FIRST DIVISION

ROGELIO A. TAN, NORMA TAN G.R. No. 169517

and MALIYAWAO PAGAYOKAN,
Petitioners, Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
BENEDICTO M. BALAJADIA,
Respondent. Promulgated:

March 14, 2006

x ---------------------------------------------------------------------------------------- x

Before us is an original petition[1] for contempt filed by petitioners Rogelio

Tan, Norma Tan and Maliyawao Pagayokan against respondent Benedicto
Balajadia.

Petitioners allege that on May 8, 2005, respondent filed a criminal case

against them with the Office of the City of Prosecutor of Baguio City for usurpation
of authority, grave coercion and violation of city tax ordinance due to the alleged
illegal collection of parking fees by petitioners from respondent. In paragraph 5 of
the complaint-affidavit, respondent asserted that he is a practicing lawyer based
in BaguioCity with office address at Room B-207, 2/F Lopez Building, Session
Road, Baguio City.[2] However, certifications issued by the Office of the Bar
Confidant[3] and the Integrated Bar of the Philippines[4] showed that respondent has
never been admitted to the Philippine Bar. Hence, petitioners claim that respondent
is liable for indirect contempt for misrepresenting himself as a lawyer.

In his Comment,[5] respondent avers that the allegation in paragraph 5 of the

complaint-affidavit that he is a practicing lawyer was an honest mistake. He claims
that the secretary of Atty. Paterno Aquino prepared the subject complaint-affidavit
which was patterned after Atty. Aquinos complaint-affidavit.[6] It appears that Atty.
Aquino had previously filed a complaint-affidavit against petitioners involving the
same subject matter.

Respondent claims that two complaint-affidavits were drafted by the same

secretary; one for the May 5, 2005 parking incident at 10:00 oclock in the morning
and another for the parking incident on the same date but which occurred at 1:00
oclock in the afternoon. Respondent insists that the complaint-affidavit regarding
the 1:00 oclock parking incident correctly alleged that he is a businessman with
office address at Room B-204, 2/F Lopez Building, Session
Road, Baguio City.[7] However, the complaint-affidavit regarding the 10:00
oclock parking incident, which is the subject of the instant petition, erroneously
referred to him as a practicing lawyer because Atty. Aquinos secretary copied
verbatim paragraph 5 of Atty. Aquinos complaint-affidavit. Hence, it was
inadvertently alleged that respondent is a practicing lawyer based
in Baguio City with office address at Room B-207, 2/F Lopez Building, Session
Road, Baguio City, which statement referred to the person of Atty. Aquino and his
law office address.

Liza Laconsay, Atty. Aquinos secretary, executed an affidavit[8] admitting the

mistake in the preparation of the complaint-affidavit. Respondent alleged that he did
not read the complaint-affidavit because he assumed that the two complaint-
affidavits contained the same allegations with respect to his occupation and office
address. Respondent claims that he had no intention of misrepresenting himself as a
practicing lawyer.

In their Reply,[9] petitioners reiterate that respondent should be made liable for
indirect contempt for having made untruthful statements in the complaint-affidavit
and that he cannot shift the blame to Atty. Aquinos secretary.

The sole issue for resolution is whether respondent is liable for indirect
contempt.

Section 3(e), Rule 71 of the Rules of Court provides:

Section 3. Indirect contempt to be punished after charge and hearing. After

a charge in writing has been filed, and an opportunity given to the respondent to
 comment thereon within such period as may be fixed by the court and to be heard
by himself or counsel, a person guilty of any of the following acts may be punished
for indirect contempt:

xxxx

(e) Assuming to be an attorney or an officer of a court, and acting as such

without authority;

x x x x.

In several cases,[10] we have ruled that the unauthorized practice of law by

assuming to be an attorney and acting as such without authority constitutes indirect
contempt which is punishable by fine or imprisonment or both. The liability for the
unauthorized practice of law under Section 3(e), Rule 71 of the Rules of Court is in
the nature of criminal contempt and the acts are punished because they are an affront
to the dignity and authority of the court, and obstruct the orderly administration of
justice. In determining liability for criminal contempt, well-settled is the rule that
intent is a necessary element, and no one can be punished unless the evidence makes
it clear that he intended to commit it.[11]

In the case at bar, a review of the records supports respondents claim that he
never intended to project himself as a lawyer to the public. It was a clear
inadvertence on the part of the secretary of Atty Aquino. The affidavit of Liza
Laconsay attesting to the circumstances that gave rise to the mistake in the drafting
of the complaint-affidavit conforms to the documentary evidence on record. Taken
together, these circumstances show that the allegation in paragraph 5 of respondents
complaint-affidavit was, indeed, the result of inadvertence.

Respondent has satisfactorily shown that the allegation that he is a practicing

lawyer was the result of inadvertence and cannot, by itself, establish intent as to
make him liable for indirect contempt. In the cases where we found a party liable for
the unauthorized practice of law, the party was guilty of some overt act like signing
court pleadings on behalf of his client;[12] appearing before court hearings as an
attorney;[13] manifesting before the court that he will practice law despite being
previously denied admission to the bar;[14] or deliberately attempting to practice law
and holding out himself as an attorney through circulars with full knowledge that he
is not licensed to do so.[15]
 In the case at bar, no evidence was presented to show that respondent acted as
an attorney or that he intended to practice law. Consequently, he cannot be made
liable for indirect contempt considering his lack of intent to illegally practice law.

However, while the evidence on record failed to prove respondents deliberate

intent to misrepresent himself as an attorney and act as such without authority, he is
hereby warned to be more careful and circumspect in his future actions.

WHEREFORE, the petition is DISMISSED. Respondent is WARNED to

be more careful and circumspect in his future actions.

SO ORDERED.

AGUIRRE VS RANA
EN BANC[ B.M. No. 1036, June 10, 2003 ]
DONNA MARIE S. AGUIRRE, COMPLAINANT,
VS.
EDWIN L. RANA, RESPONDENT

Facts:

Rana was among those who passed the 2000 Bar Examinations. before the
scheduled mass oath-taking, complainant Aguirre filed against respondent a
Petition for Denial of Admission to the Bar.

The Court allowed respondent to take his oath. Respondent took the lawyer’s
oath on the scheduled date but has not signed the Roll of Attorneys up to now.

Complainant alleges that respondent, while not yet a lawyer, appeared as counsel
for a candidate in an election.

On the charge of violation of law, complainant claims that respondent is a

municipal government employee, being a secretary of the Sangguniang Bayan of
Mandaon, Masbate. As such, respondent is not allowed by law to act as counsel
for a client in any court or administrative body.

On the charge of grave misconduct and misrepresentation, complainant accuses

respondent of acting as counsel for vice mayoralty candidate George Bunan
without the latter engaging respondent’s services. Complainant claims that
respondent filed the pleading as a ploy to prevent the proclamation of the
winning vice mayoralty candidate.

Issue:

Whether or not respondent engaged in the unauthorized practice of law and thus
does not deserve admission to the Philippine Bar

Ruling:

the Court held that “practice of law” means any activity, in or out of court, which
requires the application of law, legal procedure, knowledge, training and
experience. To engage in the practice of law is to perform acts which are usually
performed by members of the legal profession. Generally, to practice law is to
render any kind of service which requires the use of legal knowledge or skill.

The right to practice law is not a natural or constitutional right but is a privilege.
It is limited to persons of good moral character with special qualifications duly
ascertained and certified. The exercise of this privilege presupposes possession of
integrity, legal knowledge, educational attainment, and even public trust since a
lawyer is an officer of the court. A bar candidate does not acquire the right to
practice law simply by passing the bar examinations. The practice of law is a
privilege that can be withheld even from one who has passed the bar
examinations, if the person seeking admission had practiced law without a
license.

True, respondent here passed the 2000 Bar Examinations and took the lawyer’s
oath. However, it is the signing in the Roll of Attorneys that finally makes one a
full-fledged lawyer. The fact that respondent passed the bar examinations is
immaterial. Passing the bar is not the only qualification to become an attorney-
at-law. Respondent should know that two essential requisites for becoming a
lawyer still had to be performed, namely: his lawyer’s oath to be administered by
this Court and his signature in the Roll of Attorneys.
 LUZVIMINDA C. LIJAUCO vs. ATTY. ROGELIO P. TERRADO
A.C. No. 6317, August 31, 2006

FACTS:

Sometime in January 2001, Luzviminda C. Lijauco engaged the services of Atty. Rogelio P.

Terrado for P 70,000 to assist in recovering her deposit with Planters Development Bank in the

amount of P180,000 and the release of her foreclosed house and lot located in Calamba, Laguna.

The said foreclosed house and lot is the subject of a petition for the issuance of writ of possession

then pending before the RTC of Binan Laguna docketed as LRC Case No. B-2610.

Ms. Lijauco alleged that Atty. Terrado failed to appear in the hearing for the issuance of

Writ of Possession and did not protect her interest in allowing her to participate in a Compromise

Agreement in order to end the LRC Case No. B-2610. She filed an administrative complaint against

Atty. Terrado for gross misconduct, malpractice and conduct unbecoming of an officer of the

court. In his defense, Atty. Terrado claims that the P 70,000 legal fees he received is purely and

solely for the recovery of the P 180,000 savings account. The complaint was then referred to the

Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The

Investigating Commissioner submitted his report finding Atty. Terrado guilty of violating Rule

1.01 and 9.02 of the Code of Professional Responsibility (CPR) and recommended that he be
suspended from the practice of law for six (6) months. The IBP Board of Governors adopted the

recommendation of the investigating commissioner.

ISSUE:

Whether or not the ruling of the IBP Board of Governors is proper?

HELD:

Yes. The Supreme Court agreed with the findings of the IBP. The records show that Atty.

Terrado acted as complainant’s counsel in the drafting of the compromise agreement between

Ms. Lijauco and the bank regarding LRC Case No. B-2610. He lured Ms. Lijauco to participate in a

compromise agreement with a false and misleading assurance that the latter can still recover her

foreclosed property even after three years from foreclosure. Atty. Terrado violated Rule 1.01

Canon 1 of the CPR which says that a lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct. Furthermore, the Investigating Commissioner observed that the fee of P

70,000 for legal assistance in the recovery of the deposit amounting to P 180,000 is unreasonable

and is violative of Canon 20 of the CPR. Atty. Terrada was also found guilty of violating Rule 9.02

of the CPR by openly admitting that he divided the legal fees with two other people as a referral

fee.
PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HON. BONIFACIO SANZ
MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique, and
AVELINO T. JAVELLANA, respondents. |||

FACTS

Atty Avelino Javellana was imputed with supplying guns and being the plotter
of the gunning of ex-Governor of Antique. He was at large, and when he was
arrested respondent judge ruled in favor of the motion to allow IBP to take
custody of him. Respondent judge also allowed him to go on medical check ups.

On the hearing for bail of Atty Javellana, Senior provincial prosecutor moved
that the hearing be rescheduled but such was denied. On the day of the
hearing, Assistant Provincial Prosecutor was arrested for contempt of court for
“walking out”.

Detailed Facts
1.In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio
Javier, was gunned down in the plaza of San Jose, Antique
2.Immediately thereafter,a complaint against John Paloy and Vicente Vegafria
was filed with the Office of the Provincial Prosecutor.
3.During the preliminary investigation, private respondent Avelino T. Javellana
appeared as counsel for the accused,
4.Then Federico Carluto, Jr.,Evelyn Magara and Fritz Xavier executed affidavits
implicating private respondent, Avelino Javellana in the killing of the late
Evelio Javier.
5.Private respondent Avelino T. Javellana, together with John Paloy, Vicente
Vegafria, Eduardo Iran alias "Boy Muslim", alias "Muklo", Rudolfo Pacificador
Alias "Ding", Arturo F. Pacificador and several John Does, were charged with
the crime of murder, frustrated murder and for four (4) counts of attempted
murder.
6.Of the nineteen (19) accused, only six (6) had been apprehended and/or
surrendered, namely: John Paloy, Vicente Vegafria, Rolando Bernardino, Jesus
Garcia y Amorsolo alias "Nono Picoy", Jose Delumen alias "Winfield" and Romeo
Nagales alias "Reming". All the others were at large, including herein private
respondent Avelino Javellana.
7.On 12 May 1989, private respondent was arrested by the Constabulary
Security Group (CSG) in Parañaque, Metro Manila.
8.Affidavits of Tianzon imputed that Respondent Javellana supplied them with
the guns and was the plotter
9.Respondent Judge promulgated a resolution which concludes Respondent
Javellana did not supply such guns, was not the plotter and that there are not
enough evidence to substantiate such claim.
10.Upon receipt of the resolution, prosecution through Senior State Prosecutor
Aurelio C. Trampe, immediately filed a motion to inhibit the respondent Judge,
on the ground of manifest partiality to private respondent,
11.Afterwards, the prosecution filed a motion for reconsideration 30 of the
order of 1 September 1989 which denied the prosecution's motion to discharge
accused Oscar Tianzon.
12.At the hearing for Resp. Javellana’s bail, only Assistant Provincial
Prosecutor John Turalba appeared for the prosecution, manifesting that he was
appearing only to reiterate the Senior State Prosecutor's motion for deferment
of the scheduled hearings on private respondent's petition for bail. Private
respondent opposed the motion. The respondent Judge denied the motion, and
directed the prosecution to present its evidence in opposition to the private
respondent's petition for bail.
13.The Asst Prosecutor moved for reconsideration, but was denied.
14.At this juncture, the Assistant Provincial Prosecutor manifested that he was
not participating in the proceedings and begged to be allowed to leave the
courtroom, which the respondent Judge refused.
15.Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and,
while walking towards the door, respondent Judge ordered the Sheriff to arrest
him. Thereafter, respondent Judge issued an order finding Assistant Provincial
Prosecutor John Turalba in contempt of court;
16.Bail to Responent Javellana was approved, and Asst Provincial Prosecutor
was penalized with 10 days imprisonment.
17.Hence, a petition to inhibit the judge is filed.

ISSUES
(1) Did the respondent judge acted with grave abuse of discretion?
No.
The respondent Judge, however, has, to our mind, sufficiently explained
in the order of 7 August 1989 the reasons behind the issuance of the
aforesaid orders.
Considering the foregoing, the Court finds and so holds that respondent Judge
did not commit grave abuse of discretion, i.e., that he did not act "arbitrarily",
"capriciously" or "despotically" amounting to lack or excess of jurisdiction in
issuing the questioned orders of 3, 7 and 8 August 1989.

(2) Was the contempt of court penalty proper? No.

Contempt of court presupposes a contumacious attitude, a flouting or arrogant
belligerence, a defiance of the court. 41 And, while courts are inherently
empowered to punish for contempt to the end that they may enforce their
authority, preserve their integrity, maintain their dignity, and insure the
effectiveness of the administration of justice, 42 nevertheless, such power
should be exercised on the preservative and not on the vindictive principle, for
the power to punish for contempt, being drastic and extraordinary in its
nature, should not be resorted to unless necessary in the interest of justice. 43
A perusal of the transcript of the hearing held on 14 September 1989 shows
that Assistant Provincial Prosecutor John Turalba had not made any statement
that could be considered as "contumacious" or an affront to the dignity of the
court. And, while the act of Assistant Provincial Prosecutor Turalba of "walking
out" does not meet our approval — as he should have stayed after the
respondent Judge had denied his motion for permission to leave the courtroom
— yet, the respondent Judge, in ordering the incarceration of Assistant
Provincial Prosecutor Turalba, acted beyond the permissible limits of his power
to punish for contempt. LexLib

(3) SHOULD THE JUDGE BE ORDERED TO INHIBIT IN THE CASE? - It is premature

to rule upon.

And now to the question on whether or not respondent Judge should be

disqualified from further hearing Crime. Cases Nos. 3350-3355, Section 1, Rule
137 of the Rules of Court provides:
 "Section 1. Disqualification of judges. — No judge or judicial officer
shall sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or
affinity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject
of review, without the written consent of all parties in interest, signed
by them and entered upon the records.
"A judge, may in the exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons other than those
mentioned above."
In the case at bar, the reason relied upon for the inhibition or disqualification
of respondent Judge, i.e. manifest partiality to private respondent, is not
based on any of the grounds enumerated in the first paragraph of Section 1,
Rule 137 which per se disqualifies a judge from sitting in a case, but on the
second paragraph thereof. The settled rule is that the judge is left to decide
for himself whether he will desist, for just or valid reasons, from sitting in a
case. Respondent Judge has not as yet decided whether or not he will inhibit
himself from further hearing Criminal Cases Nos. 3350-3355 in the face of the
prosecution's motion to disqualify or inhibit him. It would be premature for the
Court at this stage to rule on the matter.