank of the Philippines (DBP) in the names of
their children.
On August 13, 1980, the CA issued itsdecision in Civil Case No.
1721,reversing the decision of the RTC and declaring the deed of sale,
transfer of rights, claims and interest to the spouses Ames null and
void ab initio. It directed the spouses Cadavedo to return the initial
payment and ordered the Register of Deeds to cancel the spouses
Ames’ TCT No. T-4792 and to reissue another title in the name of the
spouses Cadavedo. The case eventually reached this Court via the
spouses Ames’ petition for review on certiorari which this Court
dismissed for lack of merit.
Meanwhile, the spouses Ames defaulted in their obligation with the
DBP. Thus, the DBP caused the publication of a notice of foreclosure
sale of the subject lot as covered by TCT No. T-25984(under the name
of the spouses Ames’ children). Atty. Lacaya immediately informed
the spouses Cadavedo of the foreclosure sale and filed an Affidavit of
Third Party Claim with the Office of the Provincial Sheriff on
September 14, 1981.
With the finality of the judgment in Civil Case No. 1721,Atty. Lacaya
filed on September 21, 1981 a motion for the issuance of a writ of
execution.
On September 23, 1981,and pending the RTC’s resolution of the
motion for the issuance of a writ of execution, the spouses Ames filed
a complaint7 before the RTC against the spouses Cadavedo for
Quieting of Title or Enforcement of Civil Rights due Planters in Good
Faith with prayer for Preliminary Injunction. The spouses Cadavedo,
thru Atty. Lacaya, filed a motion to dismiss on the ground of res
judicata and to cancel TCT No. T-25984 (under the name of the
spouses Ames’ children).
On October 16, 1981, the RTC granted the motion for the issuance of a
writ of execution in Civil Case No. 1721,andthe spouses Cadavedo
were placed in possession of the subject lot on October 24, 1981. Atty.
Lacaya asked for one-half of the subject lot as attorney’s fees. He
caused the subdivision of the subject lot into two equal portions, based
on area, and selected the more valuable and productive half for
himself; and assigned the other half to the spouses Cadavedo.
Unsatisfied with the division, Vicente and his sons-in-law entered the
portion assigned to the respondents and ejected them. The latter
responded by filing a counter-suit for forcible entry before the
Municipal Trial Court (MTC); the ejectment case was docketed as
Civil Case No. 215. This incident occurred while Civil Case No.
3352was pending.
On May 13, 1982, Vicente andAtty. Lacaya entered into an amicable
settlement (compromise agreement)8 in Civil Case No. 215 (the
ejectment case), re-adjusting the area and portion obtained by each.
Atty. Lacaya acquired 10.5383 hectares pursuant to the agreement.
The MTC approved the compromise agreementin a decision dated
June 10, 1982.
Meanwhile, on May 21, 1982, the spouses Cadavedo filed before the
RTC an action against the DBP for Injunction; it was docketed as Civil
Case No. 3443 (Cadavedo v. DBP).The RTC subsequently denied the
petition, prompting the spouses Cadavedo to elevate the case to the
CAvia a petition for certiorari. The CA dismissed the petition in its
decision of January 31, 1984.
The records do not clearly disclose the proceedings subsequent to the
CA decision in Civil Case No. 3443. However, on August 18, 1988,
TCT No. 41051was issued in the name of the spouses Cadavedo
concerning the subject lot.
On August 9, 1988, the spouses Cadavedo filed before the RTC an
action9 against the respondents, assailing the MTC-approved
compromise agreement. The case was docketed as Civil Case No.
4038 and is the root of the present case. The spouses Cadavedo prayed,
among others, that the respondents be ejected from their one-half
portion of the subject lot; that they be ordered to render an accounting
of the produce of this one-half portion from 1981;and that the RTC fix
the attorney’s fees on a quantum meruit basis, with due consideration
of the expenses that Atty. Lacaya incurred while handling the civil
cases.
During the pendency of Civil Case No. 4038, the spouses Cadavedo
executed a Deed of Partition of Estate in favor of their eight children.
Consequently, TCT No. 41051 was cancelled and TCT No. 41690 was
issued in the names of the latter. The records are not clear on the
proceedings and status of Civil Case No. 3352.
The Ruling of the RTC
In the September 17, 1996 decision10 in Civil Case No. 4038, the RTC
declared the contingent fee of 10.5383 hectares as excessive and
unconscionable. The RTC reduced the land area to 5.2691 hectares and
ordered the respondents to vacate and restore the remaining
5.2692hectares to the spouses Cadavedo.
The RTC noted that, as stated in the amended complaint filed by Atty.
Lacaya, the agreed attorney’s fee on contingent basis was ₱2,000.00.
Nevertheless, the RTC also pointed out that the parties novated this
agreement when they executed the compromise agreement in Civil
Case No. 215 (ejectment case), thereby giving Atty. Lacaya one-half
of the subject lot. The RTC added that Vicente’s decision to give Atty.
Lacaya one-half of the subject lot, sans approval of Benita, was a valid
act of administration and binds the conjugal partnership. The RTC
reasoned out that the disposition redounded to the benefit of the
conjugal partnership as it was done precisely to remunerate Atty.
Lacaya for his services to recover the property itself.
These considerations notwithstanding, the RTC considered the one-
half portion of the subject lot, as Atty. Lacaya’s contingent
fee,excessive, unreasonable and unconscionable. The RTC was
convinced that the issues involved in Civil Case No. 1721were not
sufficiently difficult and complicated to command such an excessive
award; neither did it require Atty. Lacaya to devote much of his time
or skill, or to perform extensive research.
Finally, the RTC deemed the respondents’ possession, prior to the
judgment, of the excess portion of their share in the subject lot to be in
good faith. The respondents were thus entitled to receive its fruits.
On the spouses Cadavedo’s motion for reconsideration, the RTC
modified the decision in its resolution11 dated December 27, 1996. The
RTC ordered the respondents to account for and deliver the produce
and income, valued at ₱7,500.00 per annum, of the 5.2692hectares that
the RTC ordered the spouses Amesto restore to the spouses Cadavedo,
from October 10, 1988 until final restoration of the premises.
The respondents appealed the case before the CA.
The Ruling of the CA
In its decision12 dated October 11, 2005, the CA reversed and set aside
the RTC’s September 17, 1996 decision and maintained the partition
and distribution of the subject lot under the compromise agreement. In
so ruling, the CA noted the following facts: (1) Atty. Lacaya served as
the spouses Cadavedo’s counsel from 1969 until 1988,when the latter
filed the present case against Atty. Lacaya; (2) during the nineteen (19)
years of their attorney-client relationship, Atty. Lacaya represented the
spouses Cadavedo in three civil cases –Civil Case No. 1721, Civil
Case No. 3352, and Civil Case No. 3443; (3) the first civil case lasted
for twelve years and even reached this Court, the second civil case
lasted for seven years, while the third civil case lasted for six years and
went all the way to the CA;(4) the spouses Cadavedo and Atty. Lacaya
entered into a compromise agreement concerning the division of the
subject lot where Atty. Lacaya ultimately agreed to acquire a smaller
portion; (5) the MTC approved the compromise agreement; (6) Atty.
Lacaya defrayed all of the litigation expenses in Civil Case No. 1721;
and (7) the spouses Cadavedo expressly recognized that Atty. Lacaya
served them in several cases.
Considering these established facts and consistent with Canon 20.01 of
the Code of Professional Responsibility (enumerating the factors that
should guide the determination of the lawyer’s fees), the CA ruled that
the time spent and the extent of the services Atty. Lacaya rendered for
the spouses Cadavedo in the three cases, the probability of him losing
other employment resulting from his engagement, the benefits
resulting to the spouses Cadavedo, and the contingency of his fees
justified the compromise agreement and rendered the agreed fee under
the compromise agreement reasonable.
The Petition
In the present petition, the petitioners essentially argue that the CA
erred in: (1) granting the attorney’s fee consisting of one-half or
10.5383 hectares of the subject lot to Atty. Lacaya, instead of
confirming the agreed contingent attorney’s fees of ₱2,000.00; (2) not
holding the respondents accountable for the produce, harvests and
income of the 10.5383-hectare portion (that they obtained from the
spouses Cadavedo) from 1988 up to the present; and (3) upholding the
validity of the purported oral contract between the spouses Cadavedo
and Atty. Lacaya when it was champertous and dealt with property
then still subject of Civil Case No. 1721.13
The petitioners argue that stipulations on a lawyer’s compensation for
professional services, especially those contained in the pleadings filed
in courts, control the amount of the attorney’s fees to which the lawyer
shall be entitled and should prevail over oral agreements. In this case,
the spouses Cadavedo and Atty. Lacaya agreed that the latter’s
contingent attorney’s fee was ₱2,000.00 in cash, not one-half of the
subject lot. This agreement was clearly stipulated in the amended
complaint filed in Civil Case No. 1721. Thus, Atty. Lacaya is bound
by the expressly stipulated fee and cannot insist on unilaterally
changing its terms without violating their contract.
The petitioners add that the one-half portion of the subject lot as Atty.
Lacaya’s contingent attorney’s fee is excessive and unreasonable.
They highlight the RTC’s observations and argue that the issues
involved in Civil Case No. 1721, pursuant to which the alleged
contingent fee of one-half of the subject lot was agreed by the parties,
were not novel and did not involve difficult questions of law; neither
did the case require much of Atty. Lacaya’s time, skill and effort in
research. They point out that the two subsequent civil cases should not
be considered in determining the reasonable contingent fee to which
Atty. Lacaya should be entitled for his services in Civil Case No.
1721,as those cases had not yet been instituted at that time. Thus, these
cases should not be considered in fixing the attorney’s fees. The
petitioners also claim that the spouses Cadavedo concluded separate
agreements on the expenses and costs for each of these subsequent
cases, and that Atty. Lacaya did not even record any attorney’s lien in
the spouses Cadavedo’s TCT covering the subject lot.
The petitioners further direct the Court’s attention to the fact that Atty.
Lacaya,in taking over the case from Atty. Bandal, agreed to defray all
of the litigation expenses in exchange for one-half of the subject lot
should they win the case. They insist that this agreement is a
champertous contract that is contrary to public policy, prohibited by
law for violation of the fiduciary relationship between a lawyer and a
client.
Finally, the petitioners maintain that the compromise agreement in
Civil Case No. 215 (ejectment case) did not novate their original
stipulated agreement on the attorney’s fees. They reason that Civil
Case No. 215 did not decide the issue of attorney’s fees between the
spouses Cadavedo and Atty. Lacaya for the latter’s services in Civil
Case No. 1721.
The Case for the Respondents
In their defense,14 the respondents counter that the attorney’s fee
stipulated in the amended complaint was not the agreed fee of Atty.
Lacaya for his legal services. They argue that the questioned
stipulation for attorney’s fees was in the nature of a penalty that, if
granted, would inure to the spouses Cadavedo and not to Atty. Lacaya.
The respondents point out that: (1) both Vicente and Atty. Lacaya
caused the survey and subdivision of the subject lot immediately after
the spouses Cadavedo reacquired its possession with the RTC’s
approval of their motion for execution of judgment in Civil Case No.
1721; (2) Vicente expressly ratified and confirmed the agreement on
the contingent attorney’s fee consisting of one-half of the subject lot;
(3) the MTC in Civil Case No. 215 (ejectment case) approved the
compromise agreement; (4) Vicente is the legally designated
administrator of the conjugal partnership, hence the compromise
agreement ratifying the transfer bound the partnership and could not
have been invalidated by the absence of Benita’s acquiescence; and (5)
the compromise agreement merely inscribed and ratified the earlier
oral agreement between the spouses Cadavedo and Atty. Lacaya which
is not contrary to law, morals, good customs, public order and public
policy.
While the case is pending before this Court, Atty. Lacaya died.15 He
was substituted by his wife -Rosa -and their children –Victoriano D.L.
Lacaya, Jr., Rosevic Lacaya-Ocampo, Reymar L. Lacaya, Marcelito L.
Lacaya, Raymundito L. Lacaya, Laila Lacaya-Matabalan, Marivic
Lacaya-Barba, Rosalie L. Lacaya and Ma. Vic-Vic Lacaya-
Camaongay.16
The Court’s Ruling
We resolve to GRANT the petition.
The subject lot was the core of four successive and overlapping cases
prior to the present controversy. In three of these cases, Atty. Lacaya
stood as the spouses Cadavedo’s counsel. For ease of discussion, we
summarize these cases (including the dates and proceedings pertinent
to each) as follows:
Civil Case No. 1721 – Cadavedo v. Ames (Sum of money and/or
voiding of contract of sale of homestead), filed on January 10, 1967.
The writ of execution was granted on October 16, 1981.
Civil Case No. 3352 – Ames v. Cadavedo (Quieting of Title and/or
Enforcement of Civil Rights due Planters in Good Faith with
Application for Preliminary injunction), filed on September 23, 1981.
Civil Case No. 3443 – Cadavedo v. DBP (Action for Injunction with
Preliminary Injunction), filed on May 21, 1982.
Civil Case No. 215 –Atty. Lacaya v. Vicente Cadavedo, et. al.
(Ejectment Case), filed between the latter part of 1981 and early part
of 1982. The parties executed the compromise agreement on May 13,
1982.
Civil Case No. 4038 –petitioners v. respondents (the present case).
The agreement on attorney’s fee
consisting of one-half of the subject
lot is void; the petitioners are entitled
to recover possession
The core issue for our resolution is whether the attorney’s fee
consisting of one-half of the subject lot is valid and reasonable, and
binds the petitioners. We rule in the NEGATIVE for the reasons
discussed below.
A. The written agreement providing for
a contingent fee of ₱2,000.00 should prevail
over the oral agreement providing for one-
half of the subject lot
The spouses Cadavedo and Atty. Lacaya agreed on a contingent fee of
₱2,000.00 and not, as asserted by the latter, one-half of the subject lot.
The stipulation contained in the amended complaint filed by Atty.
Lacaya clearly stated that the spouses Cadavedo hired the former on a
contingency basis; the Spouses Cadavedo undertook to pay their
lawyer ₱2,000.00 as attorney’s fees should the case be decided in their
favor.
Contrary to the respondents’ contention, this stipulation is not in the
nature of a penalty that the court would award the winning party, to be
paid by the losing party. The stipulation is a representation to the court
concerning the agreement between the spouses Cadavedo and Atty.
Lacaya, on the latter’s compensation for his services in the case; it is
not the attorney’s fees in the nature of damages which the former prays
from the court as an incident to the main action.
At this point, we highlight that as observed by both the RTC and the
CA and agreed as well by both parties, the alleged contingent fee
agreement consisting of one-half of the subject lot was not reduced to
writing prior to or, at most, at the start of Atty. Lacaya’s engagement
as the spouses Cadavedo’s counsel in Civil Case No. 1721.An
agreement between the lawyer and his client, providing for the
former’s compensation, is subject to the ordinary rules governing
contracts in general. As the rules stand, controversies involving written
and oral agreements on attorney’s fees shall be resolved in favor of the
former.17 Hence, the contingency fee of ₱2,000.00 stipulated in the
amended complaint prevails over the alleged oral contingency fee
agreement of one-half of the subject lot.
B. The contingent fee agreement between
the spouses Cadavedo and Atty. Lacaya,
awarding the latter one-half of the subject
lot, is champertous
Granting arguendo that the spouses Cadavedo and Atty. Lacaya indeed
entered into an oral contingent fee agreement securing to the latter
one-half of the subject lot, the agreement is nevertheless void.
In their account, the respondents insist that Atty. Lacaya agreed to
represent the spouses Cadavedo in Civil Case No. 1721 and assumed
the litigation expenses, without providing for reimbursement, in
exchange for a contingency fee consisting of one-half of the subject
lot. This agreement is champertous and is contrary to public policy.18
Champerty, along with maintenance (of which champerty is an
aggravated form), is a common law doctrine that traces its origin to the
medieval period.19 The doctrine of maintenance was directed "against
wanton and in officious intermeddling in the disputes of others in
which the intermeddler has no interest whatever, and where the
assistance rendered is without justification or excuse."20 Champerty,
on the other hand, is characterized by "the receipt of a share of the
proceeds of the litigation by the intermeddler."21 Some common law
court decisions, however, add a second factor in determining
champertous contracts, namely, that the lawyer must also, "at his own
expense maintain, and take all the risks of, the litigation."22
The doctrines of champerty and maintenance were created in response
"to medieval practice of assigning doubtful or fraudulent claims to
persons of wealth and influence in the expectation that such
individuals would enjoy greater success in prosecuting those claims in
court, in exchange for which they would receive an entitlement to the
spoils of the litigation."23 "In order to safeguard the administration of
justice, instances of champerty and maintenance were made subject to
criminal and tortuous liability and a common law rule was developed,
striking down champertous agreements and contracts of maintenance
as being unenforceable on the grounds of public policy."24
In this jurisdiction, we maintain the rules on champerty, as adopted
from American decisions, for public policy considerations.25 As
matters currently stand, any agreement by a lawyer to "conduct the
litigation in his own account, to pay the expenses thereof or to save his
client therefrom and to receive as his fee a portion of the proceeds of
the judgment is obnoxious to the law."26 The rule of the profession that
forbids a lawyer from contracting with his client for part of the thing in
litigation in exchange for conducting the case at the lawyer’s expense
is designed to prevent the lawyer from acquiring an interest between
him and his client. To permit these arrangements is to enable the
lawyer to "acquire additional stake in the outcome of the action which
might lead him to consider his own recovery rather than that of his
client or to accept a settlement which might take care of his interest in
the verdict to the sacrifice of that of his client in violation of his duty
of undivided fidelity to his client’s cause."27
In Bautista v. Atty. Gonzales,28 the Court struck down the contingent
fee agreement between therein respondent Atty. Ramon A. Gonzales
and his client for being contrary to public policy. There, the Court held
that an reimbursement of litigation expenses paid by the former is
against public policy, especially if the lawyer has agreed to carry on
the action at his expense in consideration of some bargain to have a
part of the thing in dispute. It violates the fiduciary relationship
between the lawyer and his client.29
In addition to its champertous character, the contingent fee
arrangement in this case expressly transgresses the Canons of
Professional Ethics and, impliedly, the Code of Professional
Responsibility.30 Under Rule 42 of the Canons of Professional Ethics,
a lawyer may not properly agree with a client that the lawyer shall pay
or beat the expense of litigation.31 The same reasons discussed above
underlie this rule.
C. The attorney’s fee consisting of
one-half of the subject lot is excessive
and unconscionable
We likewise strike down the questioned attorney’s fee and declare it
void for being excessive and unconscionable.1âwphi1 The contingent
fee of one-half of the subject lot was allegedly agreed to secure the
services of Atty. Lacaya in Civil Case No. 1721.Plainly, it was
intended for only one action as the two other civil cases had not yet
been instituted at that time. While Civil Case No. 1721 took twelve
years to be finally resolved, that period of time, as matters then stood,
was not a sufficient reason to justify a large fee in the absence of any
showing that special skills and additional work had been involved. The
issue involved in that case, as observed by the RTC(and with which
we agree), was simple and did not require of Atty. Lacaya extensive
skill, effort and research. The issue simply dealt with the prohibition
against the sale of a homestead lot within five years from its
acquisition.
That Atty. Lacaya also served as the spouses Cadavedo’s counsel in
the two subsequent cases did not and could not otherwise justify an
attorney’s fee of one-half of the subject lot. As assertedby the
petitioners, the spouses Cadavedo and Atty. Lacaya made separate
arrangements for the costs and expenses foreach of these two cases.
Thus, the expenses for the two subsequent cases had been considered
and taken cared of Based on these considerations, we therefore find
one-half of the subject lot as attorney’s fee excessive and
unreasonable.
D. Atty. Lacaya’s acquisition of
the one-half portion contravenes
Article 1491 (5) of the Civil Code
Article 1491 (5) of the Civil Code forbids lawyers from acquiring, by
purchase or assignment, the property that has been the subject of
litigation in which they have taken part by virtue of their
profession.32 The same proscription is provided under Rule 10 of the
Canons of Professional Ethics.33
A thing is in litigation if there is a contest or litigation over it in court
or when it is subject of the judicial action.34 Following this definition,
we find that the subject lot was still in litigation when Atty. Lacaya
acquired the disputed one-half portion. We note in this regard the
following established facts:(1)on September 21, 1981, Atty. Lacaya
filed a motion for the issuance of a writ of execution in Civil Case No.
1721; (2) on September 23, 1981, the spouses Ames filed Civil Case
No. 3352 against the spouses Cadavedo; (3)on October 16, 1981, the
RTC granted the motion filed for the issuance of a writ of execution in
Civil Case No. 1721 and the spouses Cadavedo took possession of the
subject lot on October 24, 1981; (4) soon after, the subject lot was
surveyed and subdivided into two equal portions, and Atty. Lacaya
took possession of one of the subdivided portions; and (5) on May 13,
1982, Vicente and Atty. Lacaya executed the compromise agreement.
From these timelines, whether by virtue of the alleged oral contingent
fee agreement or an agreement subsequently entered into, Atty. Lacaya
acquired the disputed one-half portion (which was after October 24,
1981) while Civil Case No. 3352 and the motion for the issuance of a
writ of execution in Civil Case No. 1721were already pending before
the lower courts. Similarly, the compromise agreement, including the
subsequent judicial approval, was effected during the pendency of
Civil Case No. 3352. In all of these, the relationship of a lawyer and a
client still existed between Atty. Lacaya and the spouses Cadavedo.
Thus, whether we consider these transactions –the transfer of the
disputed one-half portion and the compromise agreement –
independently of each other or resulting from one another, we find
them to be prohibited and void35 by reason of public policy.36 Under
Article 1409 of the Civil Code, contracts which are contrary to public
policy and those expressly prohibited or declared void by law are
considered in existent and void from the beginning.37
What did not escape this Court’s attention is the CA’s failure to note
that the transfer violated the provisions of Article 1491(5) of the Civil
Code, although it recognized the concurrence of the transfer and the
execution of the compromise agreement with the pendency of the two
civil cases subsequent to Civil Case No. 1721.38 In reversing the RTC
ruling, the CA gave weight to the compromise agreement and in so
doing, found justification in the unproved oral contingent fee
agreement.
While contingent fee agreements are indeed recognized in this
jurisdiction as a valid exception to the prohibitions under Article
1491(5) of the Civil Code,39 contrary to the CA’s position, however,
this recognition does not apply to the present case. A contingent fee
contract is an agreement in writing where the fee, often a fixed
percentage of what may be recovered in the action, is made to depend
upon the success of the litigation.40 The payment of the contingent fee
is not made during the pendency of the litigation involving the client’s
property but only after the judgment has been rendered in the case
handled by the lawyer.41
In the present case, we reiterate that the transfer or assignment of the
disputed one-half portion to Atty. Lacaya took place while the subject
lot was still under litigation and the lawyer-client relationship still
existed between him and the spouses Cadavedo. Thus, the general
prohibition provided under Article 1491 of the Civil Code, rather than
the exception provided in jurisprudence, applies. The CA seriously
erred in upholding the compromise agreement on the basis of the
unproved oral contingent fee agreement.
Notably, Atty. Lacaya, in undertaking the spouses Cadavedo’s cause
pursuant to the terms of the alleged oral contingent fee agreement, in
effect, became a co-proprietor having an equal, if not more, stake as
the spouses Cadavedo. Again, this is void by reason of public policy; it
undermines the fiduciary relationship between him and his clients.42
E.The compromise agreement could not
validate the void oral contingent fee
agreement; neither did it supersede the
written contingent fee agreement
The compromise agreement entered into between Vicente and Atty.
Lacaya in Civil Case No. 215 (ejectment case) was intended to ratify
and confirm Atty. Lacaya’s acquisition and possession of the disputed
one-half portion which were made in violation of Article 1491 (5) of
the Civil Code. As earlier discussed, such acquisition is void; the
compromise agreement, which had for its object a void transaction,
should be void.
A contract whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy is in existent and void
from the beginning.43 It can never be ratified44 nor the action or
defense for the declaration of the in existence of the contract
prescribe;45 and any contract directly resulting from such illegal
contract is likewise void and in existent.46
Consequently, the compromise agreement did not supersede the
written contingent fee agreement providing for attorney’s fee of
₱2,000.00; neither did it preclude the petitioners from questioning its
validity even though Vicente might have knowingly and voluntarily
acquiesced thereto and although the MTC approved it in its June 10,
1982 decision in the ejectment case. The MTC could not have acquired
jurisdiction over the subject matter of the void compromise agreement;
its judgment in the ejectment case could not have attained finality and
can thus be attacked at any time. Moreover, an ejectment case
concerns itself only with the issue of possession de facto; it will not
preclude the filing of a separate action for recovery of possession
founded on ownership. Hence, contrary to the CA’s position, the
petitioners–in filing the present action and praying for, among others,
the recovery of possession of the disputed one-half portion and for
judicial determination of the reasonable fees due Atty. Lacaya for his
services –were not barred by the compromise agreement.
Atty. Lacaya is entitled to receive attorney’s fees on a quantum meruit
basis
In view of their respective assertions and defenses, the parties, in
effect, impliedly set aside any express stipulation on the attorney’s
fees, and the petitioners, by express contention, submit the
reasonableness of such fees to the court’s discretion. We thus have to
fix the attorney’s fees on a quantum meruit basis.
"Quantum meruit—meaning ‘as much as he deserves’—is used as
basis for determining a lawyer’s professional fees in the absence of a
contract x x x taking into account certain factors in fixing the amount
of legal fees."47 "Its essential requisite is the acceptance of the benefits
by one sought to be charged for the services rendered under
circumstances as reasonably to notify him that the lawyer performing
the task was expecting to be paid compensation"48 for it. The doctrine
of quantum meruit is a device to prevent undue enrichment based on
the equitable postulate that it is unjust for a person to retain benefit
without paying for it.49
Under Section 24, Rule 138 of the Rules of Court50 and Canon 20 of
the Code of Professional Responsibility,51 factors such as the
importance of the subject matter of the controversy, the time spent and
the extent of the services rendered, the customary charges for similar
services, the amount involved in the controversy and the benefits
resulting to the client from the service, to name a few, are considered
in determining the reasonableness of the fees to which a lawyer is
entitled.
In the present case, the following considerations guide this Court in
considering and setting Atty. Lacaya’s fees based on quantum meruit:
(1) the questions involved in these civil cases were not novel and did
not require of Atty. Lacaya considerable effort in terms of time, skill
or the performance of extensive research; (2) Atty. Lacaya rendered
legal services for the Spouses Cadavedo in three civil cases beginning
in 1969 until 1988 when the petitioners filed the instant case; (3) the
first of these civil cases (Cadavedo v. Ames) lasted for twelve years
and reaching up to this Court; the second (Ames v. Cadavedo) lasted
for seven years; and the third (Cadavedo and Lacaya v. DBP) lasted
for six years, reaching up to the CA; and (4) the property subject of
these civil cases is of a considerable size of 230,765 square meters or
23.0765 hectares.
All things considered, we hold as fair and equitable the RTC’s
considerations in appreciating the character of the services that Atty.
Lacaya rendered in the three cases, subject to modification on
valuation. We believe and so hold that the respondents are entitled to
two (2) hectares (or approximately one-tenth [1/10] of the subject lot),
with the fruits previously received from the disputed one-half portion,
as attorney’s fees. They shall return to the petitioners the remainder of
the disputed one-half portion.
The allotted portion of the subject lot properly recognizes that
litigation should be for the benefit of the client, not the lawyer,
particularly in a legal situation when the law itself holds clear and
express protection to the rights of the client to the disputed property (a
homestead lot). Premium consideration, in other words, is on the rights
of the owner, not on the lawyer who only helped the owner protect his
rights. Matters cannot be the other way around; otherwise, the lawyer
does indeed effectively acquire a property right over the disputed
property. If at all, due recognition of parity between a lawyer and a
client should be on the fruits of the disputed property, which in this
case, the Court properly accords.
WHEREFORE, in view of these considerations, we hereby GRANT
the petition. We AFFIRM the decision dated September 17, 1996 and
the resolution dated December 27, 1996of the Regional Trial Court of
Dipolog City, Branch 10,in Civil Case No. 4038, with the
MODIFICATION that the respondents, the spouses Victorino (Vic) T.
Lacaya and Rosa Legados, are entitled to two (2) hectares (or
approximately one-tenth [1/10] of the subject lot) as attorney’s fees.
The fruits that the respondents previously received from the disputed
one-half portion shall also form part of the attorney’s fees. We hereby
ORDER the respondents to return to the petitioners the remainder of
the 10.5383-hectare portion of the subject lot that Atty. Vicente
Lacaya acquired pursuant to the compromise agreement.
SO ORDERED.
A.C. No. 5299 August 19, 2003
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator
and Chief, Public Information Office, Complainant,
vs.
ATTY. RIZALINO T. SIMBILLO, Respondent.
x-----------------------x
G.R. No. 157053 August 19, 2003
ATTY. RIZALINO T. SIMBILLO, Petitioner,
vs.
IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL
G. KHAN, JR., in his capacity as Assistant Court Administrator
and Chief, Public Information Office, Respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that
appeared in the July 5, 2000 issue of the newspaper, Philippine Daily
Inquirer, which reads: "ANNULMENT OF MARRIAGE Specialist
532-4333/521-2667."1
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information
Office of the Supreme Court, called up the published telephone
number and pretended to be an interested party. She spoke to Mrs.
Simbillo, who claimed that her husband, Atty. Rizalino Simbillo, was
an expert in handling annulment cases and can guarantee a court
decree within four to six months, provided the case will not involve
separation of property or custody of children. Mrs. Simbillo also said
that her husband charges a fee of P48,000.00, half of which is payable
at the time of filing of the case and the other half after a decision
thereon has been rendered.
Further research by the Office of the Court Administrator and the
Public Information Office revealed that similar advertisements were
published in the August 2 and 6, 2000 issues of the Manila Bulletin
and August 5, 2000 issue of The Philippine Star.2
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as
Assistant Court Administrator and Chief of the Public Information
Office, filed an administrative complaint against Atty. Rizalino T.
Simbillo for improper advertising and solicitation of his legal services,
in violation of Rule 2.03 and Rule 3.01 of the Code of Professional
Responsibility and Rule 138, Section 27 of the Rules of Court.3
In his answer, respondent admitted the acts imputed to him, but argued
that advertising and solicitation per se are not prohibited acts; that the
time has come to change our views about the prohibition on
advertising and solicitation; that the interest of the public is not served
by the absolute prohibition on lawyer advertising; that the Court can
lift the ban on lawyer advertising; and that the rationale behind the
decades-old prohibition should be abandoned. Thus, he prayed that he
be exonerated from all the charges against him and that the Court
promulgate a ruling that advertisement of legal services offered by a
lawyer is not contrary to law, public policy and public order as long as
it is dignified.4
The case was referred to the Integrated Bar of the Philippines for
investigation, report and recommendation.5 On June 29, 2002, the IBP
Commission on Bar Discipline passed Resolution No. XV-2002-
306,6 finding respondent guilty of violation of Rules 2.03 and 3.01 of
the Code of Professional Responsibility and Rule 138, Section 27 of
the Rules of Court, and suspended him from the practice of law for one
(1) year with the warning that a repetition of similar acts would be
dealt with more severely. The IBP Resolution was noted by this Court
on November 11, 2002.7
In the meantime, respondent filed an Urgent Motion for
Reconsideration,8 which was denied by the IBP in Resolution No. XV-
2002-606 dated October 19, 20029
Hence, the instant petition for certiorari, which was docketed as G.R.
No. 157053 entitled, "Atty. Rizalino T. Simbillo, Petitioner versus IBP
Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court
Administrator and Chief, Public Information Office, Respondents."
This petition was consolidated with A.C. No. 5299 per the Court’s
Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to
manifest whether or not they were willing to submit the case for
resolution on the basis of the pleadings.10 Complainant filed his
Manifestation on April 25, 2003, stating that he is not submitting any
additional pleading or evidence and is submitting the case for its early
resolution on the basis of pleadings and records thereof. 11 Respondent,
on the other hand, filed a Supplemental Memorandum on June 20,
2003.
We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-
2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. – A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
Rule 3.01. – A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court,
grounds therefor. – A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice or other gross misconduct in such office, grossly
immoral conduct or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required to
take before the admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a
business.12 It is a profession in which duty to public service, not
money, is the primary consideration. Lawyering is not primarily meant
to be a money-making venture, and law advocacy is not a capital that
necessarily yields profits.13 The gaining of a livelihood should be a
secondary consideration.14 The duty to public service and to the
administration of justice should be the primary consideration of
lawyers, who must subordinate their personal interests or what they
owe to themselves.15 The following elements distinguish the legal
profession from a business:
1. A duty of public service, of which the emolument is a by-product,
and in which one may attain the highest eminence without making
much money;
2. A relation as an "officer of the court" to the administration of justice
involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor, fairness,
and unwillingness to resort to current business 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
Court’s 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 Court’s
authority.
What adds to the gravity of respondent’s acts is that in advertising
himself as a self-styled "Annulment of Marriage Specialist," he
wittingly or unwittingly erodes and undermines not only the stability
but also the sanctity of an institution still considered sacrosanct despite
the contemporary climate of permissiveness in our society. Indeed, in his name to be published in a law list the conduct, management, or
assuring prospective clients that an annulment may be obtained in four contents of which are calculated or likely to deceive or injure the
to six months from the time of the filing of the case,19 he in fact public or the bar, or to lower dignity or standing of the profession.
encourages people, who might have otherwise been disinclined and
The use of an ordinary simple professional card is also permitted. The
would have refrained from dissolving their marriage bonds, to do so.
card may contain only a statement of his name, the name of the law
Nonetheless, the solicitation of legal business is not altogether firm which he is connected with, address, telephone number and
proscribed. However, for solicitation to be proper, it must be special branch of law practiced. The publication of a simple
compatible with the dignity of the legal profession. If it is made in a announcement of the opening of a law firm or of changes in the
modest and decorous manner, it would bring no injury to the lawyer partnership, associates, firm name or office address, being for the
and to the bar.20 Thus, the use of simple signs stating the name or convenience of the profession, is not objectionable. He may likewise
names of the lawyers, the office and residence address and fields of have his name listed in a telephone directory but not under a
practice, as well as advertisement in legal periodicals bearing the same designation of special branch of law. (emphasis and italics supplied)
brief data, are permissible. Even the use of calling cards is now
WHEREFORE, in view of the foregoing, respondent RIZALINO T.
acceptable.21 Publication in reputable law lists, in a manner consistent
SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of
with the standards of conduct imposed by the canon, of brief
the Code of Professional Responsibility and Rule 138, Section 27 of
biographical and informative data is likewise allowable. As explicitly
the Rules of Court. He is SUSPENDED from the practice of law for
stated in Ulep v. Legal Clinic, Inc.:22
ONE (1) YEAR effective upon receipt of this Resolution. He is
Such data must not be misleading and may include only a statement of likewise STERNLY WARNED that a repetition of the same or similar
the lawyer’s name and the names of his professional associates; offense will be dealt with more severely.
addresses, telephone numbers, cable addresses; branches of law
Let copies of this Resolution be entered in his record as attorney and
practiced; date and place of birth and admission to the bar; schools
be furnished the Integrated Bar of the Philippines and all courts in the
attended with dates of graduation, degrees and other educational
country for their information and guidance.
distinctions; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar SO ORDERED.
associations and committees thereof, in legal and scientific societies
and legal fraternities; the fact of listings in other reputable law lists; Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
the names and addresses of references; and, with their written consent, Davide, Jr., C.J., (Chairman ), abroad, on official business.
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
A.C. No. 6622 July 10, 2012
MIGUEL G. VILLATUYA, Complainant,
vs.
ATTY. BEDE S. TABALINGCOS, Respondent.
DECISION
PER CURIAM:
In this Complaint for disbarment filed on 06 December 2004 with the
Office or the Bar Confidant, complainant Manuel G. Villatuya
(complainant) charges Atty. Bcde S. 'L1halingcos (resrondent) with
unlawful solicitation of cases, violation of the ('ode or Professional
Responsibility for nonpayment of fees to complainant, and gross
immorality for marrying two other women while respondent’s first
marriage was subsisting.1
In a Resolution2 dated 26 January 2005, the Second Division of this
Court required respondent to file a Comment, which he did on 21
March 2005.3 The Complaint was referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation within
sixty (60) days from receipt of the record.4
On 23 June 2005, the Commission on Bar Discipline of the IBP
(Commission) issued a Notice5 setting the mandatory conference of the
administrative case on 05 July 2005. During the conference,
complainant appeared, accompanied by his counsel and respondent.
They submitted for resolution three issues to be resolved by the
Commission as follows:
1. Whether respondent violated the Code of Professional
Responsibility by nonpayment of fees to complainant
2. Whether respondent violated the rule against unlawful solicitation,
and
3. Whether respondent is guilty of gross immoral conduct for having
married thrice.6
The Commission ordered the parties to submit their respective verified
Position Papers. Respondent filed his verified Position Paper,7 on 15
July 2005 while complainant submitted his on 01 August 2005.8
Complainant’s Accusations
Complainant averred that on February 2002, he was employed by
respondent as a financial consultant to assist the latter on technical and
financial matters in the latter’s numerous petitions for corporate
rehabilitation filed with different courts. Complainant claimed that
they had a verbal agreement whereby he would be entitled to ₱ 50,000
for every Stay Order issued by the court in the cases they would
handle, in addition to ten percent (10%) of the fees paid by their
clients. He alleged that, from February to December 2002, respondent
was able to rake in millions of pesos from the corporate rehabilitation
cases they were working on together. Complainant also claimed that
he was entitled to the amount of ₱ 900,000 for the 18 Stay Orders
issued by the courts as a result of his work with respondent, and a total
of ₱ 4,539,000 from the fees paid by their clients.9 Complainant
appended to his Complaint several annexes supporting the
computation of the fees he believes are due him.
Complainant alleged that respondent engaged in unlawful solicitation
of cases in violation of Section 27 of the Code of Professional
Responsibility. Allegedly respondent set up two financial consultancy
firms, Jesi and Jane Management, Inc. and Christmel Business Link,
Inc., and used them as fronts to advertise his legal services and solicit
cases. Complainant supported his allegations by attaching to his
Position Paper the Articles of Incorporation of Jesi and Jane,10 letter-
proposals to clients signed by respondent on various dates11 and proofs
of payment made to the latter by their clients.12
On the third charge of gross immorality, complainant accused
respondent of committing two counts of bigamy for having married
two other women while his first marriage was subsisting. He submitted
a Certification dated 13 July 2005 issued by the Office of the Civil
Registrar General-National Statistics Office (NSO) certifying that
Bede S. Tabalingcos, herein respondent, contracted marriage thrice:
first, on 15 July 1980 with Pilar M. Lozano, which took place in
Dasmarinas, Cavite; the second time on 28 September 1987 with Ma.
Rowena Garcia Piñon in the City of Manila; and the third on 07
September 1989 with Mary Jane Elgincolin Paraiso in Ermita,
Manila.13
Respondent’s Defense
In his defense, respondent denied the charges against him. He asserted
that complainant was not an employee of his law firm – Tabalingcos
and Associates Law Office14 – but of Jesi and Jane Management, Inc.,
where the former is a major stockholder.15 Respondent alleged that
complainant was unprofessional and incompetent in performing his job
as a financial consultant, resulting in the latter’s dismissal of many
rehabilitation plans they presented in their court cases.16 Respondent
also alleged that there was no verbal agreement between them
regarding the payment of fees and the sharing of professional fees paid
by his clients. He proffered documents showing that the salary of
complainant had been paid.17
As to the charge of unlawful solicitation, respondent denied
committing any. He contended that his law firm had an agreement with
Jesi and Jane Management, Inc., whereby the firm would handle the
legal aspect of the corporate rehabilitation case; and that the latter
would attend to the financial aspect of the case’ such as the preparation
of the rehabilitation plans to be presented in court. To support this
contention, respondent attached to his Position Paper a Joint Venture
Agreement dated 10 December 2005 entered into by Tabalingcos and
Associates Law Offices and Jesi and Jane Management, Inc.;18 and an
Affidavit executed by Leoncio Balena, Vice-President for Operations
of the said company.19
On the charge of gross immorality, respondent assailed the Affidavit
submitted by William Genesis, a dismissed messenger of Jesi and Jane
Management, Inc., as having no probative value, since it had been
retracted by the affiant himself.20 Respondent did not specifically
address the allegations regarding his alleged bigamous marriages with
two other women.
On 09 January 2006, complainant filed a Motion to Admit Copies of 3
Marriage Contracts.21 To the said Motion, he attached the certified true
copies of the Marriage Contracts referred to in the Certification issued
by the NSO.22 The appended Marriage Contracts matched the dates,
places and names of the contracting parties indicated in the earlier
submitted NSO Certification of the three marriages entered into by
respondent. The first marriage contract submitted was a marriage that
took place between respondent and Pilar M. Lozano in Dasmarinas,
Cavite, on 15 July 1980.23 The second marriage contract was between
respondent and Ma. Rowena G. Piñon, and it took place at the
Metropolitan Trial Court Compound of Manila on 28 September
1987.24 The third Marriage Contract referred to a marriage between
respondent and Mary Jane E. Paraiso, and it took place on 7 September
1989 in Ermita, Manila. In the second and third Marriage Contracts,
respondent was described as single under the entry for civil status.
On 16 January 2006, respondent submitted his Opposition to the
Motion to Admit filed by complainant, claiming that the document
was not marked during the mandatory conference or submitted during
the hearing of the case.25 Thus, respondent was supposedly deprived of
the opportunity to controvert those documents.26 He disclosed that
criminal cases for bigamy were filed against him by the complainant
before the Office of the City Prosecutor of Manila. Respondent further
informed the Commission that he had filed a Petition to Declare Null
and Void the Marriage Contract with Rowena Piñon at the Regional
Trial Court (RTC) of Biñan, Laguna, where it was docketed as Civil
Case No. B-3270.27 He also filed another Petition for Declaration of
Nullity of Marriage Contract with Pilar Lozano at the RTC-Calamba,
where it was docketed as Civil Case No. B-3271.28 In both petitions, he
claimed that he had recently discovered that there were Marriage
Contracts in the records of the NSO bearing his name and allegedly
executed with Rowena Piñon and Pilar Lozano on different occasions.
He prayed for their annulment, because they were purportedly null and
void.
On 17 September 2007, in view of its reorganization, the Commission
scheduled a clarificatory hearing on 20 November 2007.29 While
complainant manifested to the Commission that he would not attend
the hearing,30 respondent manifested his willingness to attend and
moved for the suspension of the resolution of the administrative case
against the latter. Respondent cited two Petitions he had filed with the
RTC, Laguna, seeking the nullification of the Marriage Contracts he
discovered to be bearing his name.31
On 10 November 2007, complainant submitted to the Commission
duplicate original copies of two (2) Informations filed with the RTC of
Manila against respondent, entitled "People of the Philippines vs. Atty.
Bede S. Tabalingcos."32 The first criminal case, docketed as Criminal
Case No. 07-257125, was for bigamy for the marriage contracted by
respondent with Ma. Rowena Garcia Piñon while his marriage with
Pilar Lozano was still valid.33 The other one, docketed as Criminal
Case No. 07-257126, charged respondent with having committed
bigamy for contracting marriage with Mary Jane Elgincolin Paraiso
while his marriage with Pilar Lozano was still subsisting.34 Each of the
Informations recommended bail in the amount of P24,000 for his
provisional liberty as accused in the criminal cases.35
On 20 November 2007, only respondent attended the clarificatory
hearing. In the same proceeding, the Commission denied his Motion to
suspend the proceedings pending the outcome of the petitions for
nullification he had filed with the RTC–Laguna. Thus, the
Commission resolved that the administrative case against him be
submitted for resolution.36
IBP’s Report and Recommendation
On 27 February 2008, the Commission promulgated its Report and
Recommendation addressing the specific charges against
respondent.37 The first charge, for dishonesty for the nonpayment of
certain shares in the fees, was dismissed for lack of merit. The
Commission ruled that the charge should have been filed with the
proper courts since it was only empowered to determine respondent’s
administrative liability. On this matter, complainant failed to prove
dishonesty on the part of respondent.38 On the second charge, the
Commission found respondent to have violated the rule on the
solicitation of client for having advertised his legal services and
unlawfully solicited cases. It recommended that he be reprimanded for
the violation. It failed, though, to point out exactly the specific
provision he violated.39
As for the third charge, the Commission found respondent to be guilty
of gross immorality for violating Rules 1.01 and 7.03 of the Code of
Professional Responsibility and Section 27 of Rule 138 of the Rules of
Court. It found that complainant was able to prove through
documentary evidence that respondent committed bigamy twice by
marrying two other women while the latter’s first marriage was
subsisting.40 Due to the gravity of the acts of respondent, the
Commission recommended that he be disbarred, and that his name be
stricken off the roll of attorneys.41
On 15 April 2008, the IBP Board of Governors, through its Resolution
No. XVIII-2008-154, adopted and approved the Report and
Recommendation of the Investigating Commissioner.42 On 01 August
2008, respondent filed a Motion for Reconsideration, arguing that the
recommendation to disbar him was premature. He contends that the
Commission should have suspended the disbarment proceedings
pending the resolution of the separate cases he had filed for the
annulment of the marriage contracts bearing his name as having
entered into those contracts with other women. He further contends
that the evidence proffered by complainant to establish that the latter
committed bigamy was not substantial to merit the punishment of
disbarment. Thus, respondent moved for the reconsideration of the
resolution to disbar him and likewise moved to archive the
administrative proceedings pending the outcome of the Petitions he
separately filed with the RTC of Laguna for the annulment of
Marriage Contracts.43
On 26 June 2011, the IBP Board of Governors denied the Motions for
Reconsideration and affirmed their Resolution dated 15 April 2008
recommending respondent’s disbarment.44
The Court’s Ruling
The Court affirms the recommendations of the IBP.
First Charge:
Dishonesty for nonpayment of share in the fees
While we affirm the IBP’s dismissal of the first charge against
respondent, we do not concur with the rationale behind it.
The first charge of complainant against respondent for the nonpayment
of the former’s share in the fees, if proven to be true is based on an
agreement that is violative of Rule 9.0245 of the Code of Professional
Responsibility. A lawyer is proscribed by the Code to divide or agree
to divide the fees for legal services rendered with a person not licensed
to practice law. Based on the allegations, respondent had agreed to
share with complainant the legal fees paid by clients that complainant
solicited for the respondent. Complainant, however, failed to proffer
convincing evidence to prove the existence of that agreement.
We ruled in Tan Tek Beng v. David46 that an agreement between a
lawyer and a layperson to share the fees collected from clients secured
by the layperson is null and void, and that the lawyer involved may be
disciplined for unethical conduct. Considering that complainant’s
allegations in this case had not been proven, the IBP correctly
dismissed the charge against respondent on this matter.
Second Charge:
Unlawful solicitation of clients
Complainant charged respondent with unlawfully soliciting clients and
advertising legal services through various business entities.
Complainant submitted documentary evidence to prove that Jesi &
Jane Management Inc. and Christmel Business Link, Inc. were owned
and used as fronts by respondent to advertise the latter’s legal services
and to solicit clients. In its Report, the IBP established the truth of
these allegations and ruled that respondent had violated the rule on the
solicitation of clients, but it failed to point out the specific provision
that was breached.
A review of the records reveals that respondent indeed used the
business entities mentioned in the report to solicit clients and to
advertise his legal services, purporting to be specialized in corporate
rehabilitation cases. Based on the facts of the case, he violated Rule
2.0347 of the Code, which prohibits lawyers from soliciting cases for
the purpose of profit.
A lawyer is not prohibited from engaging in business or other lawful
occupation. Impropriety arises, though, when the business is of such a
nature or is conducted in such a manner as to be inconsistent with the
lawyer’s duties as a member of the bar. This inconsistency arises when
the business is one that can readily lend itself to the procurement of
professional employment for the lawyer; or that can be used as a cloak
for indirect solicitation on the lawyer’s behalf; or is of a nature that, if
handled by a lawyer, would be regarded as the practice of law.48
It is clear from the documentary evidence submitted by complainant
that Jesi & Jane Management, Inc., which purports to be a financial
and legal consultant, was indeed a vehicle used by respondent as a
means to procure professional employment; specifically for corporate
rehabilitation cases. Annex "C"49 of the Complaint is a letterhead of
Jesi & Jane
Management, Inc., which proposed an agreement for the engagement
of legal services. The letter clearly states that, should the prospective
client agree to the proposed fees, respondent would render legal
services related to the former’s loan obligation with a bank. This
circumvention is considered objectionable and violates the Code,
because the letter is signed by respondent as President of Jesi & Jane
Management, Inc., and not as partner or associate of a law firm.
Rule 15.0850 of the Code mandates that the lawyer is mandated to
inform the client whether the former is acting as a lawyer or in another
capacity. This duty is a must in those occupations related to the
practice of law. The reason is that certain ethical considerations
governing the attorney-client relationship may be operative in one and
not in the other.51 In this case, it is confusing for the client if it is not
clear whether respondent is offering consultancy or legal services.
Considering, however, that complainant has not proven the degree of
prevalence of this practice by respondent, we affirm the
recommendation to reprimand the latter for violating Rules 2.03 and
15.08 of the Code.
Third Charge:
Bigamy
The third charge that respondent committed bigamy twice is a serious
accusation. To substantiate this allegation, complainant submitted
NSO-certified copies of the Marriage Contracts entered into by
respondent with three (3) different women. The latter objected to the
introduction of these documents, claiming that they were submitted
after the administrative case had been submitted for resolution, thus
giving him no opportunity to controvert them.52 We are not persuaded
by his argument.
We have consistently held that a disbarment case is sui generis. Its
focus is on the qualification and fitness of a lawyer to continue
membership in the bar and not the procedural technicalities in filing
the case. Thus, we explained in Garrido v. Garrido:53
Laws dealing with double jeopardy or with procedure — such as the
verification of pleadings and prejudicial questions, or in this case,
prescription of offenses or the filing of affidavits of desistance by the
complainant — do not apply in the determination of a lawyer's
qualifications and fitness for membership in the Bar. We have so ruled
in the past and we see no reason to depart from this ruling. First,
admission to the practice of law is a component of the administration
of justice and is a matter of public interest because it involves service
to the public. The admission qualifications are also qualifications for
the continued enjoyment of the privilege to practice law. Second, lack
of qualifications or the violation of the standards for the practice of
law, like criminal cases, is a matter of public concern that the State
may inquire into through this Court.
In disbarment proceedings, the burden of proof rests upon the
complainant.1âwphi1 For the court to exercise its disciplinary powers,
the case against the respondent must be established by convincing and
satisfactory proof.54 In this case, complainant submitted NSO-certified
true copies to prove that respondent entered into two marriages while
the latter’s first marriage was still subsisting. While respondent denied
entering into the second and the third marriages, he resorted to vague
assertions tantamount to a negative pregnant. He did not dispute the
authenticity of the NSO documents, but denied that he contracted
those two other marriages. He submitted copies of the two Petitions he
had filed separately with the RTC of Laguna – one in Biñan and the
other in Calamba – to declare the second and the third Marriage
Contracts null and void.55
We find him guilty of gross immorality under the Code.
We cannot give credence to the defense proffered by respondent. He
has not disputed the authenticity or impugned the genuineness of the
NSO-certified copies of the Marriage Contracts presented by
complainant to prove the former’s marriages to two other women aside
from his wife. For purposes of this disbarment proceeding, these
Marriage Contracts bearing the name of respondent are competent and
convincing evidence proving that he committed bigamy, which renders
him unfit to continue as a member of the bar. The documents were
certified by the NSO, which is the official repository of civil registry
records pertaining to the birth, marriage and death of a person. Having
been issued by a government agency, the NSO certification is
accorded much evidentiary weight and carries with it a presumption of
regularity. In this case, respondent has not presented any competent
evidence to rebut those documents.
According to the respondent, after the discovery of the second and the
third marriages, he filed civil actions to annul the Marriage Contracts.
We perused the attached Petitions for Annulment and found that his
allegations therein treated the second and the third marriage contracts
as ordinary agreements, rather than as special contracts contemplated
under the then Civil Code provisions on marriage. He did not invoke
any grounds in the Civil Code provisions on marriage, prior to its
amendment by the Family Code. Respondent’s regard for marriage
contracts as ordinary agreements indicates either his wanton disregard WHEREFORE, this Court resolves the following charges against Atty.
of the sanctity of marriage or his gross ignorance of the law on what Bede S. Tabalingcos as follows:
course of action to take to annul a marriage under the old Civil Code
1. The charge of dishonesty is DISMISSED for lack of merit.
provisions.
2. Respondent is REPRIMANDED for acts of illegal advertisement
What has been clearly established here is the fact that respondent
and solicitation.
entered into marriage twice while his first marriage was still
subsisting. In Bustamante-Alejandro v. Alejandro,56 we held thus: 3. Atty. Bede S. Tabalingcos is DISBARRED for engaging in bigamy,
a grossly immoral conduct.
We have in a number of cases disciplined members of the Bar whom
we found guilty of misconduct which demonstrated a lack of that good Let a copy of this Decision be attached to the personal records of Atty.
moral character required of them not only as a condition precedent for Bede S. Tabalingcos in the Office of the Bar Confidant, and another
their admission to the Bar but, likewise, for their continued copy furnished to the Integrated Bar of the Philippines.
membership therein. No distinction has been made as to whether the
misconduct was committed in the lawyer’s professional capacity or in The Clerk of Court is directed to strike out the name of Bede S.
his private life. This is because a lawyer may not divide his personality Tabalingcos from the Roll of Attorneys.
so as to be an attorney at one time and a mere citizen at another. He is SO ORDERED.
expected to be competent, honorable and reliable at all times since he
who cannot apply and abide by the laws in his private affairs, can
hardly be expected to do so in his professional dealings nor lead others
in doing so. Professional honesty and honor are not to be expected as
the accompaniment of dishonesty and dishonor in other relations. The
administration of justice, in which the lawyer plays an important role
being an officer of the court, demands a high degree of intellectual and
moral competency on his part so that the courts and clients may rightly
repose confidence in him.
Respondent exhibited a deplorable lack of that degree of morality
required of him as a member of the bar. He made a mockery of
marriage, a sacred institution demanding respect and dignity.57 His acts
of committing bigamy twice constituted grossly immoral conduct and
are grounds for disbarment under Section 27, Rule 138 of the Revised
Rules of Court.58
Thus, we adopt the recommendation of the IBP to disbar respondent
and order that his name be stricken from the Roll of Attorneys.
A.M. No. P-03-1690 April 4, 2003 P200.00 before he released to them their Release Orders; asked for
(formerly A.M. OCA IPI No. 00-956-P) amounts in excess of what was necessary for the purchase of stamps
and pocketed the difference; once failed to mail printed matter on July
JUDGE ESTRELLITA M. PAAS, petitioner,
11, 2000 and kept for his own use the amount given to him for the
vs.
purpose; and divulged confidential information to litigants in advance
EDGAR E. ALMARVEZ, respondent.
of its authorized release date for a monetary consideration, thus giving
x-----------------------------x undue advantage or favor to the paying party, in violation of Rep. Act
No. 3019 (The Anti-Graft and Corrupt Practices Act).1
A.M. No. MTJ-01-1363 April 4, 2003
Pasay City MeTC Branch 44 Clerk of Court Pedro C. Doctolero, Jr.,
EDGAR E. ALMARVEZ, petitioner, by his Affidavit,2 and members of the court staff,3 by a Joint Affidavit,
vs. attested that Almarvez failed to maintain the cleanliness in and around
JUDGE ESTRELLITA M. PAAS, respondent. the court premises, and had shown discourtesy in dealing with Judge
x-----------------------------x Paas and his co-employees. Doctolero's affidavit also corroborated
Judge Paas' allegation that Almarvez would merely sign the logbook in
A.M. No. 01-12-02-SC April 4, 2003 the morning and thereafter stay out of the office.
IN RE: USE BY ATTY. RENERIO G. PAAS AS AN OFFICE IN Pasay City Postmaster Emma Z. Espiritu, by Certification dated
HIS PRIVATE PRACTICE OF HIS PROFESSION THE August 2, 2000,4 attested that the alleged printed matter intended to be
OFFICE OF HIS WIFE, PASAY CITY METC JUDGE mailed on July 11, 2000 was not included in the list of registered mails
ESTRELLITA M. PAAS. posted in the Pasay City Post Office on said date.
CARPIO MORALES, J.: Jail Escort Russel S. Hernandez and Jail Officer II Rosendo
Pasay City Metropolitan Trial Court (MeTC), Branch 44 Presiding Macabasag, both assigned to the Pasay City Jail, by their respective
Judge Estrellita M. Paas administratively charged Court Aide/Utility affidavits,5 attested that on several occasions, they saw Almarvez
Worker Edgar E. Almarvez with "discourtesy, disrespect, receive from detention prisoners P100.00 to P200.00 in consideration
insubordination, neglect in performing his duties, disloyalty, of the release of their Release Orders.
solicitation of monetary consideration and gross violation of the Civil Almarvez, by Answer of September 25, 2000,6 denied Judge Paas'
Service Law." The case was docketed as A.M. OCA IPI No. 00-956-P. charges, and alleged that the real reason why Judge Paas filed the case
In her complaint, Judge Paas alleged that Almarvez is discourteous to against him was because she suspected him of helping her husband,
his co-employees, lawyers and party litigants; has failed to maintain Atty. Renerio G. Paas, conceal his marital indiscretions; since she
the cleanliness in and around the court premises despite order to do so, failed to elicit any information from him, she resorted to calling him
thus amounting to insubordination; was, and on several instances, names and other forms of harassment; on September 6, 2000, she
habitually absent from work or made it appear that he reported for hurled at him the following invectives before the other employees of
work by signing the logbook in the morning, only to stay out of the the court: "Walang kuwenta, ahas ka, driver lang kita, pinaasenso kita,
office the whole day; asked from detention prisoners P100.00 to walang utang na loob, pinagtatakpan mo pa ang asawa ko, ulupong;"
and she insisted that he sign a prepared resignation letter, a copy of
which he was not able to keep.
Almarvez added that he had been subjected by Judge Paas to the
following incidents of oppression and abuse of authority: On July 28,
2000, he was called by the Judge to her chambers where she berated
him as follows: "Sinungaling ka, ang dami mong alam, hindi ka
nagsasabi ng totoo sa akin, gago, tanga, pirmahan mo itong
resignation letter, kung hindi kakasuhan kita ng estafa at
falsification;" the next day, the Judge, on seeing him, told him "Bakit
ka nandiyan, mag-leave ka sa Lunes;" and on July 31, 2000, the Judge
called him again to her chambers and told him "Ang kapal ng mukha
mo, pumasok ka pa dito, gago, kaya kita ipinasok dito dahil driver
kita."
Continuing, Almarvez claimed that on July 31, 2000, he reported the
foregoing incidents to Pasay City MeTC Executive Judge Maria
Cancino Erum who advised him to report the same to the Office of the
Clerk of Court; and on August 1, 2000, he executed a sworn statement-
complaint7 against Judge Paas and went to the Office of the Court
Administrator (OCA) to file it, but he was advised to try to talk the
matter over with her who then told him that they should forget all
about it.
On the merits of the charges, Almarvez denied ever requesting for
money in exchange for the release of court orders and alleged that both
Hernandez and Macabasag executed their respective affidavits because
Judge Paas was a principal sponsor at their respective weddings;
Hernandez was in fact indebted to the Judge for helping him cover-up
the escape of a detainee under his charge; the court's mail matters were
always sealed whenever he received them for mailing and he never
tampered with their contents; the alleged unmailed printed matter was
actually posted on June 28, 2000, not on July 11, 2000, via ordinary
instead of registered mail, because the money given to him for the
purpose was insufficient; and on the days when he was out of the
office, he was actually performing personal errands for the judge and
her husband, Atty. Paas, who treated him as their personal driver and
messenger.
As further proof of Judge Paas' oppressive behavior towards him,
Almarvez claimed that she ordered him to undergo a drug test per
Memorandum dated September 7, 2000,8 even if he had no history of
drug abuse on a periodic or continuous basis as shown by the test
results of his examination.9
The Court treated respondent's Answer as a counter-complaint against
Judge Paas and docketed it as A.M. No. MTJ-01-1363.
The two administrative cases were consolidated and referred for
evaluation to the OCA, which assigned them to Executive Judge
Vicente L. Yap of Pasay City RTC, Branch 114 for investigation.
In a separate case for inhibition of Judge Paas in a criminal case, it was
revealed that Judge Paas' husband, private practitioner Atty. Paas, was
using his wife's office as his office address in his law practice, in
support of which were submitted copies of a Notice of Appeal signed
by Atty. Paas, notices from Pasay City RTC Branch 109 and from the
Supreme Court with respect to the case of People vs. Louie Manabat,
et al. (GR Nos. 140536-37) which indicated Atty. Paas' address to be
Room 203, Hall of Justice, Pasay City,10 the office assigned to Pasay
City MeTC, Branch 44.
Pursuant to Sec. 1 of Rule 139-B11 of the Rules of Court which allows
the Supreme Court to motu proprio initiate proceedings for the
discipline of attorneys, this Court resolved to docket the matter as A.M.
No. 01-12-02-SC and to consolidate it with A.M. OCA IPI No. 00-
956-P and AM No. MTJ-01-1363.
In compliance with the December 4, 2001 Resolution12 of the Court en
banc, Judge and Atty. Paas submitted their January 16, 2002 Joint
Affidavit13 wherein they vehemently denied the charge that the latter
was using Room 203 of the Pasay City Hall of Justice as his office
address, they claiming that Atty. Paas actually holds office at 410
Natividad Building, Escolta, Manila with his partner Atty. Herenio
Martinez; Atty. Paas would visit his wife at her office only when he
has a hearing before the Pasay City courts or Prosecutor's Office, or
when he lunches with or fetches her, or when he is a guest during
special occasions such as Christmas party and her birthday which are
celebrated therein; and Judge Paas would never consent nor tolerate
the use of the court for any personal activities. Attached to the Joint
Affidavit were the separate sworn statements of Atty. Paas' law partner
Atty. Herenio E. Martinez14 and secretary Nilda L. Gatdula15 attesting
that he is holding office at the above-said address in Escolta, and the
Joint Affidavit of the Pasay City MeTC Branch 44 court
personnel16 attesting that Atty. Paas' visits to the court are neither
routine nor daily occurrences, and he never used the court in the
practice of his profession.
On January 24, 2002, Judge Paas executed a Supplemental
Affidavit17 wherein she admitted that Atty. Paas did use her office as
his return address for notices and orders in Crim. Case Nos. 98-1197 to
98-1198, "People vs. Louie Manabat y Valencia and Raymond dela
Cruz y Salita," (now docketed in this Court as G.R. Nos. 140536-37),
lodged at the Pasay City RTC, Branch 109, but only to ensure and
facilitate delivery of those notices, but after the cases were terminated,
all notices were sent to his office address in Escolta.
By Resolution of February 12, 2002,18 the Court referred the matter to
the OCA for evaluation, report and recommendation.
After the completion of his investigation of A.M. OCA IPI No. 00-
956-P and A.M. No. MTJ-01-1363, Judge Yap submitted his
Report/Recommendation dated February 28, 2002.19
On March 11, 2002, the OCA submitted its Report on A.M. No. 01-
12-02-SC dated March 1, 2002.20
I. OCA Findings and Recommendations
A. On the charges against Almarvez:
The OCA, for lack of evidence, recommended the dismissal of the
charges against Almarvez of exacting money from detainees, violating
confidentiality of official communication, absence without official
leave, discourtesy and insubordination. Given Almarvez'
unsatisfactory performance ratings for three rating periods covering
January to June 2000,21 July to December 2000,22 and January to April
2001,23 however, the OCA recommended that he be duly penalized
for inefficiency in the performance of his official duties with One (1)
Month suspension without pay, instead of dismissal as warranted under
Memorandum Circular No. 12, s. 1994, his supervisor having failed to
observe the procedure thereunder for dropping of employees from the
rolls, which procedure is quoted at the later portion of this decision.
B. On the charges against Judge Paas:
With respect to the complaint of Almarvez against Judge Paas, the
OCA, for lack of supporting evidence, recommended the dismissal of
the charges of maltreatment, harassment and verbal abuse. It found,
however, that Judge Paas "had used her administrative power of
supervision and control over court personnel for her personal pride,
prejudice and pettiness"24 when she issued her September 7, 2000
Memorandum ordering Alvarez to undergo a drug test after she had
already filed an administrative case against him. It thus concluded that,
in all probability, the purpose of Judge Paas in ordering Almarvez to
undergo a drug test was to fish for evidence to support the
administrative case she had already filed against him.
Accordingly, the OCA recommended that Judge Paas be found guilty
of simple misconduct in office, and be penalized with reprimand with
a warning that a repetition of the same or similar acts shall be dealt
with more severely.
II. This Court's Findings:
A. On the charges against Almarvez:
Indeed, this Court finds that there is no sufficient evidence to support
the charge of violation of confidentiality of official
communication against Almarvez. The charge against Almarvez in
Judge Paas' complaint-affidavit which reads:
That said ALMARVEZ being in charge of the mails had divulged
informations which is confidential in nature to party litigants in
advance of its authorized release date before the release of Court Order
and Decision for consideration of a sum of money thus giving undue
advantage or favor to the paying party detrimental to the due
administration of justice.25
in fact lacks particularity. It is devoid of material details to enable
Almarvez to intelligently meet the same.
As for the charges of neglect of duty, discourtesy and
insubordination which were echoed in the affidavits of court
personnel, they are also too general to support a conviction and are
contrary to what is reflected in his performance rating that he
cooperated willingly, even wholeheartedly, with his fellow employees.
On the charge of violation of Rep. Act No. 3019 (Anti-Graft and
Corrupt Practices Act): Absent any evidence to support the charge, the
affiants jail officers who claimed to have witnessed Almarvez receive
money from detention prisoners in exchange for the release of their
Release Orders not having been presented, hence, their claim remains
hearsay, Almarvez' categorical denial and counter-allegation that these
affiants executed their affidavits only out of fear of or favor to Judge
Paas gain light.
As for the charge that Almarvez would merely sign the logbook and
would thereafter leave the office, again Judge Paas failed to present the
affiant-Clerk of Court Atty. Pedro C. Doctolero, Jr. While she
submitted in evidence a copy of her October 6, 2000
memorandum26 requiring Almarvez to explain why he was not in the
office on September 8, 11, and 13, and October 5, 2000, despite his
affixing of his signature in the logbook on those dates indicating that
he reported for work, Almarvez satisfactorily explained that on
September 8, 11, and 13, 2000, he submitted himself to drug testing as
required by her in her September 7, 200027 memorandum, which
explanation is supported by the September 14, 2000 letter of Dr.
Rosendo P. Saulog, Medical Specialist II of the Dangerous Drug
Board.28 As to his whereabouts on October 5, 2000, Almarvez'
explanation that he was actually present in the morning but left in the
afternoon for the Supreme Court29 was not controverted.
On the charge of inefficiency, this Court concurs with the following
findings of the OCA that he should be faulted therefor:
The performance ratings of respondent Almarvez for three (3) rating
periods covering January to June 2000, July to December 2000 and
January to April 2001 evidently shows that he failed to perform his
official duties. The fact that respondent Almarvez never disputed the
performance ratings given him is tantamount to an implied acceptance
thereof pursuant to Sec. 5 Rule IX Book V of Executive Order No.
292, quoted as follows:
"Sec. 5. An employee who expresses dissatisfaction with the rating
given him may appeal through the established Grievance Procedure of
the Department or Agency within fifteen (15) days after receipt of his
copy of his performance rating. Failure to file an appeal within the
prescribed period shall be deemed a waiver of such right."
The performance ratings of respondent for the said periods are valid
grounds to drop him from the Rolls. However, considering that his
superior/supervisor failed to comply with the requirements set forth in
Memorandum Circular No. 12, Series of 1994 of the Civil Service
Commission, which is hereunder quoted, and that he was able to make
up and cure his inefficiency after he was given the opportunity to
improve his performance in his detail to Branch 11, MeTC, Manila, as
shown by his performance rating for the period April to June 2001
with a "very satisfactory" rating, dropping him from the roll will no
longer be appropriate30 (Emphasis and italics supplied.)
Par. 2.2 of CSC Memorandum Circular No. 12, s. 1994 referred to in
the above-quoted findings of the OCA reads:
2.2 Unsatisfactory or Poor Performance.
(a) An official or employee who is given two (2) consecutive
unsatisfactory ratings may be dropped from the rolls after due notice.
Notice shall mean that the officer or employee concerned is informed
in writing of his unsatisfactory performance for a semester and is
sufficiently warned that a succeeding unsatisfactory performance shall
warrant his separation from the service. Such notice shall be given not
later than 30 days from the end of the semester and shall contain
sufficient information which shall enable the employee to prepare an
explanation. (Emphasis and italics supplied.)
The suspension of Almarvez for One (1) Month without pay, as
recommended by the OCA, is thus in order.
B. On the charges against Judge Paas:
Regarding the charges of abuse of authority and oppression against
Judge Paas, Almarvez failed to substantiate the same.
Judge Paas' order for Almarvez to undergo a drug test is not an
unlawful order. Per Civil Service Commission Memorandum Circular
No. 34, s. 1997, public employees are required to undergo a drug test
prior to employment to determine if they are drug-free. To be drug-
free is not merely a pre-employment prerequisite but is a continuing
requirement to ensure the highest degree of productivity of the civil
service. However, considering that the order was issued after Judge
Paas filed the administrative case against Almarvez, it elicits the
suspicion that it was only a fishing expedition against him. This is
conduct unbecoming of a member of the judiciary, for which Judge
Paas should be duly reprimanded.
C. On the charges against Judge Paas and Atty. Paas:
By Judge Paas' own admission in her January 24, 2002 Supplemental
Affidavit,31 she was aware that her husband Atty. Paas was using her
office to receive court notices and orders in a case lodged in a Pasay
court. As the OCA puts it, "[w]hile the same appears to be innocuous,
it could be interpreted as a subtle way of sending a message that Atty.
Paas is the husband of a judge in the same building and should be
given special treatment by other judges or court personnel."32
The following are instructive in the disposition of these charges
against the judge and her spouse, Atty. Paas:
SC Administrative Circular No. 01-99, "Enhancing the Dignity of
Courts as Temples of Justice and Promoting Respect for their Officials
and Employers" reads:
As courts are temples of justice, their dignity and sanctity must, at all
times be preserved and enhanced. In inspiring public respect for the
justice system, court officials and employees must:
1. In general: (a) avoid committing any act which would constitute
grounds for disciplinary action under, as the case may be, the Canons
of Judicial Ethics, Code of Judicial Conduct; and Section 46, Chapter
7, Subtitle A, Title I, Book V of the Administrative Code of 1987
(Executive Order No. 292); and (b) faithfully comply with the norms
of conduct and perform the duties prescribed in the Code of Conduct
and Ethical Standards for Public Officials and Employees (R.A. No.
6713);
2. Zealously guard the public trust character of their offices;
xxx xxx xxx
6. Never use their offices as a residence or for any other purpose
than for court or judicial functions. (Emphasis and italics supplied.)
Canon 2 of the Code of Judicial Conduct provides that "A judge
should avoid impropriety and the appearance of impropriety in all
activities." Specifically, Rule 2.03 thereof provides that:
Rule 2.03. A judge shall not allow family, social, or other relationships
to influence judicial conduct or judgment. The prestige of judicial
office shall not be used or lent to advance the private interests of
others, nor convey or permit others to convey the impression that
they are in a special position to influence the judge. (Emphasis
supplied.)
SC Circular No. 3-92,33 dated August 31, 1992, of this Court reads:
SUBJECT: PROHIBITION AGAINST USE OF HALLS OF
JUSTICE FOR RESIDENTIAL OR COMMERCIAL PURPOSES
All judges and court personnel are hereby reminded that the Halls of
Justice may be used only for purposes directly related to the
functioning and operation of the courts of justice, and may not be
devoted to any other use, least of all as residential quarters of the
judges or court personnel, or for carrying on therein any trade or
profession.
Attention is drawn to A.M. No. RTJ-89-327 (Nellie Kelly Austria vs.
Judge Singuat Guerra), a case involving unauthorized and improper
use of the court's premises for dwelling purposes by respondent and
his family, in which the Court, by Resolution dated October 17, 1991,
found respondent Judge guilty of irresponsible and improper conduct
prejudicial to the efficient administration of justice and best interest of
the service, and imposed on him the penalty of SEVERE CENSURE,
the Court declaring that such use of the court's premises inevitably
degrades the honor and dignity of the court in addition to exposing
judicial records to danger of loss or damage. (emphasis supplied.)
By allowing her husband to use the address of her court in pleadings
before other courts, Judge Paas indeed "allowed [him] to ride on her
prestige for purposes of advancing his private interest, in violation of
the Code of Judicial Conduct"34 and of the above-stated Supreme
Court circulars, which violation is classified as a less serious charge
under the Rules of Court35 and is punishable under the same Rule.36
A judge's official conduct should indeed be free from the appearance
of impropriety; and his behavior not only in the performance of
judicial duties, but also in his everyday life should be beyond
reproach. This is premised on the truism that a Judge's official life
cannot simply be detached or separated from his personal existence
and that upon a Judge's attributes depend the public perception of the
Judiciary.37
On his part, Atty. Paas was guilty of using a fraudulent, misleading,
and deceptive address that had no purpose other than to try to impress
either the court in which his cases are lodged, or his client, that he has
close ties to a member of the juiciary, in violation of the following
rules of the Code of Professional Responsibility:
CANON 3 — A LAWYER IN MAKING KNOWN HIS LEGAL
SERVICES SHALL USE ONLY TRUE, HONEST, FAIR,
DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT
OF FACTS.
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.
CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND
GOOD FAITH TO THE COURT.
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the
doing of any in Court; nor shall he mislead, or allow the Court to be
misled by any artifice.
CANON 13 — A LAWYER SHALL RELY UPON THE MERITS OF
HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH
TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF
INFLUENCING THE COURT.
CANON 15 — A LAWYER SHALL OBSERVE CANDOR,
FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND
TRANSACTIONS WITH HIS CLIENTS.
Rule 15.06. A lawyer shall not state or imply that he is able to
influence any public official, tribunal or legislative body.
The need for relying on the merits of a lawyer's case, instead of
banking on his relationship with a member of the bench which tends to
influence or gives the appearance of influencing the court, cannot be
overemphasized. It is unprofessional and dishonorable, to say the least,
to misuse a public office to enhance a lawyer's prestige. Public
confidence in law and lawyers may be eroded by such reprehensible
and improper conduct.
This Court does not subscribe to the proffered excuse that expediency
and a desire to ensure receipt of court orders and notices prompted
Atty. Paas and Judge Paas to allow him to have his court notices sent
to office of Judge Paas, especially given the fact that for his other
cases, Atty. Paas used his office address but there is no showing that Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
he failed to receive the notices sent to that address. While a lawyer Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
should make the necessary arrangements to ensure that he is properly Martinez, Corona, Callejo, Sr. and Azcuna, JJ ., concur.
informed of any court action, these should not violate his lawyer's oath
or the Code of Professional Responsibility, nor provide an opportunity
for a member of the judiciary to breach his or her responsibilities
under Supreme Court circulars and the Code of Judicial Conduct.
WHEREFORE, this Court finds:
(1) In A.M. OCA IPI No. 00-956-P, respondent Edgar E. Almarvez
GUILTY of inefficiency and is hereby SUSPENDED for One (1)
Month without pay;
(2) In A.M. No. MTJ-01-1363, respondent, Judge Estrellita M. Paas
GUILTY of conduct unbecoming of a member of the judiciary and is
hereby REPRIMANDED, with warning that repetition of the same or
similar acts shall be dealt with more severely;
(3) In A.M. No. 01-12-02-SC,
(a) Judge Paas GUILTY of violating SC Administrative Circular No.
01-99, SC Circular No. 3-92 and Canon 2, Rule 2.03 of the Code of
Judicial Conduct and is hereby ordered to pay a FINE of TWELVE
THOUSAND PESOS (P12,000.00), with warning that repetition of the
same or similar acts shall be dealt with more severely; and
(b) Atty. Renerio Paas GUILTY of SIMPLE MISCONDUCT and is
hereby SUSPENDED from the practice of law for a period of THREE
(3) MONTHS, with warning that repetition of the same or similar act
shall be dealt with more severely.
This Decision shall take effect immediately.
Let copies of this Decision be furnished the Office of the Bar
Confidant, Integrated Bar of the Philippines, and appended to
respondents' personal record.
SO ORDERED.
[A.C. No. 2131. May 10, 1985.]
ADRIANO E. DACANAY, Complainant, v. 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 in his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office
for Respondents.
DECISION
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.chanrobles law library
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
practice 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.
Teehankee (Acting C. J.), Makasiar, Abad Santos, Melencio-Herrera,
Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and
Alampay, JJ., concur.
Plana, J., took no part.
Fernando, C.J. and Concepcion Jr., on leave.
[G.R. No. 125440. January 31, 2000.]
GENERAL BANK AND TRUST COMPANY (GBTC);
WORLDWIDE INSURANCE AND SURETY COMPANY
(WORLDWIDE); MIDLAND INSURANCE CORPORATION
(MIDLAND); and STANDARD INSURANCE CO., INC.
(STANDARD), Petitioners, v. THE OMBUDSMAN; OMB-GIO
RAUL E. TOTANES and ASSISTANT SOLICITOR GENERAL
MAGDANGAL M. DE LEON, Respondents.
DECISION
GONZAGA-REYES, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court
that seeks to annul and set aside the Ombudsman Resolution dated
May 15, 1995 in OMB-CRIM-0-93-1597 which dismissed the
complaint filed by petitioners against respondent Assistant Solicitor
General (ASG) Magdangal M. de Leon, and the Ombudsman Order
dated March 13, 1996 denying the Motion for Reconsideration of
petitioners.chanrobles.com : red
Petitioners General Bank and Trust Company (GBTC), Worldwide
Insurance and Surety Company (Worldwide), Midland Insurance
Corporation (Midland) and Standard Insurance Co., Inc. (Standard)
filed a complaint against respondent ASG de Leon on July 5, 1993,
Docketed as OMB-CRIM-093-1597, the complaint accused
respondent ASG de Leon of violating Section 3 (e) of Republic Act
3019 (Anti-Graft and Corrupt Practices Act), for allegedly —
. . . causing undue injury to the Government of the Republic of the
Philippines and the GBTC Stockholders in giving Lucio Tan
unwarranted benefit or advantage in the discharge of his official
functions by protecting and defending the interest of Lucio Tan and
the Central Bank relative to (sic) verbatim adoption of the Lucio Tan
Bid as the Liquidation Plan of GBTC under Monetary Board
Resolution No. 677, March 29, 1977. 1
and charged respondent administratively with malfeasance in office,
for his alleged —
. . . deliberate and adamant refusal to comply with his statutory duty to
protect and defend the interest of the Government of the Republic of
the Philippines as against the interest of Lucio Tan and the Central
Bank relative to the verbatim adoption of the Lucio Tan Bid as the
Liquidation Plan of GBTC under Monetary Board Resolution No. 677,
March 29, 1977. 2
OMB-CRIM-093-1597 was assigned to respondent Raul E. Totanes,
Ombudsman Graft Investigation Office II, Evaluation and Preliminary
Investigation Bureau (EPIB). Respondent Totanes dismissed the
criminal case against respondent ASG de Leon in the assailed
Resolution dated May 15, 1995, the dispositive portion of which
reads:chanrob1es virtual 1aw library
WHEREFORE, premises considered, the undersigned investigator
respectfully recommends that the above-entitled case be forthwith
DISMISSED for lack of sufficient evidence to hold respondent
CRIMINALLY liable for the acts complained of in the instant
complaint.
SO RESOLVED. 3
Petitioners then filed a Motion for Reconsideration on July 10, 1995
that was denied in an Order dated March 13, 1996. Hence, this
petition.
The relevant facts as summarized by the Office of the Ombudsman
are:chanrob1es virtual 1aw library
On March 27, 1977, the Monetary Board of the Central Bank passed
Resolution No. 677 to the effect that GBTC is insolvent and therefore
has to stop its banking business operations. It designated a Liquidator
and approved a Liquidation Plan whereby (sic) Lucio Tan Group shall
purchase all the assets and assume all the liabilities of GBTC;
On April 07, 1977, the Central Bank of the Philippines and Arnulfo B.
Aurellano in his capacity as the Monetary Board of the Central Bank
Liquidator of GBTC filed through the Office of the Solicitor General
(OSG) a Petition with the Court of First Instance of Manila, seeking
the court’s assistance in the liquidation of GBTC. The Court docketed
the said petition as Spec. Proc. No. 107812, entitled "Petition for
Assistance in the Liquidation of GBTC" ;chanrobles.com.ph : red
On May 05, 1982, three minority stockholders of GBTC, namely,
Worldwide, Midland and Standard through their counsel, ATTY.
ANGEL C. CRUZ, filed an intervention in the said case, praying for
the annulment of the closure and liquidation of GBTC by the
Monetary Board of the Central Bank as these were allegedly done
arbitrarily and in bad faith. Later, GBTC itself joined and adopted the
intervention of its aforesaid three minority stockholders;
Assistant Solicitor General Ruben E. Agpalo, to whose Team the said
case was assigned by Solicitor General Estelito P. Mendoza, re-
assigned the said case from Solicitor Juan C. Nabong to the herein
respondent in view of Juan C. Nabong’s appointment as RTC Judge;
From that time on, all the pleadings, filed with the Liquidation Court
RTC of Manila, were signed by Assistant Solicitor General Ruben E.
Agpalo and the herein respondent in behalf of the Office of the
Solicitor General (OSG).
What prompted petitioners to file a complaint against respondent ASG
de Leon with the Ombudsman is the alleged "inconsistent position" of
said respondent in Spec. Proc. No. 107812 and in Civil Case No. 0005
filed with Sandiganbayan.
Civil Case No. 0005 is an ill-gotten wealth case filed by the
Presidential Commission on Good Government (PCGG) through the
OSG on July 17, 1987. This case was instituted against Lucio Tan,
former President Ferdinand Marcos, Imelda R. Marcos, et. al.
Petitioners point out that in Civil Case No. 0005, the first of the causes
of actions therein as stated in Par. 14 (a)-(1) to (3) alleges
that:chanrob1es virtual 1aw library
(A) The Marcos-dominated Central Bank Closure of GBTC under MB
Resolution, March 25, 1977;
(B) The LUCIO TAN’S (sic) takeover of GBTC under MB
Resolution, March 29, 1977;
are illegal, fraudulent and arbitrary, made thru conspiracy with and
taking advantage of the close relationship between the LUCIO TAN
Group and the deposed President and Wife, other CB officials, with
the help and manipulation of then CB Governor Gregorio S. Licaros
and former PNB President Panfilo O. Domingo . . . 4
The charge that respondent ASG de Leon espoused conflicting
interests rests on the contention of petitioners that said respondent’s
act of defending the legality of the Central Bank closure of GBTC
amounts to defending the interest of Lucio Tan and the Central Bank.
5 Petitioners maintain that the position taken by the OSG represented
by respondent ASG de Leon in Spec. Proc. No. 107812 is "against the
‘interest of the Government of the Republic of the Philippines’ as
contained in the statement of ultimate facts set forth in Par. 14 (a)-(1)
to (3) of EDSA-SDB Civil Case No. 0005, ANNEX "C." 6
On December 16, 1992, counsel of petitioners wrote respondent ASG
de Leon that he inhibit himself from appearing in Spec. Proc. No.
107812 and to defend the interest of the Government of the Philippines
as against the interest of Lucio Tan in Civil Case No. 0005. 7
When respondent ASG de Leon for OSG continued to represent the
Central Bank in Spec. Proc. No. 107812, petitioners then filed the
complaint against respondent with the Office of the Ombudsman.
In dismissing the case, the Office of the Ombudsman held:chanrob1es
virtual 1aw library
Thus, the records of this case convincingly show that, whenever the
herein respondent Assistant Solicitor General appears in court or signs
any pleading in the aforesaid case, he is doing so not in his personal
capacity but in his official capacity as one of the lawyers in the OSG,
which is headed by the Solicitor General.chanrobles virtuallawlibrary
Everything stated in the pleadings filed by the OSG in the aforesaid
case is not the personal stand or opinion of the herein respondent but
the official stand or opinion of the OSG. Hence, OSG as counsel of the
Central Bank of the Philippines in the aforesaid case is defending its
client, the Central Bank. It is not defending the interest of Lucio Tan.
The fact that, under the Liquidation Plan approved by the Monetary
Board of the Central Bank, the Lucio Tan Group purchased the assets
and assumed the liabilities of GBTC, is merely incidental. What is at
issue in the aforesaid case, which is now before the Court of Appeals,
is whether or not the Monetary Board of the Central Bank acted
arbitrarily or in bad faith in its actions, leading to the closure and
liquidation of GBTC.
As regards the complaint in the Sandiganbayan, docketed as Civil
Case No. 0005, which is an action for the recovery of the alleged ill-
gotten wealth against Lucio Tan, et. al., the same was signed by
Presidential Commission on Good Government (PCGG) Chairman
Ramon Diaz and Solicitor General Francisco Chavez. While it is true
that, the said case is in the name of the Republic of the Philippines, yet
it was filed by the PCGG which is the only agency involved in that
case. The said PCGG case has nothing to do with Spec. Proc. No.
107812 (CA-G.R. CV No. 39939) which involves the issue of validity
of the closure and liquidation of GBTC. Neither the Central Bank nor
GBTC Liquidator Arnulfo B. Aurellano of the Central Bank,
petitioners-appellants in the said CA G.R. CV No. 39938, are parties
in the said Sandiganbayan Civil Case No. 0005.
With the Motion for Reconsideration of the Resolution having been
denied, petitioners filed this petition raising the following
issues:chanrob1es virtual 1aw library
I.
THAT RESPONDENT OMB AND RESPONDENT
INVESTIGATION OFFICER RAUL E. TOTANES COMMITTED
OUTRAGEOUSLY WRONG FINDINGS (A) THAT THE OSG "IS
NOT DEFENDING THE INTEREST OF LUCIO TAN" IN SPEC.
PROC. NO. 107812, NOW CA-G.R. NO. 39939, AND (B) THAT
THE EDSA CASE SANDIGANBAYAN CIVIL CASE NO. 0005
HAS NOTHING TO DO WITH SPEC. PROC. NO. 107812, NOW
CA-G.R. NO. 39939, ARE DIRECTLY CONTRADICTED BY THE
FACTS ON RECORD.
II.
THAT RESPONDENT OMBUDSMAN COMPLETELY ERRED IN
NOT CONSIDERING THAT THERE IS NO CONSTITUTIONAL
NOR ANY LEGAL PROVISION NOR ANY DECISIONAL
AUTHORITY NOR ANY PRESIDENTIAL AUTHORITY
VESTING UPON OSG THE RIGHT AND OR DUTY TO
REPRESENT INTEREST "IN CONFLICT OR OPPOSED" TO THE
INTEREST OF THE REPUBLIC OF THE PHILIPPINES, OF
WHICH OSG IS THE CHIEF COUNSEL, IN ANY ILL-GOTTEN
WEALTH CASE SUCH AS THAT ARISING FROM THE ILLEGAL
AND FRAUDULENT CB CLOSURE AND LUCIO TAN’S
TAKEOVER OF GBTC, AS SET FORTH IN PAR.-14 (a)-(1) TO (3),
EDSA-SDB CIVIL CASE NO. 0005, ANNEX "C" .
III.
THAT RESPONDENT OMB IS TOTALLY WRONG IN NOT
FINDING THAT A PRIMA FACIE CASE EXISTS AGAINST
RESPONDENT FOR VIOLATION OF SECTION 3 (e), RA No.
3019, AS AMENDED CONSIDERING THAT THE EVIDENCE ON
RECORD, BEING DOCUMENTARY, IS SO CLEAR AND SO
PLAIN. 8
The petition must be dismissed. Not only are the charges against
respondent ASG de Leon baseless, they are also misplaced.chanrobles
virtuallawlibrary:red
In accusing respondent ASG de Leon of malfeasance and violation of
Section 3 (e) of RA 3019, petitioners would like this Court to believe
that respondent ASG de Leon, in representing the Central Bank in
Spec. Proc. 107812 (now CA-GR CV No. 39939) is also defending the
interest of Lucio Tan. Considering that Sandiganbayan Civil Case No.
0005 is a complaint against Lucio Tan filed by the PCGG through the
OSG and includes averments pertaining to the alleged illegal and
arbitrary closure of GBTC, petitioners are convinced that respondent
ASG de Leon must be held personally liable for the alleged
inconsistent interest or position taken by the OSG in these two cases.
To be criminally liable under Section 3 (e) of RA 3019, these elements
must be present: (1)That the accused are public officers or private
persons charged in conspiracy with them; (2) that said public officers
commit the prohibited acts during the performance of their official
duties or in relation to their public positions; (3) that they cause undue
injury to any party, whether the Government or a private party; (4) that
such injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and (5) that the public officers have acted
with manifest partiality, evident bad faith or gross inexcusable
negligence. 9
Respondent ASG de Leon, in representing the Central Bank in Spec.
Proc. No. 107812/CA-G.R. CV No. 39939 was acting in his official
capacity as Assistant Solicitor General. 10 As Assistant Solicitor
General, respondent was a member of the legal staff of the OSG tasked
to represent the Central Bank, an agency of the Government, in Spec.
Proc. No. 107812/CA-GR CV No. 39939. Based on the records, the
case was originally assigned to Solicitor Nabong, but was re-assigned
to respondent who at the time was a Solicitor, in view of the
appointment of Nabong as RTC judge.
In defending the validity of the closure of GBTC, respondent ASG de
Leon was merely acting in the interest of the Central Bank, which is
the client of OSG. It may be true that a successful defense of the
interest of the Central Bank in said case would also inure to the benefit
of the Lucio Tan group. However, such benefit would just be an
incidental result of the position that the government has taken in
justifying the closure of said bank because the approved Liquidation
Plan for GBTC provided that the Lucio Tan group shall purchase all
the assets and assume all the liabilities of GBTC and such Liquidation
Plan would be in force upon a judgment upholding the legality of the
closure of GBTC. 11 Whatever benefit the Lucio Tan group would
reap upon a favorable judgment in Spec. Proc. No. 107812/CA-G.R.
CV No. 39939 is but a natural consequence of a successful defense of
the actions of the Central Bank in closing GBTC. Certainly, it cannot
be deemed as an act of causing undue injury to a party by giving it
unwarranted benefits or advantage.chanrobles.com : virtual law library
We affirm the finding that respondent ASG de Leon cannot be held
criminally liable for violating Section 3 (e) of RA 3019. In defending
the Central Bank, respondent was performing his legal duty to defend
the interest of the Government and was merely pursuing the position
taken by it. Whatever legal services respondent ASG de Leon rendered
in favor of the Central Bank in Spec. Proc. No. 107812/CA-G.R. CV
No. 39939 were made in his official capacity as a member of the legal
staff of the OSG. We note that in all of the pleadings filed by the OSG
in Spec. Proc. No. 107812/CA-G.R. CV No. 39939, the signature of
respondent ASG de Leon appeared therein as Solicitor and later on as
Assistant Solicitor General. However, it must be noted that these
pleadings also bore the signatures of the Solicitor General and other
members of the legal staff of the Office of the Solicitor General. 12
Hence, the acts of respondent ASG de Leon had the imprimatur of the
OSG which had consistently defended the interest of the Central Bank
in Spec. Proc. No. 107812/CA-G.R. CV No. 39939. Four Solicitor
Generals, Estelito Mendoza, Sedfrey Ordoñez, Frank Chavez and Raul
I. Goco have maintained the policy of defending the closure of GBTC
by the Central Bank and respondent ASG de Leon merely acted with
the other officials of the OSG in representing the State.
To be liable under Section 3 (e) of RA 3019, the five aforementioned
elements must concur. In the absence of proof that respondent ASG de
Leon acted with manifest partiality in pursuing the official stand of the
OSG in Spec. Proc. No. 107812/CA-G.R. CV No. 39939, respondent
ASG de Leon cannot be liable a under Section 3 (e) of RA 3019. Thus,
the failure of petitioners to prove the fifth element is fatal to their
cause.
Petitioners harp on the alleged conflicting positions of respondent
ASG de Leon in Spec. Proc. No. 107812/CA-G.R. CV No. 39939 and
in Sandiganbayan Civil Case No. 0005. However, the records fail to
disclose the nature and extent of respondent ASG de Leon’s
participation in Sandiganbayan Civil Case No. 0005. What has been
set in detail is the participation of respondent ASG de Leon in Spec
Proc. No. 107812/CA-G.R. CV No. 39939. Assuming arguendo that
respondent ASG de Leon participated in these two cases, this Court
cannot hold him personally liable. The perceived inconsistent positions
are the official positions taken by his office as the principal law office
and legal defender of the Government. 13
Petitioners have already raised the issue of "inconsistent positions" of
the OSG in Spec. Proc. No. 107812 and Sandiganbayan Civil Case No.
0005 with the Court of Appeals in CA-G.R. CV No. 033642 (Appeal
of the Central Bank from the decision of the RTC of Manila, Branch
IV in Spec. Proc. No. 107812).chanrobles virtua| |aw |ibrary
In CA-G.R. CV No. 033642, petitioners sought to have then Solicitor
General Francisco Chavez cited in contempt and subjected to
disciplinary action for said inconsistency. In upholding the position of
Solicitor General Chavez, the Court of Appeals stated in its Resolution
dated July 19, 1988:chanrob1es virtual 1aw library
The second ground in support of the motion for contempt may have
some basis per se, that is, appellant’s counsel espouses two
inconsistent positions or interests: the first, in favor of Central Bank
and Lucio Tan, which is the position taken in the case at bar, and the
second, in favor of the Republic but against Lucio Tan and his cohorts
in the Civil Case before the Sandiganbayan. The situation of the
appellant’s counsel may therefore be likened to one whose choice is
between the devil and the deep blue sea.
Still and all, we are not ready to condemn appellant’s counsel because
of the fix in which he found himself. On the contrary, we might
commiserate with him. He is under the payroll of the State and he
represents the State sometimes through its instrumentality like the
Central Bank and its officials, as in the instant case. In other words, the
State in both cases has knowingly allowed counsel to represent it, and
for this reason, the latter may not be held in contempt and subjected to
any disciplinary action. 14
This Court agrees that even the Solicitor General cannot be personally
liable for the predicament he found himself in Spec. Proc. No. 107812
and Sandiganbayan Civil Case No. 0005. Basic to a prosecution under
Section 3 (e) of RA 3019 is that public officers must have acted with
manifest partiality, evident bad faith or gross inexcusable negligence
in performing his legal duty. We find no reason to disturb the ruling of
respondent Totanes that there was no prima facie case against Melo, Vitug, Panganiban and Purisima, JJ., concur.
respondent ASG de Leon. The perceived conflict of interest or position
undertaken by the OSG in Spec. Proc. No. 107812/CA-G.R. CV No.
39939 and in Sandiganbayan Civil Case No. 0005 should be addressed
to the OSG or the Solicitor General in particular.chanrobles.com :
virtual law library

Furthermore, in Ocampo, IV v. Ombudsman, we ruled that the "courts

cannot interfere with the discretion of the fiscal or the Ombudsman to
determine the specificity and adequacy of the averments of the offense
charged. He may dismiss the complaint forthwith if he finds it to be
insufficient in form or substance or if he otherwise finds no ground to
continue with the inquiry; or he may proceed with the investigation if
the complaint is, in his view, in due and proper form." 15

The power of the Ombudsman to determine the merits of a complaint

is mandated by the Constitution and courts should not interfere in the
exercise thereof. There is also a practical reason behind this rule, to
wit:chanrob1es virtual 1aw library

The rule is based not only upon respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of
the courts will be grievously hampered by innumerable petitioners
assailing the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed before it, in
much the same was that the courts would be extremely swamped if
they could be compelled to review the exercise of discretion on the
part of the fiscals or prosecuting attorneys each time they decide to file
an information in court or dismiss a complaint by a private
complainant. 16

IN VIEW OF THE FOREGOING, the petition is DISMISSED.

SO ORDERED.
G.R. No. L-38581 March 31, 1976
LORENZO JOSE, petitioner,
vs.
THE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
Francisco Carreon & Zosimo D. de Mesa for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Eulogio Raquel-Santos and Solicitor Teodoro G. Bonifacio for
respondents.
MUÑOZ PALMA, J.:
Petitioner Lorenzo Jose who was convicted of illegal possession of
explosives (handgrenade) and sentenced to suffer imprisonment of five
years, seeks a new trial which was denied him by the Court of First
Instance of Pampanga, Branch III, and by respondent Court of
Appeals.
Petitioner thus poses one legal issue for the Court to resolve, viz: did
respondent appellate court commit an error of law and gravely abuse
its discretion when it denied petitioner's motion for new trial "for the
reception of (1) the written permit of petitioner to possess and use
handgrenade, and (2) the written appointment of petitioner as PC agent
with Code No. P-36-68 and code Name 'Safari' (both documents are
dated 31 January 1968)"? 1
The following incidents are not in dispute:
On February 8, 1968, at the poblacion of Floridablanca, Pampanga,
petitioner Jose was arrested by the local police leading to the filing
with the Court of First Instance of Pampanga, Branch III of several
criminal cases against him to wit: illegal discharge of firearm (Crim.
Case 6235), robbery (Crim. Case 6236) and illegal possession of
explosives (Crim. Case 6237). These three cases were jointly tried
after which the trial judge, Hon. Honorio Romero, in a decision dated
December 15, 1969, and promulgated on January 15, 1970 2 acquitted
accused Lorenzo Jose of illegal discharge of firearm and robbery, but
convicted him for illegal possession of the handgrenade that was found
on his person at the time of his arrest.
After promulgation of the judgment, petitioner on that same day filed
his notice of appeal. Nine days thereafter or more particularly on
January 24, 1970, petitioner filed a motion praying that the case be
reopened to permit him to present, pursuant to a reservation he had
made in the course of the trial, a permit to possess the handgrenade in
question. The trial court in its order of January 30, 1970 denied the
motion mainly on the ground that it had lost jurisdiction over the case
in view of the perfection of the appeal by the accused on the very date
the decision was promulgated. 3
The records of Criminal Case 6237 were then elevated to the Court of
Appeals where petitioner as accused-appellant raised the issues of (1)
an erroneous conviction for illegal possession of explosives when
there was no proof of an essential element of the crime, and (2)
erroneous denial of his motion to reopen the case for the reception of
his permit to possess the handgrenade. 4 In his brief, Lorenzo Jose
prayed for his acquittal or in the alternative for the remand of the case
back to the trial court for a new trial.
Resolving the appeal, respondent Appellate Court, 5 rendered its
decision of March 8, 1972, affirming the findings of fact and the
judgment of conviction of the court a quo, and declaring that no
reversible error was committed by the latter when it denied the
reopening of the case as the court had lost its "power to change,
modify, or alter its decision." 6
A motion for reconsideration and/or new trial was filed with a plea that
"assuming arguendo that the court a quo lacked jurisdiction to act
upon appellant's motion for new trial because of the perfection of the
appeal, this Honorable Court — before which said motion was
reiterated and which has competence to act thereon — should have
granted the same if for no other reason than to prevent a miscarriage of
justice which is the inevitable result of its denial." 7 This motion for
reconsideration was denied in respondent court's resolution of April 3,
1974. 8
A second motion for reconsideration and/or new trial was filed by
Lorenzo Jose 9 but this was also denied by the appellate court in a
Resolution promulgated on July 24, 1974. 10
Forthwith, appellant Lorenzo Jose assisted by counsel, Atty. Francisco
Carreon, filed with Us this petition for review which We denied
outright on September 6, 1974, "the question raised being factual and
for insufficient showing that the finding of facts by respondent court
are unsupported by substantial evidence, and for lack of merit."
A motion for reconsideration was filed by petitioner stressing that the
following grounds should justify this Court to review the ruling of
respondent appellate court to wit:
1. petitioners's plight is of compelling human and legal interest, and
his being imprisoned for five (5) years when there is indubitable
exculpatory evidence on hand is a result so harsh that the Honorable
Court may well undertake a review of the case just to satisfy itself of
the justice and inevitability of such a result;
2. a question of substance not heretofore determined by the Honorable
Court is involved, as the evidence sought to be introduced at the new
trial is, technically, not newly discovered: and
3. the denial of a new trial in the circumstances mentioned in his
above-quoted statement of the main legal issue, is contrary to the
decisions of this Honorable Court because under these decisions, the
new trial should have been granted since there is a 'strong, compelling
reason' in this case for granting the relief prayed for, such strong
compelling reason being the very strong probability of petitioner's
acquittal if a new trial were granted. (Workmen's Insurance Co. vs.
Augusto, 40 SCRA 123; Sison vs. Gatchalian, 51 SCRA 262; Rubio
vs. Mariano 52 SCRA 338; Montecines vs. Court of Appeals, 53
SCRA 14; Posadas vs. Court of Appeals, L-38071, April 25, 1974;
please see Annotation: 52 SCRA 346 ... (pp. 157-158, rollo)
The Solicitor General opposed the granting of the foregoing motion for
reconsideration claiming that there was neither a denial of "substantial
justice nor error of any sort on the part of respondent Court of
Appeals, affirming the judgment of convinction," and that it being
admitted by petitioner that the evidence sought to be introduced by
him at the new trial is not newly discovered evidence, the denial of the
new trial "visibly papers as correct". This Opposition drew a lengthy
reply from petitioner's counsel.
On February 13, 1975, a Manifestation was submitted by the Solicitor
General informing the Court that in view of the " Persistence of
accused petitioner Lorenzo Jose both before this Honorable Court and
respondent Court of Appeals as to his alleged existing appointment as
PC Agent and/or authority to handgrenade," in the interest of justice,
he was constrained to make pertinent inquiries from the PC Chief,
Gen. Fidel V. Ramos who in reply sent his letter dated December 27,
1974 with enclosures, xerox copies of which are being attached to the
manifestation as Annexes A, B, C, C-1 and D. 11
Annex A of the above-mentioned Manifestation of the Solicitor
General reads:
Solicitor General Estelito P. Mendoza
Padre Faura, Manila
Dear Solicitor General Mendoza:
With reference to your letter of December 5, 1974, please be informed
that Colonel Pedrito C. de Guzman who is now Provincial of Sorsogon
Constabulary Command, confirmed that he executed an affidavit on
May 4, 1974 at Sorsogon, Sorsogon stating that he appointed Mr.
Lorenzo Jose of Betis, Guagua, Pampanga as PC Agent on January 31,
1968.
The incumbent Provincial Commander of Pampanga Constabulary
Command also confirmed the appointment of Lorenzo Jose as PC
agent during the year 1968.
Attached herewith pertinent papers related to the said appointment.
Sincerely yours, the Court of Appeals to appreciate the merits of the situation,
involving as it does the liberty of an individual, thereby closing its ear
(Sgd.) FIDEL V. RAMOS
to a plea that a miscarriage of justice be averted, constitutes a grave
FIDEL V. RAMOS abuse of discretion which calls for relief from this Court.
Major General, AFP At the outset, We give due credit to the Solicitor General and his staff
for upholding the time-honored principle set forth in perspicuous terms
Chief of Constabulary (p. 191, rollo) by this Court in Suarez vs. Platon, et al that a prosecuting officer, as
Inclosure: the representative of a sovereignty whose obligation and interest in a
criminal prosecution is not that it shall win a case but that justice shall
Appointmenmt paper be done, has the solemn responsibility to assure the public that while
of subject person dtd guilt shall not escape, innocene shall not suffer. (69 Phil. 556, 564-
565, qouting Justice Sutherland of the U.S. Supreme Court in 69 U.S.
Jan. 31, 1968 with Law Review, June, 1935, No. 6, p. 309) The Solicitor General now
Personal History concedes that the interests of justice will best be served by remanding
this case to the court of origin for a new trial.
Statement
We do not question the correctness of the findings of the Court of
Annex B is the appointment dated January 31, 1968 of petitioner Appeals that the evidence sought to be presented by the petitioner do
Lorenzo Jose as a PC Agent of the Pampanga Constabulary Command not fall under the category of newly-discovered evidence because the
with Code Number P-36-68 and Code Nanie "Safari" with expiration same — his alleged appointment as an agent of the Philippine
on December 31, 1968, the pertinent portion of which We quote: Constabulary and a permit to possess a handgrenade — were supposed
This Headquarters will, from time to time, provide our firearms and to be known to petitioner and existing at the time of trial and not
such other equipment which it may deem necessary for your personal discovered only thereafter.
protection on the need basis which will be covered by separate written It is indeed an established rule that for a new trial to be granted on the
authority. (p. 192, rollo) ground of newly discovered evidence, it must be shown that (a) the
In a Resolution of February 21, 1975, the Court resolved to set aside evidence was discovered after trial; (b) such evidence could not have
the denial of this petition for review, to give due course and consider been discovered and produced at the trial even with the exercise of
the Petition as a special civil action. In another Resolution of April 4, reasonable diligence; (c) the evidence is material, not merely
1975, the parties were given time to submit their respective cumulative, corroborative, or impeaching; and (d) it must go to the
memorandum. merits as ought to produce a different result if admitted. 12

This is a situation where a rigid application of rules of procedure must However, petitioner herein does not justify his motion for a new trial
bow to the overriding goal of courts of justice to render justice where on newly discovered evidence, but rather on broader grounds of
justice is due-to secure to every individual all possible legal means to substantial justice under Sec. 11, Rule 124 of the Rules of Court which
prove his innocence of a crime of which he is charged. The failure of provides:
Power of appellate court on appeal. — Upon appeal from a judgement
of the Court of First Instance, the appellate court may affirm or modify
the judgment and increase or reduce the penalty imposed by the trial
court, remand the case ito the Court of First Instance for new trial or
retrial, or dismiss the case.
Petitioner asserts, and correctly so, that the authority of respondent
appellate court over an appealed case is broad and ample enough to
embrace situations as the instant case where the court may grant a new
trial or a retrial for reasons other than that provided in Section 13 of
the same Rule, or Section 2, Rule 121 of the Rules of Court. 13 While
Section 13, Rule 124, and Section 2, Rule 121, provide for specific
grounds for a new trial, i.e. newly discovered evidence, and errors of
law or irregularities committed during the trial. Section 11, Rule 124
quoted above does not so specify, thereby leaving to the sound
discretion of the court the determination, on a case to case basis, of
what would constitute meritorious circumstances warranting a new
trial or re-trial.
Surely, the Rules of Court were conceived and promulgate to aid and
not to obstruct the proper administration of justice, to set forth
guidelines in the dispensation of justice but not to bind and chain the
hand that dispense justice, for otherwise, courts will be mere slaves to
or robots of technical rules, shorn of judicial discretion.
Thus, admittedly, courts may suspend its own rules or except a case
from them for the purposes of justice 14 or, in a proper case, disregard
them. 15 In this jurisdiction, in not a. few instances, 15* this Court
ordered a new trial in criminal cases on grounds not mentioned in the
statute, vis retraction of witness, 16 negligence or incompetency of
counsel. 17 improvident plea of guilty, 18 disqualification of an attorney
de oficio to represent the accused in the trial court, 19 and where a
judgment was rendered on a stipulation of facts entered into by both
the prosecution and the defense. 20
Characteristically, a new trial has been described as a new invention to
temper the severity of a judgment or prevent the failure of justice. 21
Petitioner cites certain peculiar circumstances obtaining in the case
now before Us which may be classified as exceptional enough to
warrant a new trial if only to afford him an opportunity to establish his
innocence of the crime charged.
Thus — petitioner was facing a criminal prosecution for illegal
possession of a handgrenade in the court below. He claimed to be an
agent of the Philippine Constabulary with a permit to possess
explosives such as the handgrenade in question. However, he found
himself in a situation where he had to make a choice — reveal his
Identity as an undercover agent of the Philippine Constabulary
assigned to perform intelligence work on subversive activities and face
possible reprisals or even liquidation at the hands of the dissidents
considering that Floridablanca the site of the incident, was in the heart
of "Huklandia", or ride on the hope of a possible exoneration or
acquittal based on insufficiency of the evidence of the prosecution.
Without revealing his Identity as an agent of the Philippine
Constabulary, he claimed before the trial judge that he had a permit to
possess the handgrenade and prayed for time to present the same. The
permit however could not be produced because it would reveal his
intelligence work activities. Came the judgment of conviction and with
it the staggering impact of a five-year imprisonment. The competent
authorities then realized that it was unjust for this man to go to jail for
a crime he had not committed, hence, came the desired evidence
concerning petitioner's appointment as a Philippine Constabulary agent
and his authority to possess a handgrenade for the protection of his
person, but, it was too late according to the trial court because in the
meantime the accused had perfected his appeal.
We find and hold that the above circumstances justify a reopening of
petitioner's cas to afford him the opportunity of producing exculpating
exculpating evidence. An outright acquittal from this Court which
petitioner seeks as an alternative relief is not As correctly stressed by
the Solicitor General, the People is to be given the chance of
examining the documentary sought to be produced, and of cross-
examining the persons who executed the same, as well as the accused
himself, now petitioner, on his explanation for the non-production of
the of the evidence during the trial.
PREMISES CONSIDERED, We hereby set aside the judgment of
conviction of the herein petitioner, Lorenzo Jose, and remand the case
to the court a quo for a new trial only for purpose of allowing said
accused to present additional evidence in his defense. The trial court
shall inform this Court of the final outcome of the case within a
reasonable time. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Martin, JJ., concur.
EN BANC
[G.R. NOS. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), Petitioner, v. 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
GENBANK's assets was held from March 26 to 28, 1977, wherein the
Lucio Tan group submitted the winning bid.5 Subsequently, former
Solicitor General Estelito P. Mendoza filed a petition with the then
Court of First Instance praying for the assistance and supervision of
the court in GENBANK's liquidation as mandated by Section 29 of
Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos
government. One of the first acts of President Corazon C. Aquino was
to establish the Presidential Commission on Good Government
(PCGG) to recover the alleged ill-gotten wealth of former President
Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a
complaint for 'reversion, reconveyance, restitution, accounting and
damages against respondents Lucio Tan, Carmen Khao Tan, Florencio
T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano
Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos,
Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso
Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita,
Willy Co, Allied Banking Corporation (Allied Bank), Allied Leasing
and Finance Corporation, Asia Brewery, Inc., Basic Holdings Corp.,
Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and
Development Corp., Jewel Holdings, Inc., Manufacturing Services and
Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco
Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay
Trading Corp., Virgo Holdings & Development Corp., (collectively
referred to herein as respondents Tan, et al.), then President Ferdinand
E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea,
Don Ferry and Gregorio Licaros. The case was docketed as Civil
Case No. 0005 of the Second Division of the Sandiganbayan.6 In
connection therewith, the PCGG issued several writs of
sequestration on properties allegedly acquired by the above-named
persons by taking advantage of their close relationship and influence
with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions
for certiorari, prohibition and injunction to nullify, among others, the
writs of sequestration issued by the PCGG.7 After the filing of the
parties' comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed
as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et
al. were represented by their counsel, former Solicitor General Estelito
P. Mendoza, who has then resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to
disqualify respondent Mendoza as counsel for respondents Tan, et al.
with the Second Division of the Sandiganbayan in Civil Case Nos.
00058 and 0096-0099.9 The motions alleged that respondent Mendoza,
as then Solicitor General10 and counsel to Central Bank, 'actively
intervened in the liquidation of GENBANK, which was subsequently
acquired by respondents Tan, et al. and became Allied Banking
Corporation. Respondent Mendoza allegedly 'intervened in the
acquisition of GENBANK by respondents Tan, et al. when, in his
capacity as then Solicitor General, he advised the Central Bank's
officials on the procedure to bring about GENBANK's liquidation and
appeared as counsel for the Central Bank in connection with its
petition for assistance in the liquidation of GENBANK which he filed
with the Court of First Instance (now Regional Trial Court) of and was
docketed as Special Proceeding No. 107812. The motions to disqualify
invoked Rule 6.03 of the Code of Professional Responsibility. Rule
6.03 prohibits former government lawyers from accepting
'engagement or employment in connection with any matter in which he
had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued
a resolution denying PCGG's motion to disqualify respondent
Mendoza in Civil Case No. 0005.11 It found that the PCGG failed to
prove the existence of an inconsistency between respondent Mendoza's
former function as Solicitor General and his present employment as
counsel of the Lucio Tan group. It noted that respondent Mendoza did
not take a position adverse to that taken on behalf of the Central Bank
during his term as Solicitor General.12 It further ruled that respondent
Mendoza's appearance as counsel for respondents Tan, et al. was
beyond the one-year prohibited period under Section 7(b) of Republic
Act No. 6713 since he ceased to be Solicitor General in the year 1986.
The said section prohibits a former public official or employee from
practicing his profession in connection with any matter before the
office he used to be with within one year from his resignation,
retirement or separation from public office.13 The PCGG did not seek
any reconsideration of the ruling.14 ςrνll
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayan's Second Division to the Fifth Division.15 In its
resolution dated July 11, 2001, the Fifth Division of
the Sandiganbayan denied the other PCGG's motion to disqualify
respondent Mendoza.16 It adopted the resolution of its Second
Division dated April 22, 1991, and observed that the arguments were
the same in substance as the motion to disqualify filed in Civil Case
No. 0005. The PCGG sought reconsideration of the ruling but its
motion was denied in its resolution dated December 5, 2001.17 ςrνll
Hence, the recourse to this Court by the PCGG assailing the
resolutions dated July 11, 2001 and December 5, 2001 of the Fifth
Division of the Sandiganbayan via a Petition for Certiorari and
prohibition under Rule 65 of the 1997 Rules of Civil Procedure.18 The
PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the
assailed resolutions contending that: 1) Rule 6.03 of the Code of
Professional Responsibility prohibits a former government lawyer
from accepting employment in connection with any matter in which he
intervened; 2) the prohibition in the Rule is not time-bound; 3) that
Central Bank could not waive the objection to respondent Mendoza's
appearance on behalf of the PCGG; and 4) the resolution in Civil Case
No. 0005 was interlocutory, thus res judicata does not apply.19 ςrνll
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
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 ςrνll
The nineteenth century has been termed the 'dark ages' of legal
ethics in the United States. By mid-century, American legal reformers
were filling the void in two ways. First, David Dudley Field, the
drafter of the highly influential New York 'Field Code, introduced a
new set of uniform standards of conduct for lawyers. This concise
statement of eight statutory duties became law in several states in the
second half of the nineteenth century. At the same time, legal
educators, such as David Hoffman and George Sharswood, and many
other lawyers were working to flesh out the broad outline of a lawyer's
duties. These reformers wrote about legal ethics in unprecedented
detail and thus brought a new level of understanding to a lawyer's
duties. A number of mid-nineteenth century laws and statutes, other
than the Field Code, governed lawyer behavior. A few forms of
colonial regulations - e.g., the 'do no falsehood oath and the deceit model for several states' codes, and it was the foundation for the
prohibitions -- persisted in some states. Procedural law continued to American Bar Association's (ABA) 1908 Canons of Ethics.23 ςrνll
directly, or indirectly, limit an attorney's litigation behavior. The
In 1917, the Philippine Bar found that the oath and duties of a lawyer
developing law of agency recognized basic duties of competence,
were insufficient to attain the full measure of public respect to which
loyalty and safeguarding of client property. Evidence law started to
the legal profession was entitled. In that year, the Philippine Bar
recognize with less equivocation the attorney-client privilege and its
Association adopted as its own, Canons 1 to 32 of the ABA Canons of
underlying theory of confidentiality. Thus, all of the core duties, with
Professional Ethics.24 ςrνll
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 As early as 1924, some ABA members have questioned the form and
standards were isolated and did not provide a comprehensive statement function of the canons. Among their concerns was the 'revolving
of a lawyer's duties. The reformers, by contrast, were more door or 'the process by which lawyers and others temporarily enter
comprehensive in their discussion of a lawyer's duties, and they government service from private life and then leave it for large fees in
actually ushered a new era in American legal ethics.21 ςrνll private practice, where they can exploit information, contacts, and
influence garnered in government service.25 These concerns were
Toward the end of the nineteenth century, a new form of ethical
classified as adverse-interest conflicts' and 'congruent-interest
standards began to guide lawyers in their practice - the bar association
conflicts. 'Adverse-interest conflicts' exist where the matter in which
code of legal ethics. The bar codes were detailed ethical standards
the former government lawyer represents a client in private practice is
formulated by lawyers for lawyers. They combined the two primary
substantially related to a matter that the lawyer dealt with while
sources of ethical guidance from the nineteenth century. Like the
employed by the government and the interests of the current and
academic discourses, the bar association codes gave detail to the
former are adverse.26 On the other hand, 'congruent-interest
statutory statements of duty and the oaths of office. Unlike the
representation conflicts' are unique to government lawyers and apply
academic lectures, however, the bar association codes retained some of
primarily to former government lawyers.27 For several years, the ABA
the official imprimatur of the statutes and oaths. Over time, the bar
attempted to correct and update the canons through new canons,
association codes became extremely popular that states adopted them
individual amendments and interpretative opinions. In 1928, the ABA
as binding rules of law. Critical to the development of the new codes
amended one canon and added thirteen new canons.28 To deal with
was the re-emergence of bar associations themselves. Local bar
problems peculiar to former government lawyers, Canon 36 was
associations formed sporadically during the colonial period, but they
minted which disqualified them both for 'adverse-interest conflicts' and
disbanded by the early nineteenth century. In the late nineteenth
'congruent-interest representation conflicts.29 The rationale for
century, bar associations began to form again, picking up where their
disqualification is rooted in a concern that the government lawyer's
colonial predecessors had left off. Many of the new bar associations,
largely discretionary actions would be influenced by the temptation to
most notably the Alabama State Bar Association and the American Bar
take action on behalf of the government client that later could be to the
Association, assumed on the task of drafting substantive standards of
advantage of parties who might later become private practice
conduct for their members.22 ςrνll
clients.30 Canon 36 provides, viz.:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
In 1887, Alabama became the first state with a comprehensive bar
36. Retirement from judicial position or public employment
association code of ethics. The 1887 Alabama Code of Ethics was the
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 ςrνll
In 1946, the Philippine Bar Association again adopted as its own
Canons 33 to 47 of the ABA Canons of Professional Ethics.32 ςrνll
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 ςrνll
Despite these amendments, legal practitioners remained unsatisfied
with the results and indefinite standards set forth by DR 9-101(b) and
the Model Code of Professional Responsibility as a whole. Thus, in
August 1983, the ABA adopted new Model Rules of Professional
Responsibility. The Model Rules used the 'restatement format, where
the conduct standards were set-out in rules, with comments following
each rule. The new format was intended to give better guidance and
clarity for enforcement 'because the only enforceable standards were
the black letter Rules. The Model Rules eliminated the broad canons
altogether and reduced the emphasis on narrative discussion, by
placing comments after the rules and limiting comment discussion to
the content of the black letter rules. The Model Rules made a number
of substantive improvements particularly with regard to conflicts of
interests.37 In particular, the ABA did away with Canon 9, citing
the hopeless dependence of the concept of impropriety on the
subjective views of anxious clients as well as the norm's indefinite
nature.38 ςrνll
In cadence with these changes, the Integrated Bar of the Philippines
(IBP) adopted a proposed Code of Professional Responsibility in
1980 which it submitted to this Court for approval. The Code was
drafted to reflect the local customs, traditions, and practices of the bar
and to conform with new realities. On June 21, 1988, this Court
promulgated the Code of Professional Responsibility.39 Rule 6.03
of the Code of Professional Responsibility deals particularly with
former government lawyers, and
provides, viz.:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 ςrνll
The PCGG's Case for Atty. Mendoza's Disqualification
The PCGG imputes grave abuse of discretion on the part of
the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions
dated July 11, 2001 and December 5, 2001 denying the motion to
disqualify Atty. Mendoza as counsel for respondents Tan, et al. The
PCGG insists that Atty. Mendoza, as then Solicitor General, actively
intervened in the closure of GENBANK by advising the Central Bank
on how to proceed with the said bank's liquidation and even filing the
petition for its liquidation with the CFI of.
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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Immediately after said meeting, we had a conference with the Solicitor
General and he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that
the bank can not be reorganized or placed in a condition so that it may
be permitted to resume business with safety to its depositors and
creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order
the liquidation of the bank and indicate the manner of its liquidation
and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the bank and the
liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First
Instance reciting the proceedings which had been taken and praying
the assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of
the Monetary Board where it was shown that Atty. Mendoza was
furnished copies of pertinent documents relating to GENBANK in
order to aid him in filing with the court the petition for assistance in
the bank's liquidation. The pertinent portion of the said minutes
reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The Board decided as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
.. .
E. To authorize Management to furnish the Solicitor General with a
copy of the subject memorandum of the Director, Department of
Commercial and Savings Bank dated March 29, 1977, together with
copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March 25, 1977,
containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust
Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and
Savings Bank, to the Monetary Board, dated March 24, 1977,
submitting, pursuant to Section 29 of R.A. No. 265, as amended by
P.D. No. 1007, a repot on the state of insolvency of Genbank, together
with its attachments; and
4. Such other documents as may be necessary or needed by the
Solicitor General for his use in then CFI-praying the assistance of the
Court in the liquidation of Genbank.
Beyond doubt, therefore, the 'matter or the act of respondent Mendoza
as Solicitor General involved in the case at bar is 'advising the Central
Bank, on how to proceed with the said bank's liquidation and even
filing the petition for its liquidation with the CFI of. 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 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.:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 ςrνll
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 ςrνll
There are, therefore, two possible interpretations of the word
'intervene. Under the first interpretation, 'intervene includes
participation in a proceeding even if the intervention is irrelevant or
has no effect or little influence.43 Under the second interpretation,
'intervene only includes an act of a person who has the power to
influence the subject proceedings.44 We hold that this second meaning
is more appropriate to give to the word 'intervention under Rule 6.03
of the Code of Professional Responsibility in light of its history. The
evils sought to be remedied by the Rule do not exist where the
government lawyer does an act which can be considered as innocuous
such as 'x x x drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant.
Originally, Canon 36 provided that a former government lawyer
'should not, after his retirement, accept employment in connection with
any matter which he has investigated or passed upon while in such
office or employ. As aforediscussed, the broad sweep of the phrase
'which he has investigated or passed upon resulted in unjust
disqualification of former government lawyers. The 1969 Code
restricted its latitude, hence, in DR 9-101(b), the prohibition extended
only to a matter in which the lawyer, while in the government service,
had 'substantial responsibility. The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that 'a lawyer
shall not represent a private client in connection with a matter in which
the lawyer participated personally and substantially as a public
officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in
Sp. Proc. No. 107812 is significant and substantial. We disagree. For
one, the petition in the special proceedings is an initiatory pleading,
hence, it has to be signed by respondent Mendoza as the then sitting
Solicitor General. For another, the record is arid as to
the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of
years. None of the parties pushed for its early termination. Moreover,
we note that the petition filed merely seeks the assistance of the court
in the liquidation of GENBANK. The principal role of the 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 ςrνll
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as
a litigation tactic to harass opposing counsel as well as deprive his
client of competent legal representation. The danger that the rule will
be misused to bludgeon an opposing counsel is not a mere guesswork.
The Court of Appeals for the District of Columbia has noted 'the
tactical use of motions to disqualify counsel in order to delay
proceedings, deprive the opposing party of counsel of its choice, and
harass and embarrass the opponent, and observed that the tactic was
'so prevalent in large civil cases in recent years as to prompt frequent
judicial and academic commentary.48 Even the United States Supreme
Court found no quarrel with the Court of Appeals' description of
disqualification motions as 'a dangerous game.49 In the case at bar,
the new attempt to disqualify respondent Mendoza is difficult to
divine. The disqualification of respondent Mendoza has long been
a dead issue. It was resuscitated after the lapse of many years and only
after PCGG has lost many legal incidents in the hands of respondent
Mendoza. For a fact, the recycled motion for disqualification in the
case at bar was filed more than four years after the filing of the
petitions for certiorari, prohibition and injunction with the Supreme
Court which were subsequently remanded to the Sandiganbayan and
docketed as Civil Case Nos. 0096-0099.50 At the very least, the
circumstances under which the motion to disqualify in the case at bar
were refiled put petitioner's motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be caused
by its misapplication. It cannot be doubted that granting a
disqualification motion causes the client to lose not only the law firm
of choice, but probably an individual lawyer in whom the client has
confidence.51 The client with a disqualified lawyer must start again
often without the benefit of the work done by the latter.52 The effects
of this prejudice to the right to choose an effective counsel cannot be
overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of
lawyers in the government service. According to Prof. Morgan: 'An
individual who has the security of knowing he or she can find private
employment upon leaving the government is free to work vigorously,
challenge official positions when he or she believes them to be in
error, and resist illegal demands by superiors. An employee who lacks
this assurance of private employment does not enjoy such
freedom.53 He adds: 'Any system that affects the right to take a new
job affects the ability to quit the old job and any limit on the ability to
quit inhibits official independence.54 The case at bar involves the
position of Solicitor General, the office once occupied by respondent
Mendoza. It cannot be overly stressed that the position of Solicitor
General should be endowed with a great degree of independence.
It is this independence that allows the Solicitor General to recommend
acquittal of the innocent; it is this independence that gives him the
right to refuse to defend officials who violate the trust of their office.
Any undue dimunition of the independence of the Solicitor General
will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given
the current state of our law, the disqualification of a former
government lawyer may extend to all members of his law
firm.55 Former government lawyers stand in danger of becoming
the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by
Rule 6.03 of the Code of Professional Responsibility is the possible
appearance of impropriety and loss of public confidence in
government. But as well observed, the accuracy of gauging public
perceptions is a highly speculative exercise at best56 which can lead to
untoward results.57 No less than Judge Kaufman doubts that the
lessening of restrictions as to former government attorneys will have
any detrimental effect on that free flow of information between the
government-client and its attorneys which the canons seek to
protect.58 Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional
Conduct59 and some courts have abandoned per se disqualification
based on Canons 4 and 9 when an actual conflict of interest exists, and
demand an evaluation of the interests of the defendant, government,
the witnesses in the case, and the public.60 ςrνll
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 and (2) the bid to disqualify respondent Mendoza was made after the
disloyal to his or her last client - the government. Interviews with lapse of time whose length cannot, by any standard, qualify as
lawyers consistently confirm that law firms want the 'best government reasonable. At bottom, the point they make relates to the unfairness of
lawyers - the ones who were hardest to beat - not the least qualified or the rule if applied without any prescriptive period and retroactively, at
least vigorous advocates.65 But again, this particular concern is a that. Their concern is legitimate and deserves to be initially addressed
non factor in the case at bar. There is no charge against respondent by the IBP and our Committee on Revision of the Rules of Court.
Mendoza that he advised Central Bank on how to liquidate
IN VIEW WHEREOF, the petition assailing the resolutions dated
GENBANK with an eye in later defending respondents Tan, et al. of
July 11, 2001 and December 5, 2001 of the Fifth Division of
Allied Bank. Indeed, he continues defending both the interests of
the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
Central Bank and respondents Tan, et al. in the above cases.
No cost.
Likewise, the Court is nudged to consider the need to curtail what is
perceived as the 'excessive influence of former officials' or their SO ORDERED.
'clout.66 Prof. Morgan again warns against extending this concern too
far. He explains the rationale for his warning, viz: 'Much of what Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-
appears to be an employee's influence may actually be the power or Gutierrez, Carpio, Austria-Martinez, Corona and
authority of his or her position, power that evaporates quickly upon Garcia, JJ., concur.
departure from government x x x.67 More, he contends that the concern Panganiban and Tinga, JJ.., Please see separate opinion.
can be demeaning to those sitting in government. To quote him
further: 'x x x The idea that, present officials make significant Carpio-Morales and Callejo, Sr., JJ.., Please see dissenting
decisions based on friendship rather than on the merit says more about opinion.
the present officials than about their former co-worker friends. It Azcuna, J., I was former PCGG Chair.
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 Chico-Nazario, J., No part.
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,
 SECOND DIVISION
A.C. No. 10697, March 25, 2019
LARRY C. SEVILLA, COMPLAINANT, v. ATTY.
MARCELO C. MILLO, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
Before the Court is an administrative complaint1 filed on November
14, 2014 by complainant Larry C. Sevilla (complainant), before the
Office of the Bar Confidant,2 against respondent Atty. Marcelo C.
Millo (respondent), charging the latter of harassment, misconduct,
obstruction of justice and ignorance of the law.
The Facts
Complainant alleged that he is the publisher of Pampango Footprints
(Pampango), a provincial newspaper circulated in Tarlac
Province.3 Sometime in April 2014, he issued a statement of
account4 in the amount of P33,120.00 to Spouses Avelino and
Melendrina Manalo (Sps. Manalo) as fee for the publication of the
notice of auction sale relative to Sps. Manalo's petition for foreclosure
of mortgage, which was published in three (3) consecutive issues of
Pampango.5 Claiming that the publication fee was "exorbitant and
shocking," respondent, as Sps. Manalo's counsel, refused to settle the
account, threatened complainant that he would petition for the
disqualification of Pampango, and thereafter, wrote an undated
letter6 to the Executive Judge of the Regional Trial Court of Tarlac
City in furtherance of such threat.7 Consequently, complainant filed
this administrative complaint against respondent.
During the pendency of this complaint, Sps. Manalo negotiated for a
discount of fifty percent (50%), to which complainant agreed. Yet,
respondent intervened and forbade his clients to pay. For this reason,
complainant called respondent, but instead of explaining his side,
respondent shouted, "I am busy I don't want to talk to you!" and
banged his cellphone.8
For his part,9 respondent denied administrative liability, averring that
he merely acted on behalf of his clients, who found the fee "exorbitant
and shocking."10 He also claimed that after the Executive Judge
advised them to just settle the matter with complainant, he withdrew as
Sps. Manalo's counsel to give way to the said settlement.11 Finally, he
maintained that complainant's non-issuance of an affidavit of
publication and non-submission of copies of the issues where the
notice of auction sale was printed caused the non-completion of the
foreclosure proceedings.12
In a Resolution13 dated July 4, 2016, the Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report, and recommendation.
The IBP's Report and Recommendation
In a Report14 dated May 4, 2017, the Investigating Commissioner
found respondent administratively liable for violation of Rule
1.04,15 Canon 1 of the Code of Professional Responsibility (CPR), and
accordingly, recommended the penalty of reprimand or one (1)-month
suspension.16
The Investigating Commissioner found that the matter simply involves
a misunderstanding in the collection of publication fee which could
have easily been settled if respondent did not prevent the settlement. In
this relation, the Investigating Commissioner pointed out that Sps.
Manalo had already successfully negotiated for a settlement, but the
same did not push through because of respondent.17 Further, the
Investigating Commissioner noted that the respondent's claim of
withdrawal as Sps. Manalo's counsel was belied by complainant's
allegation that respondent intervened and forbade his clients to pay,
which respondent did not deny.18
In a Resolution19 dated February 22, 2018, the IBP Board of
Governors adopted the Investigating Commissioner's Report, with
modification lowering the recommended penalty of suspension from
the practice of law for a period of one (1) month to mere reprimand.
The Issue Before the Court
The essential issue for the Court's resolution is whether or not
respondent should be administratively sanctioned for the acts
complained of.
The Court's Ruling
The Court concurs and affirms the findings of the IBP Board of
Governors with modification as to the penalty.
It is well to stress that lawyers owe fidelity to the cause of their clients
and are expected to serve the latter with competence and diligence.
Consequently, lawyers are entitled to employ every honorable means
to defend the cause of their clients and secure what is due
them.20 However, professional rules set limits on a lawyer's zeal and
hedge it with necessary restrictions and qualifications.21 In this regard,
Canon 1 of the CPR provides that lawyers "shall uphold the
Constitution, obey the laws of the land and promote respect for law
and of legal processes." In furtherance thereto, Rule 1.04 of the CPR
mandates lawyers to "encourage [their] clients to avoid, end, or settle a
controversy if it will admit of a fair settlement."
Guided by the foregoing, the Court agrees with the findings of the
Investigating Commissioner, as affirmed by the IBP Board of
Governors, that respondent indeed fell short of what is expected of
him, despite his avowed duties as officer of the court. Records reveal
that respondent did not endeavor to initiate the settlement of the
publication fee being charged by complainant. Disagreeing with the
statement of account, respondent chose not to pay and immediately
referred the matter to the Executive Judge, instead of negotiating and
discussing the matter with complainant. Remarkably, respondent's
obstinate refusal to settle culminated in forbidding his clients, Sps.
Manalo, to pay the reduced publication fee, which the latter secured
for themselves. He even shouted at and ignored complainant when the
latter called him up in an effort to finally settle. Ultimately,
respondent's acts, which are violative of Rule 1.04, Canon 1 of the
CPR, prejudiced his clients as they resulted in the non-completion of
the foreclosure proceedings, since complainant did not issue the
affidavit of publication nor provide copies of the issues where the
notice of auction sale was actually printed.
Anent the proper penalty to be imposed on respondent, under the
circumstances and considering that this is his first offense, the Court
finds it appropriate to impose on respondent the penalty of suspension
from the practice of law for a period of one (1) month. This is in line
with the Court's ruling in Caspe v. Mejica,22 where respondent therein
was suspended for violating Rule 1.04, Canon 1 of the CPR, among
others. Similarly, the Court has held that suspension is appropriate
when a lawyer knows that he is violating a court order or rule, and
there is injury or potential injury to a client or a party, or interference
or potential interference with a legal proceeding,23 as in this case.
As a final note, it must be emphasized that membership in the legal
profession is a privilege burdened with conditions. A lawyer is
required to observe the law and be mindful of his or her actions
whether acting in a public or private capacity. Any transgression of
this duty on his part would not only diminish his reputation as a lawyer
but would also erode the public's faith in the legal profession as a
whole.24 As such, the Court will not hesitate to impose the necessary
penalty to a lawyer whose conduct falls short of the exacting standards
expected of him as a member of the Bar.25
WHEREFORE, respondent Atty. Marcelo C. Millo (respondent) is
hereby SUSPENDED from the practice of law for a period of one (1)
month, with a STERN WARNING that a repetition of the same or
similar act will be dealt with more severely.
The suspension in the practice of law shall take effect immediately
upon receipt of this Decision by respondent. He is DIRECTED to
immediately file a Manifestation to the Court that his suspension has
started, copy furnished all courts and quasi-judicial bodies where he
has entered his appearance as counsel.
Let copies of this Decision be furnished the Office of the Bar
Confidant to be appended to respondent's personal record as an
attorney; the Integrated Bar of the Philippines for its information and
guidance; and the Office of the Court Administrator for circulation to
all courts in the country.
SO ORDERED.
Carpio (Chairperson), Caguioa, J. Reyes, Jr., and Lazaro-Javier, JJ.,
concur.
 A.C. No. 11584 (Formerly CBD Case No. 12-3604),
March 06, 2019
ROLANDO T. KO, COMPLAINANT, v. ATTY. ALMA
UY-LAMPASA, RESPONDENT.
DECISION
CAGUIOA, J.:
Before the Court is an administrative complaint1 for disbarment filed
by Rolando T. Ko (complainant) against Atty. Alma Uy-Lampasa
(respondent) with the Commission on Bar Discipline (CBD),
Integrated Bar of the Philippines (IBP).2
Complaint
In his Complaint dated October 2, 2012, complainant alleged that
respondent violated the Code of Professional Responsibility for
Lawyers (CPR). First, he claimed that respondent notarized two
purported deeds of sale between Jerry Uy (Jerry) and the Sultan
siblings (heirs of a certain Pablo Sultan) over a parcel of land despite
knowing that the two deeds of sale were spurious. From the records, it
appears that the Sultan siblings are: Pablito, Anicieto, Cristita, Juanito,
Felix, Leonardo, Crispen,3 Lilia, Victoriano and Lucita.4
The Deeds of Absolute Sale dated October 12, 20115 and October 19,
2011,6 are similar in the following respects: the vendee, the property
covered, and the consideration. However, the two deeds differ as
regards the name of the vendors. For the Deed dated October 12, the
vendors named were Juanito, Felix, Leonardo, Crispen, Lilia, Pablito,
Victoriano and Lucita, but only Leonardo, Lilia and Victoriano signed
the deed. For the Deed dated October 19, Victoriano and Lucita were
not included in the vendors and among those named, i.e., Juanito,
Felix, Leonardo, Crispen, Pablito, and Lilia, Pablito did not sign the
deed. It is noted that only eight of the ten Sultan siblings are involved,
as Anicieto and Cristita do not appear in either of the deeds.
In this regard, complainant claimed that an Extra-judicial Settlement of
Estate with Absolute Sale7 (Extra-judicial Settlement) covering the
same property was executed on October 20, 2011 between his son,
Jason U. Ko (Jason), and all ten of the Sultan siblings. Complainant
calls the attention of the Court to the fact that in contrast with the
deeds of sale notarized by respondent, this Extra-judicial Settlement
contains the signatures and thumbmarks of all the Sultan siblings.
Second, complainant also claimed that respondent, as counsel for Jerry
(the vendee in the abovementioned Deeds of Sale), filed a malicious
case of Estafa against his son Jason and the Sultan siblings, grounded
on the allegation that the Extra-judicial Settlement was not published
when in fact, it was published as evidenced by an Affidavit of
Publication.8
Lastly, complainant averred that respondent also committed perjury
and has filed pleadings in court without the necessary Mandatory
Continuing Legal Education (MCLE) compliance number, attaching to
his complaint several pleadings and manifestations in support of such.9
Answer
In her Answer10 dated November 10, 2012, respondent countered that
she has not violated any provision of the CPR, arguing that: (1) the
matter of whether the deeds of sale were spurious is now the subject of
separate cases pending in court and with the City Prosecutor's Office
of Catbalogan City, Western Samar; (2) the determination of whether
the estafa case is malicious is within the jurisdiction of the City
Prosecutor's Office conducting the preliminary investigation; and (3)
she was exempted from MCLE requirements for the first up to the
third compliance period because she was a former judge, and that she
is currently in the process of complying with the requirement for the
latest compliance period.11
12
Subsequently, the parties submitted their Reply and
Rejoinders13 before the CBD in support of their arguments and
counter-arguments. A mandatory conference was held on September
19, 2013 and upon its termination, both parties submitted their
respective position papers.14
Report and Recommendation of the Investigating Commissioner
On December 18, 2013, the Investigating Commissioner of the CBD
issued a Report and Recommendation,15 the pertinent portions of
which are reproduced below:
xxx Stripped of the non-essentials, a scrutiny of the records would
show that respondent has, indeed, notarized two (2) documents of sale
involving the same parties but containing different dates of
notarization. Respondent has never denied notarizing the subject
documents in her verified answer and in her subsequent pleadings filed
before the CBD. Very clearly, this alone is a violation of the notarial
law. Moreover, there is sufficient evidence to prove that respondent
failed to indicate her MCLE Compliance Certificate Number in
various pleadings filed before the courts and the Prosecutors Office of
Catbalogan City, Western Samar. Her argument that she was on the
process of obtaining her MCLE certificate for the latest compliance
period does not, in any way, exempt her from the mandate of the
circular. Prudence dictates that respondent should have refrained from
signing pleadings while her MCLE certificate is being processed.
Unfortunately, however, she failed to do so.
WHEREFORE, PREMISES CONSIDERED, it is recommended
that respondent shall be suspended as a Notary Public for a period
of SIX (6) MONTHS with a stern warning that a repetition of the
same shall be dealt with more severely.16 (Emphasis and underscoring
supplied)
Resolution of the IBP Board of Governors
In a Resolution17 dated October 11, 2014, the IBP Board of Governors
(IBP Board) adopted and approved the Report and Recommendation
of the Investigating Commissioner, finding the same to be fully
supported by the evidence on record and applicable laws. The IBP
Board found that respondent indeed violated the 2004 Rules on
Notarial Practice and Bar Matter No. (B.M.) 850. However, the IBP
Board modified the recommendation of the Investigating
Commissioner and imposed on respondent the penalty of immediate
revocation of her notarial commission and disqualification for re-
appointment as notary public for two (2) years, not six months as
recommended by the Investigating Commissioner. In addition, the IBP
Board also suspended respondent from the practice of law for a
period of six (6) months.
Respondent filed a Motion for Reconsideration18 (MR), which was
denied by the IBP Board in a Resolution19 dated February 25, 2016.
The Court notes that in respondent's MR before the IBP Board, she
argued that the latter merely adopted the Report and Recommendation
of the Investigating Commissioner, which was likewise not exhaustive
enough in its findings and conclusions. Moreover, respondent claimed
that the IBP Board failed to cite any specific violation of the Notarial
and MCLE Rules. Lastly, respondent argued that the IBP Board
increased the penalty imposed on her without citing any additional fact
or basis.
Indeed, despite the numerous submissions of the parties, the Report
and Recommendation of the Investigating Commissioner as well as the
Resolutions of the IBP Board leave much to be desired. Thus, the
Court shall expound on respondent's administrative liability.
Ruling of the Court

Non-compliance with the MCLE Requirements
On the issue of compliance with the MCLE, the Court disagrees with
the Investigating Commissioner and the IBP Board.
B.M. 850 requires members of the IBP to undergo continuing legal
education "to ensure that throughout their career, they keep abreast
with law and jurisprudence, maintain the ethics of the profession and
enhance the standards of the practice of law."20 The First Compliance
Period for the MCLE requirement was from 15 April 2001 to 14 April
2004; the Second Compliance Period was from 15 April 2004 to 14
April 2007; and the Third Compliance Period was from 15 April 2007
to 14 April 2010; and the Fourth Compliance Period was from 15
April 2010 to 14 April 2013.21
Here, complainant alleged that in several pleadings filed by
respondent, the latter did not indicate her MCLE compliance number.
He cited five pleadings filed by respondent which were dated
December 7, 2011,22 February 25, 2012,23 March 8, 2012,24 and two
pleadings dated March 27, 2012,25 thus falling under the Fourth
Compliance Period.
For her part, respondent explained that she was exempted from MCLE
compliance for the First, Second, and Third Compliance Periods, until
she resigned as a judge on March 2010. After which, she endeavored
to comply with the Fourth Compliance Period while also in the
process of requesting copies of her certificate of exemption.26
The Court notes that respondent eventually completed the required
units on May 19, 2012, which is still within the Fourth Compliance
Period. Likewise, she was also issued Certificates of Exemption27 on
September 4, 2012 for the First, Second, and Third Compliance
Periods.28
Moreover, respondent manifested that the presiding judge of the
Regional Trial Court (RTC) where the cases involved were pending
required her to submit her Certificates of Compliance. When
respondent received said certificates, she immediately submitted the
same to the trial court.29
In finding respondent administratively liable, the IBP Board merely
stated that she violated B.M. 850. The relevant provisions thereof are
Rules 12 and 13, which provide:
RULE 12
Non-Compliance Procedures
xxxx
SECTION 2. Non-compliance Notice and 60-day Period to Attain
Compliance. — Members failing to comply will receive a Non-
Compliance Notice stating the specific deficiency and will be given
sixty (60) days from the date of notification to file a response
clarifying the deficiency or otherwise showing compliance with the
requirements. xxx
xxxx
Members given sixty (60) days to respond to a Non-Compliance
Notice may use this period to attain the adequate number of
credit units for compliance. xxx
RULE 13
Consequences of Non-Compliance
SECTION 1. Non-compliance Fee. — A member who, for whatever
reason, is in non-compliance at the end of the compliance period
shall pay a non-compliance fee.
SECTION 2. Listing as Delinquent Member. — A member who fails
to comply with the requirements after the sixty (60) day period for
compliance has expired, shall be listed as a delinquent member of
the IBP upon the recommendation of the MCLE Committee. The
investigation of a member for non-compliance shall be conducted by
the IBP's Commission on Bar Discipline as a fact-finding arm of the
MCLE Committee. (Emphasis and underscoring supplied)
Based on the rules, an IBP member shall only be declared delinquent
for failure to comply with the education requirements "after the sixty
(60) day period for compliance has expired." This 60-day period shall
commence from the time such member received a notice of non-
compliance. Without the notice of compliance, a member who believes
that the units he or she had taken already amounts to full compliance
may be declared delinquent without being made aware of such lack of
units and with no chance to rectify the same.30
In the instant case, there is no showing that respondent had ever been
issued a Notice of Non-Compliance. On the contrary, the records show
that for the first to third compliance periods, she was exempted for
being a member of the judiciary, and that she was able to complete the
requirements for the fourth compliance period. The Court also notes
that when complainant filed the disbarment case on October 12, 2012,
respondent still had until April 14, 2013 to comply with the fourth
compliance period. She eventually completed the required units on
May 19, 2012. Thus, there is no reason for respondent to be held liable
and declared delinquent under B.M. 850.
Violation of the Notarial Rules
Despite the foregoing, the Court agrees with the IBP Board that
respondent can be held liable for violation of the Rules on Notarial
Practice.
The act of notarization is impressed with public interest. As such, a
notary public must observe the highest degree of care in complying
with the basic requirements in the performance of his or her duties in
order to preserve the confidence of the public in the integrity of the
notarial system.31 In this case, respondent failed to faithfully comply
with her duties as a notary public.
It appears that respondent notarized two Deeds of Absolute Sale
covering the same property and involving substantially the same
parties. In the October 12, 2011 Deed of Absolute Sale, the
Acknowledgement reads in part:
BEFORE ME, a Notary Public for and in the Province of
Samar, personally appeared JUANITO A. SULTAN, FELIX A.
SULTAN, LEONARDO A. SULTAN, CRISPEN A. SULTAN, LILIA
A. SULTAN, PABLITO A. SULTAN, VICTORIANO A. SULTAN,
LUCITA S. UY and JERRY I. UY, exhibiting to me their
Community Tax Certificate numbers, known to me to be the same
persons who executed the foregoing instrument, which they
acknowledged to me as their free and voluntary act and
deed.32 (Emphasis supplied)
However, among the vendors, only Leonardo, Lilia, and Victoriano
actually signed the deed. Details of the Community Tax Certificate
(CTC) of Juanito, Felix, and Crispen were provided, but they did not
sign the deed. As for Pablito and Lucita, the space for the signature
and identification details was left blank.
Likewise, in the October 19, 2011 Deed of Absolute Sale, the
Acknowledgement reads in part:
BEFORE ME, a Notary Public for and in the Province of
Samar, personally appeared JUANITO A. SULTAN, FELIX A.
SULTAN, LEONARDO A. SULTAN, CRISPEN A. SULTAN, LILIA
A. SULTAN, PABLITO A. SULTAN, and JERRY I. UY, exhibiting
to me their Community Tax Certificate numbers, known to me to
be the same persons who executed the foregoing instrument,
which they acknowledged to me as their free and voluntary act and
deed.33 (Emphasis supplied)
As compared with the earlier deed, this latter deed no longer contains
the names of Victoriano and Lucita as vendors. Also, while Juanito,
Felix, Leonardo, Crispen, and Lilia appear to have signed, there was
no signature for Pablito even though he was listed as a vendor.
In this regard, the Court notes that complainant submitted a copy of
another deed of sale involving the same property, specifically the
Extra-judicial Settlement between his son Jason and all the Sultan
siblings. In contrast with the Deeds of Sale notarized by respondent,
this Extra-judicial Settlement contains the names of all the Sultan
siblings, along with their signatures and thumbprints affixed on all
pages of the said document. Nonetheless, the issue on the genuineness
of these deeds is subject of a pending civil case; hence, the Court will
not rule on the matter. The instant resolution will focus on
respondent's administrative liability.
Section 6 of Rule IV of the 2004 Rules on Notarial Practice states:
SEC. 6. Improper Instruments or Documents. — A notary public
shall not notarize:
(a) a blank or incomplete instrument or document; or
(b) an instrument or document without appropriate notarial
certification.
Here, respondent clearly violated this provision when she notarized the
deeds of absolute sale despite the incomplete signature and
identification details of the vendors. Moreover, when the identification
details were indeed provided in the deeds, the proof of identity
indicated for all of them was the CTC Number.
Jurisprudence34 already holds that a CTC is not considered as
competent evidence of identity as it does not bear a photograph and a
signature of the individual concerned, as required in Rule II, Section
12 of the Notarial Rules.35
Worse, while there are some signatures that do appear on the
instruments, the vendors therein claimed that they did not actually sign
the deeds. In support of this, complainant attached in his Complaint
the counter-affidavits of some of the Sultan siblings in the estafa case
filed by Jerry (the vendee in the assailed deeds of sale), with
respondent as counsel. The pertinent portions of the counter-affidavits
are reproduced below:
In Victoriano Sultan's Counter-Affidavit,36 he stated that:
18. Later[,] I was surprised unpleasantly that the deed [of absolute
sale] had already been signed by my other siblings, by the witnesses[,]
and subscribed to before the notary public, which, on my part, I did
not appear before her. xxx37 (Emphasis supplied).
Similarly, Crispin Sultan stated in his Counter-Affidavit38 the
following:
15. Later[,] I was surprised to know that I supposedly appeared,
signed and acknowledged the deed before a notary public on 19
October 2011, the truth of the matter being that on such date I was in
Bacolod City discharging my duties as security guard[.]39 (Emphasis
supplied).
Also, in Felix Sultan's Counter-Affidavit,40 he stipulated that:
19. It is noteworthy that I did not appear before a notary public in
Catbalogan City supposedly to execute and sign any deed of
conveyance in the month of October 2011; and specifically[,] I did
not receive the amount of P500,000.00 from
complainant[.]41 (Emphasis supplied)
Lastly, Juanito Sultan made a similar statement as Felix's in his
Counter-Affidavit:42
22. It is noteworthy that I did not appear before a notary public in
Catbalogan City supposedly to execute and sign any deed of
conveyance in the month of October 2011; and specifically[,] I did
not receive the amount of P500,000.00 from
complainant[.]43 (Emphasis supplied)
This is also in clear violation of the Rules on Notarial Practice, Rule When respondent affixed her signature and notarial seal on the deeds
IV, Section 2 of which provides: of sale, she led the public to believe that the parties personally
appeared before her and attested to the truth and veracity of the
SEC. 2. Prohibitions. — xxx
contents thereof when in fact, they deny doing so. Respondent's
conduct is laden with dangerous possibilities, bearing in mind the
xxxx
conclusiveness accorded to the due execution of a document. Her
conduct did not only jeopardize the rights of the parties to the
instrument; it also undermined the integrity of a notary public and
(b) A person shall not degraded the function of notarization. Thus, respondent should be
perform a notarial act if liable for such act, not only as a notary public but also as a lawyer.
the person involved as
signatory to the For having violated the Notarial Rules, respondent also failed to
instrument or document adhere to Canon 1 of the CPR, which requires every lawyer to uphold
— the Constitution, obey the laws of the land, and promote respect for the
law and legal processes. She also violated Rule 1.01 of the CPR which
proscribes a lawyer from engaging in any unlawful, dishonest,
(1) is not in the notary's presence immoral, and deceitful conduct.
personally at the time of the
notarization; and Based on recent jurisprudence, a lawyer commissioned as a notary
public who fails to discharge his or her duties as such is penalized with
revocation of his or her notarial commission and disqualification from
(2) is not personally known to the notary being commissioned as a notary public for a period of two (2)
public or otherwise identified by the years.45 In addition, he or she may also be suspended from the practice
notary public through competent of law for a period of six (6) months for notarizing a document without
evidence of identity as defined by the appearance of the parties.46 Thus, the Court affirms the penalty
these Rules. (Emphasis and imposed by the IBP Board.
underscoring supplied)
WHEREFORE, finding Atty. Alma Uy-Lampasa GUILTY of
The Notarial Rules clearly mandate that before notarizing a document, violating the Rules on Notarial Practice and Rule 1.01 and Canon 1 of
the notary public should require the presence of the very person who the Code of Professional Responsibility, the Court
executed the same. Thus, he or she certifies that it was the same person hereby SUSPENDS her from the practice of law for six (6) months;
who executed and personally appeared before him to attest to the REVOKES her notarial commission, effective immediately;
contents and truth of what were stated therein. The presence of the and PROHIBITS her from being commissioned as a notary public for
parties to the deed is necessary to enable the notary public to verify the two (2) years. She is further WARNED that a repetition of the same or
genuineness of the signature.44 similar offense shall be dealt with more severely.
Let copies of this Decision be furnished to the Office of the Bar
Confidant, to be appended to the respondent's personal record as
attorney. Likewise, copies shall be furnished to the Integrated Bar of
the Philippines and all courts in the country for their information and
guidance.

SO ORDERED.

Carpio, (Chairperson), J. Reyes, Jr., and Hernando,*JJ., concur.

Perlas-Bernabe, J., on wellness leave.

SECOND DIVISION
 A.C. No. 9917, January 14, 2019
NORBERTO S. COLLANTES, Complainant, v. ATTY.
ANSELMO B. MABUTI, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This administrative case stemmed from a complaint
affidavit,1 executed on May 10, 2013, filed by complainant Norberto
S. Collantes (complainant) before the Office of the Bar Confidant,
Supreme Court, against respondent Atty. Anselmo B. Mabuti
(respondent) for violation of the 2004 Rules on Notarial Practice
(Notarial Rules)2 and of his duties as a lawyer.3
The Facts
Complainant alleged that on October 10, 2009, respondent notarized a
document entitled "Memorandum of Agreement"4 in the City of
Manila. Upon verification, however, he discovered that respondent
was not commissioned as a notary public in the City of Manila for the
years 2008- 2009. In support thereof, complainant attached a
Certification5 dated February 27, 2012 issued by the Notarial Section
of the Office of the Clerk of Court and Ex-Officio Sheriff of the
Regional Trial Court of Manila attesting to the same.
In his Comment6 dated January 15, 2014, respondent denied the
allegations and claimed that the signature in the "Memorandum of
Agreement" is not his. Respondent questioned complainant's motives
for filing the present case against him, claiming that the latter has
pending cases for Estafa filed against him.7 Finally, he prayed for the
dismissal of the complaint on the ground of double jeopardy.8 In this
regard, he pointed out that the present case is based on the same cause
of action subject of an earlier complaint, filed by a certain Mina S.
Bertillo before the Integrated Bar of the Philippines (IBP), docketed as
CBD Case No. 11-3036, for which he was disqualified from being
commissioned as a notary public for two (2) years.9 In support thereof,
he attached a copy of the Commissioner's Report10 dated August 3,
2012 and the IBP Board of Governor's Resolution11 dated March
21,2013 in CBD Case No. 11-3036.
The complaint was thereafter referred to the IBP for investigation,
report, and recommendation.12
The IBP's Report and Recommendation
In a Report and Recommendation13 dated December 7, 2016, the IBP
Investigating Commissioner (IBP-IC) found respondent
administratively liable for failure to comply with the Notarial Rules,
and accordingly, recommended that he be suspended from the practice
of law for a period of two (2) years.
The IBP-IC found the evidence convincing that respondent was indeed
not commissioned as a notary public at the time the subject
"Memorandum of Agreement" was notarized.14 Corollary thereto, the
IBP-IC brushed aside respondent's claim of double jeopardy, pointing
out that the present administrative action concerns an act that is
entirely different from the act for which he was found guilty of
violation of the Notarial Rules in CBD Case No. 11-3036, i.e., for
notarizing a letter dated December 28, 2010 when he was likewise not
commissioned as a notary public.
In a Resolution15 dated August 31, 2017, the IBP Board of Governors
adopted the above findings and recommendation with modification,
increasing the recommended penalty to: (a) perpetual disqualification
from being commissioned as a Notary Public since this is respondent's
second offense; (b) revocation of his notarial commission, if
subsisting; and (c) suspension for two (2) years from the practice of
law.
The Issue Before the Court
The issue for the Court's resolution is whether or not the IBP correctly
found respondent liable for violation of the 2004 Notarial Rules.
The Court's Ruling
The Court affirms the findings and adopts with modification the
recommendations of the IBP Board of Governors.
The Court has emphatically stressed that notarization is not an empty,
meaningless, routinary act. Notarization by a notary public converts a
private document into a public document making it admissible in
evidence without further proof of its authenticity.16 A notarial
document is, by law, entitled to full faith and credit,17 and as such,
notaries public are obligated to observe with utmost care the basic
requirements in the performance of their duties.18
For these reasons, notarization is invested with substantive public
interest, such that only those who are qualified or authorized may act
as notaries public.19 As a corollary to the protection of that interest,
those not qualified or authorized to act must be prevented from
imposing upon the public, the courts, and the administrative offices in
general.20 The requirements for the issuance of a commission as a
notary public must not be treated as a mere casual formality.21 Where
the notarization of a document is done by a member of the Philippine
Bar at a time when he has no authorization or commission to do so, an
act which the Court has characterized as reprehensible, constituting as
it does, not only malpractice, but also the crime of falsification of
public documents, the offender may be subjected to disciplinary
action.22 Jurisprudence provides that without a commission, a lawyer
is unauthorized to perform any of the notarial acts.23 A lawyer who
performs a notarial act without such commission violates the lawyer's
oath to obey the laws, more specifically, the Notarial Rules.24
In this case, the IBP found that respondent notarized the subject
document, "Memorandum of Agreement," without being
commissioned as a notary public at the time of notarization. This fact
has been duly certified to by none other than the Notarial Section of
the Office of the Clerk of Court and Ex-Officio Sheriff of the Regional
Trial Court of Manila.25 Thus, by knowingly performing notarial acts
at the time when he was not authorized to do so, respondent clearly
violated the Notarial Rules and in consequence, should be held
administratively liable.
It should be emphasized that respondent's transgressions of the
Notarial Rules also have a bearing on his standing as a
lawyer.26 In Virtusio v. Virtusio,27 the Court observed that "[a] lawyer
who notarizes a document without a proper commission violates his
lawyer's oath to obey the law. He makes it appear that he is
commissioned when he is not. He thus indulges in deliberate falsehood
that the lawyer's oath forbids. This violation falls squarely under Rule
1.01 of Canon 1 of the Code of Professional Responsibility and Canon
7 as well,"28 to wit:
CANON 1 – A lawyer shall uphold the constitution, obey the laws of
the land and promote respect for law and legal processes.
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral
or deceitful conduct.
CANON 7 – A lawyer shall at all times uphold the integrity and
dignity of the legal profession and support the activities of the
integrated bar.
Notably, while the Court agrees with the IBP's findings as regards
respondent's administrative liability, the Court, however, cannot adopt
the recommendation of the IBP Board of Governors to increase the
penalty against respondent to "[p]erpetual [d]isqualification from
being commissioned as [a] [n]otary [p]ublic"29 in view of an alleged
earlier infraction for which he was found guilty of violating the
Notarial Rules by the IBP in CBD Case No. 11-3036. After an
examination of respondent's personal record as a member of the Bar, it
has been ascertained that the resolution of the IBP in the said case has
yet to be forwarded to the Court for its approval. As case law explains,
the "[f]actual findings and recommendations of the [IBP] Commission
on Bar Discipline and the Board of Governors x x x are
recommendatory, subject to review by the Court."30 In Torres v.
Dalangin:31
It is the Supreme Court, not the IBP, which has the constitutionally
mandated duty to discipline lawyers. The factual findings of the IBP
can only be recommendatory. Its recommended penalties are also, by SO ORDERED.
their nature, recommendatory.32
Carpio (Chairperson), Caguioa, J. Reyes, Jr., and Hernando,*JJ.,
Thus, pending approval by the Court, the findings and resolution in concur.
CBD Case No. 11-3036 are only recommendatory, and hence (1) fail
to establish the fact that respondent has already been held liable for a
prior offense, and (2) cannot consequently serve to aggravate the
penalty in this case.
In fine, consistent with prevailing jurisprudence,33 respondent is meted
with the following: (a) suspension from the practice of law for one (1)
year; (b) immediate revocation of his notarial commission, if any; and
(c) disqualification from being commissioned as a notary public for a
period of one (1) year only.
WHEREFORE, the Court hereby finds respondent Atty. Anselmo B.
Mabuti (respondent) GUILTY of violation of the 2004 Rules on
Notarial Practice and of Rule 1.01, Canon 1 and Canon 7 of the Code
of Professional Responsibility. Accordingly, effective immediately,
the Court: SUSPENDS him from the practice of law for one (1)
year; REVOKES his incumbent commission as a notary public, if
any; and PROHIBITS him from being commissioned as a notary
public for one (1) year. He is WARNED that a repetition of the same
offense or similar acts in the future shall be dealt with more severely.
The suspension in the practice of law, revocation of notarial
commission, and disqualification from being commissioned as a
notary public shall take effect immediately upon receipt of this
Resolution by respondent. He is DIRECTED to immediately file a
Manifestation to the Court that his suspension has started, copy
furnished all courts and quasijudicial bodies where he has entered his
appearance as counsel.
Let copies of this Resolution be furnished the Office of the Bar
Confidant to be appended to respondent's personal record as an
attorney; the Integrated Bar of the Philippines for its information and
guidance; and the Office of the Court Administrator for circulation to
all courts in the country.