Professional Documents
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BLE IIIA DutiesAndResponsibilitiesTOSOCIETY
BLE IIIA DutiesAndResponsibilitiesTOSOCIETY
3319 June 8, 2000 However, complainant again discovered that the illicit relationship
between her husband and respondent continued, and that sometime in
LESLIE UI, Complainant, December 1988, respondent and her husband, Carlos Ui, had a second
vs. child. Complainant then met again with respondent sometime in March
ATTY. IRIS BONIFACIO, Respondent. 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
DE LEON, JR., J.: employed by her husband in his company.
Before us is an administrative complaint for disbarment against Atty. A complaint for disbarment, docketed as Adm. Case No. 3319, was
Iris Bonifacio for allegedly carrying on an immoral relationship with then filed on August 11, 1989 by the complainant against respondent
Carlos L. Ui, husband of complainant, Leslie Ui. Atty. Iris Bonifacio before the Commission on Bar Discipline of the
Integrated Bar of the Philippines (hereinafter, Commission) on the
The relevant facts are: ground of immorality, more particularly, for carrying on an illicit
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the relationship with the complainant's husband, Carlos Ui. In her
Our Lady of Lourdes Church in Quezon City 1 and as a result of their Answer, 2 respondent averred that she met Carlos Ui sometime in 1983
marital union, they had four (4) children, namely, Leilani, Lianni, and had known him all along to be a bachelor, with the knowledge,
Lindsay and Carl Cavin, all surnamed Ui. Sometime in December however, that Carlos Ui had children by a Chinese woman in Amoy,
1987, however, complainant found out that her husband. Carlos Ui, China, from whom he had long been estranged. She stated that during
was carrying on an illicit relationship with respondent Atty. Iris one of their trips abroad, Carlos Ui formalized his intention to marry
Bonifacio with whom he begot a daughter sometime in 1986, and that her and they in fact got married in Hawaii, USA in 1985 3. Upon their
they had been living together at No. 527 San Carlos Street, Ayala return to Manila, respondent did not live with Carlos Ui. The latter
Alabang Village in Muntinlupa City. Respondent who is a graduate of continued to live with his children in their Greenhills residence
the College of Law of the University of the Philippines was admitted because respondent and Carlos Ui wanted to let the children gradually
to the Philippine Bar in 1982. to know and accept the fact of his second marriage before they would
live together. 4
Carlos Ui admitted to complainant his relationship with the
respondent. Complainant then visited respondent at her office in the In 1986, respondent left the country and stayed in Honolulu, Hawaii
later part of June 1988 and introduced herself as the legal wife of and she would only return occasionally to the Philippines to update her
Carlos Ui. Whereupon, respondent admitted to her that she has a child law practice and renew legal ties. During one of her trips to Manila
with Carlos Ui and alleged, however; that everything was over sometime in June 1988, she was confronted by a woman who insisted
between her and Carlos Ui. Complainant believed the representations that she was the lawful wife of Carlos Ui. Hurt and desolate upon her
of respondent and thought things would turn out well from then on and discovery of the true civil status of Carlos Ui, respondent then left for
that the illicit relationship between her husband and respondent would Honolulu, Hawaii sometime in July 1988 and returned only in March
come to an end. 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 1987 when she and respondent Carlos were still living at No. 26
with her. Potsdam Street, Northeast Greenhills, San Juan, Metro Manila and
they, admittedly, continued to live together at their conjugal home up
It is respondent's contention that her relationship with Carlos Ui is not
to early (sic) part of 1989 or later 1988, when respondent Carlos left
illicit because they were married abroad and that after June 1988,
the same.
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 From the above, it would not be amiss to conclude that altho (sic) the
her in Alabang, and that he resided at 26 Potsdam Street, Greenhills, relationship, illicit as complainant puts it, had been prima
San Juan, Metro Manila. It was respondent who lived in Alabang in a facie established by complainant's evidence, this same evidence had
house which belonged to her mother, Rosalinda L. Bonifacio; and that failed to even prima facie establish the "fact of respondent's
the said house was built exclusively from her parents' funds. 6 By way cohabitation in the concept of husband and wife at the 527 San Carlos
of counterclaim, respondent sought moral damages in the amount of St., Ayala Alabang house, proof of which is necessary and
Ten Million Pesos (Php10,000,000.00) against complainant for having indispensable to at least create probable cause for the offense charged.
filed the present allegedly malicious and groundless disbarment case The statement alone of complainant, worse, a statement only of a
against respondent. conclusion respecting the fact of cohabitation does not make the
complainant's evidence thereto any better/stronger (U.S. vs. Casipong
In her Reply 7 dated April 6, 1990, complainant states, among others,
and Mongoy, 20 Phil. 178).
that respondent knew perfectly well that Carlos Ui was married to
complainant and had children with her even at the start of her It is worth stating that the evidence submitted by respondents in
relationship with Carlos Ui, and that the reason respondent went support of their respective positions on the matter support and bolster
abroad was to give birth to her two (2) children with Carlos Ui. the foregoing conclusion/recommendation.
During the pendency of the proceedings before the Integrated Bar, WHEREFORE, it is most respectfully recommended that the instant
complainant also charged her husband, Carlos Ui, and respondent with complaint be dismissed for want of evidence to establish probable
the crime of Concubinage before the Office of the Provincial Fiscal of cause for the offense charged.
Rizal, docketed as I.S. No. 89-5247, but the same was dismissed for
RESPECTFULLY SUBMITTED. 8
insufficiency of evidence to establish probable cause for the offense
charged. The resolution dismissing the criminal complaint against Complainant appealed the said Resolution of the Provincial Fiscal of
respondent reads: Rizal to the Secretary of Justice, but the same was dismissed 9 on the
ground of insufficiency of evidence to prove her allegation that
Complainant's evidence had prima facie established the existence of
respondent and Carlos Ui lived together as husband and wife at 527
the "illicit relationship" between the respondents allegedly discovered
San Carlos Street, Ayala Alabang, Muntinlupa, Metro Manila.
by the complainant in December 1987. The same evidence however
show that respondent Carlos Ui was still living with complainant up to In the proceedings before the IBP Commission on Bar Discipline,
the latter part of 1988 and/or the early part of 1989. complainant filed a Motion to Cite Respondent in Contempt of the
Commission 10 wherein she charged respondent with making false
It would therefore be logical and safe to state that the "relationship" of
allegations in her Answer and for submitting a supporting document
respondents started and was discovered by complainant sometime in
which was altered and intercalated. She alleged that in the Answer of
respondent filed before the Integrated Bar, respondent averred, among (ii) Complainant failed to prove her allegation that respondent
others, that she was married to Carlos Ui on October 22, 1985 and conducted herself in an immoral manner.
attached a Certificate of Marriage to substantiate her averment.
In her defense, respondent contends, among others, that it was she who
However, the Certificate of Marriage 11 duly certified by the State
was the victim in this case and not Leslie Ui because she did not know
Registrar as a true copy of the record on file in the Hawaii State
that Carlos Ui was already married, and that upon learning of this fact,
Department of Health, and duly authenticated by the Philippine
respondent immediately cut-off all her ties with Carlos Ui. She stated
Consulate General in Honolulu, Hawaii, USA revealed that the date of
that there was no reason for her to doubt at that time that the civil
marriage between Carlos Ui and respondent Atty. Iris Bonifacio was
status of Carlos Ui was that of a bachelor because he spent so much
October 22, 1987, and not October 22, 1985 as claimed by respondent
time with her, and he was so open in his courtship. 18
in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said On the issue of the falsified marriage certificate, respondent alleged
IBP that the birth of her first child by Carlos Ui was within the that it was highly incredible for her to have knowingly attached such
wedlock. 12 It is the contention of complainant that such act constitutes marriage certificate to her Answer had she known that the same was
a violation of Articles 183 13 and 184 14 of the Revised Penal Code, altered. Respondent reiterated that there was no compelling reason for
and also contempt of the Commission; and that the act of respondent in her to make it appear that her marriage to Carlos Ui took place either
making false allegations in her Answer and submitting an in 1985 or 1987, because the fact remains that respondent and Carlos
altered/intercalated document are indicative of her moral perversity Ui got married before complainant confronted respondent and
and lack of integrity which make her unworthy to be a member of the informed the latter of her earlier marriage to Carlos Ui in June 1988.
Philippine Bar. Further, respondent stated that it was Carlos Ui who testified and
admitted that he was the person responsible for changing the date of
In her Opposition (To Motion To Cite Respondent in
the marriage certificate from 1987 to 1985, and complainant did not
Contempt), 15 respondent averred that she did not have the original
present evidence to rebut the testimony of Carlos Ui on this matter.
copy of the marriage certificate because the same was in the
possession of Carlos Ui, and that she annexed such copy because she Respondent posits that complainant's evidence, consisting of the
relied in good faith on what appeared on the copy of the marriage pictures of respondent with a child, pictures of respondent with Carlos
certificate in her possession. 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
Respondent filed her Memorandum 16 on February 22, 1995 and raised
and ground, and another picture of the same car bearing Plate No. PNS
the lone issue of whether or not she has conducted herself in an
313 and a picture of the house and the garage, 19 does not prove that
immoral manner for which she deserves to be barred from the practice
she acted in an immoral manner. They have no evidentiary value
of law. Respondent averred that the complaint should be dismissed on
according to her. The pictures were taken by a photographer from a
two (2) grounds, namely:
private security agency and who was not presented during the
(i) Respondent conducted herself in a manner consistent with the hearings. Further, the respondent presented the Resolution of the
requirement of good moral character for the practice of the legal Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing the
profession; and 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 Almost always, when a married man courts a single woman, he
Justice 21 to bolster her argument that she was not guilty of any represents himself to be single, separated, or without any firm
immoral or illegal act because of her relationship with Carlos Ui. In commitment to another woman. The reason therefor is not hard to
fine, respondent claims that she entered the relationship with Carlos Ui fathom. By their very nature, single women prefer single men.
in good faith and that her conduct cannot be considered as willful,
The records will show that when respondent became aware the (sic)
flagrant, or shameless, nor can it suggest moral indifference. She fell
true civil status of Carlos Ui, she left for the United States (in July of
in love with Carlos Ui whom she believed to be single, and, that upon
1988). She broke off all contacts with him. When she returned to the
her discovery of his true civil status, she parted ways with him.
Philippines in March of 1989, she lived with her brother, Atty.
In the Memorandum 22 filed on March 20, 1995 by complainant Leslie Teodoro Bonifacio, Jr. Carlos Ui and respondent only talked to each
Ui, she prayed for the disbarment of Atty. Iris Bonifacio and reiterated other because of the children whom he was allowed to visit. At no time
that respondent committed immorality by having intimate relations did they live together.
with a married man which resulted in the birth of two (2) children.
Under the foregoing circumstances, the Commission fails to find any
Complainant testified that respondent's mother, Mrs. Linda Bonifacio,
act on the part of respondent that can be considered as unprincipled or
personally knew complainant and her husband since the late 1970s
disgraceful as to be reprehensible to a high degree. To be sure, she was
because they were clients of the bank where Mrs. Bonifacio was the
more of a victim that (sic) anything else and should deserve
Branch Manager. 23 It was thus highly improbable that respondent,
compassion rather than condemnation. Without cavil, this sad episode
who was living with her parents as of 1986, would not have been
destroyed her chance of having a normal and happy family life, a
informed by her own mother that Carlos Ui was a married man.
dream cherished by every single girl.
Complainant likewise averred that respondent committed disrespect
towards the Commission for submitting a photocopy of a document xxx xxx xxx
containing an intercalated date.
Thereafter, the Board of Governors of the Integrated Bar of the
In her Reply to Complainant's Memorandum 24, respondent stated that Philippines issued a Notice of Resolution dated December 13, 1997,
complainant miserably failed to show sufficient proof to warrant her the dispositive portion of which reads as follows:
disbarment. Respondent insists that contrary to the allegations of
complainant, there is no showing that respondent had knowledge of RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
the fact of marriage of Carlos Ui to complainant. The allegation that and APPROVED, the Report and Recommendation of the
her mother knew Carlos Ui to be a married man does not prove that Investigating Commissioner in the above-entitled case, herein made
such information was made known to respondent. part of this Resolution/Decision as Annex "A", and, finding the
recommendation fully supported by the evidence on record and the
Hearing on the case ensued, after which the Commission on Bar applicable laws and rules, the complaint for Gross Immorality against
Discipline submitted its Report and Recommendation, finding that: Respondent is DISMISSED for lack of merit. Atty. Iris Bonifacio is
REPRIMANDED for knowingly and willfully attaching to her Answer
In the case at bar, it is alleged that at the time respondent was courted
a falsified Certificate of Marriage with a stern warning that a repetition
by Carlos Ui, the latter represented himself to be single. The
of the same will merit a more severe penalty.
Commission does not find said claim too difficult to believe in the
light of contemporary human experience. We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the delinquency and obliquity which render a lawyer unworthy of
right to enjoy the practice of the legal profession simply by passing the continuing as a member of the bar. The rule implies that what appears
bar examinations. It is a privilege that can be revoked, subject to the to be unconventional behavior to the straight-laced may not be the
mandate of due process, once a lawyer violates his oath and the immoral conduct that warrants disbarment.
dictates of legal ethics. The requisites for admission to the practice of
Immoral conduct has been defined as "that conduct which is willful,
law are:
flagrant, or shameless, and which shows a moral indifference to the
a. he must be a citizen of the Philippines; opinion of the good and respectable members of the community." (7
C.J.S. 959). 26
b. a resident thereof;
In the case at bar, it is the claim of respondent Atty. Bonifacio that
c. at least twenty-one (21) years of age;
when she met Carlos Ui, she knew and believed him to be single.
d. a person of good moral character; 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
e. he must show that no charges against him involving moral turpitude, knowledge of the true civil status of Carlos Ui, she left him.
are filed or pending in court;
Simple as the facts of the case may sound, the effects of the actuations
f. possess the required educational qualifications; and of respondent are not only far from simple, they will have a rippling
g. pass the bar examinations. 25 (Emphasis supplied) 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
Clear from the foregoing is that one of the conditions prior to what it used to be before. This permissiveness notwithstanding,
admission to the bar is that an applicant must possess good moral lawyers, as keepers of public faith, are burdened with a higher degree
character. More importantly, possession of good moral character must of social responsibility and thus must handle their personal affairs with
be continuous as a requirement to the enjoyment of the privilege of greater caution. The facts of this case lead us to believe that perhaps
law practice, otherwise, the loss thereof is a ground for the revocation respondent would not have found herself in such a compromising
of such privilege. It has been held - situation had she exercised prudence and been more vigilant in finding
If good moral character is a sine qua non for admission to the bar, then out more about Carlos Ui's personal background prior to her intimate
the continued possession of good moral character is also a requisite for involvement with him.
retaining membership in the legal profession. Membership in the bar Surely, circumstances existed which should have at least aroused
may be terminated when a lawyer ceases to have good moral character. respondent's suspicion that something was amiss in her relationship
(Royong vs. Oblena, 117 Phil. 865). with Carlos Ui, and moved her to ask probing questions. For instance,
A lawyer may be disbarred for "grossly immoral conduct, or by reason respondent admitted that she knew that Carlos Ui had children with a
of his conviction of a crime involving moral turpitude". A member of woman from Amoy, China, yet it appeared that she never exerted the
the bar should have moral integrity in addition to professional probity. slightest effort to find out if Carlos Ui and this woman were indeed
unmarried. Also, despite their marriage in 1987, Carlos Ui never lived
It is difficult to state with precision and to fix an inflexible standard as with respondent and their first child, a circumstance that is simply
to what is "grossly immoral conduct" or to specify the moral
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.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare
several documents that would guarantee recognition of him being the
THIRD DIVISION
actual owner of the property despite the transfer of title in the name of
[A.C. NO. 6057 : June 27, 2006] Mr. Donton.
PETER T. DONTON, Complainant, v. ATTY. EMMANUEL O. D. For this purpose, I prepared, among others, the OCCUPANCY
TANSINGCO, Respondent. AGREEMENT, recognizing Mr. Stier's free and undisturbed use of the
property for his residence and business operations. The OCCUPANCY
DECISION AGREEMENT was tied up with a loan which Mr. Stier had extended
CARPIO, J.: to Mr. Donton.6
The Case Complainant averred that respondent's act of preparing the Occupancy
Agreement, despite knowledge that Stier, being a foreign national, is
This is a disbarment complaint against respondent Atty. Emmanuel O. disqualified to own real property in his name, constitutes serious
Tansingco ("respondent") for serious misconduct and deliberate misconduct and is a deliberate violation of the Code. Complainant
violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of prayed that respondent be disbarred for advising Stier to do something
Professional Responsibility ("Code"). in violation of law and assisting Stier in carrying out a dishonest
The Facts scheme.
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") In his Comment dated 19 August 2003, respondent claimed that
stated that he filed a criminal complaint for estafa thru falsification of complainant filed the disbarment case against him upon the instigation
a public document4 against Duane O. Stier ("Stier"), Emelyn A. of complainant's counsel, Atty. Bonifacio A. Alentajan,7 because
Maggay ("Maggay") and respondent, as the notary public who respondent refused to act as complainant's witness in the criminal case
notarized the Occupancy Agreement. against Stier and Maggay. Respondent admitted that he "prepared and
notarized" the Occupancy Agreement and asserted its genuineness and
The disbarment complaint arose when respondent filed a counter- due execution.
charge for perjury5 against complainant. Respondent, in his affidavit-
complaint, stated that: In a Resolution dated 1 October 2003, the Court referred the matter to
the Integrated Bar of the Philippines (IBP) for investigation, report and
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was recommendation.
prepared and notarized by me under the following circumstances:
The IBP's Report and Recommendation
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, In her Report dated 26 February 2004 ("Report"), Commissioner
Cubao, Quezon City. Milagros V. San Juan ("Commissioner San Juan") of the IBP
Commission on Bar Discipline found respondent liable for taking part
B. Sometime in September 1995, Mr. Stier - a U.S. citizen and in a "scheme to circumvent the constitutional prohibition against
thereby disqualified to own real property in his name - agreed that foreign ownership of land in the Philippines." Commissioner San Juan
the property be transferred in the name of Mr. Donton, a Filipino.
recommended respondent's suspension from the practice of law for that would guarantee Stier's recognition as the actual owner of the
two years and the cancellation of his commission as Notary Public. property despite its transfer in complainant's name. In effect,
respondent advised and aided Stier in circumventing the constitutional
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board
prohibition against foreign ownership of lands14 by preparing said
of Governors adopted, with modification, the Report and
documents.
recommended respondent's suspension from the practice of law for six
months. Respondent had sworn to uphold the Constitution. Thus, he violated
his oath and the Code when he prepared and notarized the Occupancy
On 28 June 2004, the IBP Board of Governors forwarded the Report to
Agreement to evade the law against foreign ownership of lands.
the Court as provided under Section 12(b), Rule 139-B8 of the Rules of
Respondent used his knowledge of the law to achieve an unlawful end.
Court.
Such an act amounts to malpractice in his office, for which he may be
On 28 July 2004, respondent filed a motion for reconsideration before suspended.15
the IBP. Respondent stated that he was already 76 years old and would
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended
already retire by 2005 after the termination of his pending cases. He
from the practice of law for three years for preparing an affidavit that
also said that his practice of law is his only means of support for his
virtually permitted him to commit concubinage. In In re:
family and his six minor children.
Santiago,17 respondent Atty. Santiago was suspended from the
In a Resolution dated 7 October 2004, the IBP denied the motion for practice of law for one year for preparing a contract which declared the
reconsideration because the IBP had no more jurisdiction on the case spouses to be single again after nine years of separation and allowed
as the matter had already been referred to the Court. them to contract separately subsequent marriages.
The Ruling of the Court WHEREFORE, we find respondent Atty. Emmanuel O.
Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the
The Court finds respondent liable for violation of Canon 1 and Rule Code of Professional Responsibility. Accordingly,
1.02 of the Code. we SUSPEND respondent Atty. Emmanuel O. Tansingco from the
A lawyer should not render any service or give advice to any client practice of law for SIX MONTHS effective upon finality of this
which will involve defiance of the laws which he is bound to uphold Decision.
and obey.9 A lawyer who assists a client in a dishonest scheme or who Let copies of this Decision be furnished the Office of the Bar
connives in violating the law commits an act which justifies Confidant to be appended to respondent's personal record as an
disciplinary action against the lawyer.10 attorney, the Integrated Bar of the Philippines, the Department of
By his own admission, respondent admitted that Stier, a U.S. citizen, Justice, and all courts in the country for their information and
was disqualified from owning real property.11 Yet, in his motion for guidance.
reconsideration,12 respondent admitted that he caused the transfer of SO ORDERED.
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,
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 A hearing was conducted by the Commission on Bar Discipline of the
read as follows: Integrated Bar of the Philippines (IBP) at the IBP Building, Ortigas
Center, Pasig City, on 26 July 2005.
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 On 30 September 2005, Investigating Commissioner Dennis A. B.
4give me. "Im realy sri. Puede bati na tyo." (I don’t know what to do Funa submitted his Report and Recommendation,4 recommending the
so you may forgive me. I’m really sorry. Puede bati na tayo). imposition of the penalty of one (1) month suspension on respondent
for violation of the Code of Professional Responsibility.
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 Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20
really sri. Pls. Nxt ime bhave n me." (Ano ka ba. I’m really sorry. March 2006, approving and adopting, with modification, the
Please next time behave na ko), which is a clear manifestation of recommendation of the Investigating Commissioner, thus:
admission of guilt.2
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
3
In his answer, respondent admitted that he agreed to provide legal and APPROVED, with modification, the Report and Recommendation
services to the complainant; that he met with complainant on 10 of the Investigating Commissioner of the above-entitled case, herein
February 2005 and 6 March 2005, to discuss the relevant matters made part of this Resolution as Annex "A"; and, finding the
relative to the case which complainant was intending to file against the recommendation fully supported by the evidence on record and the
owners of Queensway Travel and Tours for collection of a sum of applicable laws and rules, and considering the behavior of Respondent
money; that on both occasions, complainant rode with him in his car went beyond the norms of conduct required of a lawyer when dealing
where he held and kissed complainant on the lips as the former offered with or relating with a client, Atty. Ernesto A. Macabata is
her lips to him; and, that the corner of Cooper Street and Roosevelt SUSPENDED from the practice of law for three (3) months.5
Avenue, where he dropped off the complainant, was a busy street
The issue to be resolved in this case is: whether respondent committed
teeming with people, thus, it would have been impossible to commit
acts that are grossly immoral or which constitute serious moral
the acts imputed to him.
depravity that would warrant his disbarment or suspension from the
By way of defense, respondent further elucidated that: 1) there was a practice of law.
criminal case for Acts of Lasciviousness filed by complainant against
Simple as the facts of the case may be, the manner by which we deal
respondent pending before the Office of the City Prosecutor in Quezon
with respondent’s actuations shall have a rippling effect on how the
City; 2) the legal name of complainant is Cynthia Advincula Toriana
standard norms of our legal practitioners should be defined. Perhaps
since she remains married to a certain Jinky Toriana because the civil
morality in our liberal society today is a far cry from what it used to
case for the nullification of their marriage was archived pursuant to the
be. This permissiveness notwithstanding, lawyers, as keepers of public
Order dated 6 December 2000 issued by the Regional Trial Court of
faith, are burdened with a high degree of social responsibility and,
Maburao, Occidental Mindoro; 3) the complainant was living with a
hence, must handle their personal affairs with greater caution.
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 The Code of Professional Responsibility provides:
every time they met and ate at a restaurant.
CANON I – x x x
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral Bar, free from misdeeds and acts constitutive of malpractice. Their
or deceitful conduct. exalted positions as officers of the court demand no less than the
highest degree of morality.8 We explained in Barrientos v.
CANON 7-- A lawyer shall at all times uphold the integrity and
Daarol9 that, "as officers of the court, lawyers must not only in fact be
dignity of the legal profession and support the activities of the
of good moral character but must also be seen to be of good moral
Integrated Bar.
character and leading lives in accordance with the highest moral
xxxx standards of the community."
Rule 7.03-- A lawyer shall not engage in conduct that adversely Lawyers are expected to abide by the tenets of morality, not only upon
reflects on his fitness to practice law, nor shall he, whether in public or admission to the Bar but also throughout their legal career, in order to
private life, behave in a scandalous manner to the discredit of the legal maintain their good standing in this exclusive and honored fraternity.
profession. 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
As may be gleaned from above, the Code of Professional shows him to be wanting in moral character, honesty, probity or good
Responsibility forbids lawyers from engaging in unlawful, dishonest, demeanor.10
immoral or deceitful conduct.
In Bar Matter No. 1154,11 good moral character was defined as what a
Lawyers have been repeatedly reminded that their possession of good person really is, as distinguished from good reputation, or from the
moral character is a continuing condition to preserve their membership opinion generally entertained of him, or the estimate in which he is
in the Bar in good standing. The continued possession of good moral held by the public in the place where he is known. Moral character is
character is a requisite condition for remaining in the practice of not a subjective term but one which corresponds to objective reality.
law.6 In Aldovino v. Pujalte, Jr.,7 we emphasized that:
It should be noted that the requirement of good moral character has
This Court has been exacting in its demand for integrity and good four ostensible purposes, namely: (1) to protect the public; (2) to
moral character of members of the Bar. They are expected at all times protect the public image of lawyers; (3) to protect prospective clients;
to uphold the integrity and dignity of the legal profession and refrain and (4) to protect errant lawyers from themselves.12
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 In the case at bar, respondent admitted kissing complainant on the lips.
profession. Membership in the legal profession is a privilege. And
In his Answer,13 respondent confessed, thus:
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 27. When she was about to get off the car, I said can I kiss you
also the duty of this Court, which made him one of its officers and goodnight. She offered her left cheek and I kissed it and with my left
gave him the privilege of ministering within its Bar, to withdraw the hand slightly pulled her right face towards me and kissed her gently on
privilege. the lips. We said goodnight and she got off the car.
It is the bounden duty of lawyers to adhere unwaveringly to the highest xxxx
standards of morality. The legal profession exacts from its members
35. When I stopped my car I said okay. I saw her offered (sic) her left
nothing less. Lawyers are called upon to safeguard the integrity of the
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 ATTY. MACABATA:
was no force used. No intimidation made, no lewd designs displayed.
Okay. After that were through so I said let’s go because I have an
No breast holding was done. Everything happened very spontaneously
appointment. So we went out, we went inside my car and I said where
with no reaction from her except saying "sexual harassment."
to? Same place, she said, so then at the same corner. So before she
During the hearing held on 26 July 2005 at the 3rd floor, IBP Building, went down , before she opened the door of the car, I saw her offered
Dona Julia Vargas Avenue, Ortigas City, respondent candidly recalled her left cheek. So I kissed her again.
the following events:
COMM. FUNA:
ATTY. MACABATA:
Pardon?
That time in February, we met … I fetched her I should say,
ATTY. MACABATA:
somewhere along the corner of Edsa and Kamuning because it was
then raining so we are texting each other. So I parked my car I saw her offered her left cheek like that, so I kissed her again and then
somewhere along the corner of Edsa and Kamuning and I was there with the use of my left hand, pushed a little bit her face and then kissed
about ten to fifteen minutes then she arrived. And so I said … she her again softly on the lips and that’s it. x x x.14 (Emphases supplied.)
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 It is difficult to state with precision and to fix an inflexible standard as
to Zensho which is along Tomas Morato. When we were there, we to what is "grossly immoral conduct" or to specify the moral
discussed about her case, we ordered food and then a little while I told delinquency and obliquity which render a lawyer unworthy of
her, would it be okay for you of I (sic) order wine? She said yes so I continuing as a member of the bar. The rule implies that what appears
ordered two glasses of red wine. After that, after discussing matters to be unconventional behavior to the straight-laced may not be the
about her case, so I said … it’s about 9:00 or beyond that time already, immoral conduct that warrants disbarment.15
so I said okay, let’s go. So when I said let’s go so I stood up and then I In Zaguirre v. Castillo,16 we reiterated the definition of immoral
went to the car. I went ahead of my car and she followed me then she conduct, as such conduct which is so willful, flagrant, or shameless as
rode on (sic) it. So I told her where to? She told me just drop me at the to show indifference to the opinion of good and respectable members
same place where you have been dropping me for the last meetings of the community. Furthermore, for such conduct to warrant
that we had and that was at the corner of Morato and Roosevelt disciplinary action, the same must not simply be immoral, but grossly
Avenue. So, before she went down, I told her can I kiss you immoral. It must be so corrupt as to constitute a criminal act, or so
goodnight? She offered her left cheek and I kissed it and with the unprincipled as to be reprehensible to a high degree or committed
slight use of my right hand, I ... should I say tilted her face towards me under such scandalous or revolting circumstances as to shock the
and when she’s already facing me I lightly kissed her on the lips. And common sense of decency.
then I said good night. She went down the car, that’s it.
The following cases were considered by this Court as constitutive of
COMM. FUNA: grossly immoral conduct:
February 10 iyan.
xxxx
In Toledo v. Toledo,17 a lawyer was disbarred from the practice of law, In Tucay v. Tucay,23 respondent contracted marriage with another
when he abandoned his lawful wife and cohabited with another woman married woman and left complainant with whom he has been married
who had borne him a child. for thirty years. We ruled that such acts constitute "a grossly immoral
conduct and only indicative of an extremely low regard for the
In Obusan v. Obusan, Jr.,18 a lawyer was disbarred after complainant
fundamental ethics of his profession," warranting respondent’s
proved that he had abandoned her and maintained an adulterous
disbarment.
relationship with a married woman. This court declared that
respondent failed to maintain the highest degree of morality expected In Villasanta v. Peralta,24 respondent married complainant while his
and required of a member of the bar. first wife was still alive, their marriage still valid and subsisting. We
held that "the act of respondent of contracting the second marriage is
In Dantes v. Dantes,19 respondent’s act of engaging in illicit
contrary to honesty, justice, decency and morality." Thus, lacking the
relationships with two different women during the subsistence of his
good moral character required by the Rules of Court, respondent was
marriage to the complainant constitutes grossly immoral conduct
disqualified from being admitted to the bar.
warranting the imposition of appropriate sanctions. Complainant’s
testimony, taken in conjunction with the documentary evidence, In Cabrera v. Agustin,25 respondent lured an innocent woman into a
sufficiently established that respondent breached the high and exacting simulated marriage and thereafter satisfied his lust. We held that
moral standards set for members of the law profession. respondent failed to maintain that degree of morality and integrity
which, at all times, is expected of members of the bar. He is, therefore,
In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral of
disbarred from the practice of law.
respondent, a married man with children, to have taken advantage of
his position as chairman of the college of medicine in asking Immorality has not been confined to sexual matters, but includes
complainant, a student in said college, to go with him to Manila where conduct inconsistent with rectitude, or indicative of corruption,
he had carnal knowledge of her under the threat that she would flank indecency, depravity and dissoluteness; or is willful, flagrant, or
in all her subjects in case she refused. shameless conduct showing moral indifference to opinions of
respectable members of the community, and an inconsiderate attitude
In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred when
toward good order and public welfare.26
he abandoned his lawful wife and three children, lured an innocent
woman into marrying him and misrepresented himself as a "bachelor" Guided by the definitions above, we perceived acts of kissing or beso-
so he could contract marriage in a foreign land. beso on the cheeks as mere gestures of friendship and
camaraderie,27 forms of greetings, casual and customary. The acts of
In Macarrubo v. Macarrubo,22 respondent entered into multiple
respondent, though, in turning the head of complainant towards him
marriages and then resorted to legal remedies to sever them. There, we
and kissing her on the lips are distasteful. However, such act, even if
ruled that "[s]uch pattern of misconduct by respondent undermines the
considered offensive and undesirable, cannot be considered grossly
institutions of marriage and family, institutions that this society looks
immoral.
to for the rearing of our children, for the development of values
essential to the survival and well-being of our communities, and for Complainant’s bare allegation that respondent made use and took
the strengthening of our nation as a whole." As such, "there can be no advantage of his position as a lawyer to lure her to agree to have
other fate that awaits respondent than to be disbarred." sexual relations with him, deserves no credit. The burden of proof rests
on the complainant, and she must establish the case against the who carry out this important function to be competent, honorable and
respondent by clear, convincing and satisfactory proof,28 disclosing a reliable men in whom courts and clients may repose
case that is free from doubt as to compel the exercise by the Court of confidence.35 While it is discretionary upon the Court to impose a
its disciplinary power.29 Thus, the adage that "he who asserts not he particular sanction that it may deem proper against an erring lawyer, it
who denies, must prove."30 As a basic rule in evidence, the burden of should neither be arbitrary and despotic nor motivated by personal
proof lies on the party who makes the allegations—ei incumbit animosity or prejudice, but should ever be controlled by the imperative
probation, qui decit, non qui negat; cum per rerum naturam factum need to scrupulously guard the purity and independence of the bar and
negantis probation nulla sit.31 In the case at bar, complainant miserably to exact from the lawyer strict compliance with his duties to the court,
failed to comply with the burden of proof required of her. A mere to his client, to his brethren in the profession and to the public.
charge or allegation of wrongdoing does not suffice. Accusation is not
The power to disbar or suspend ought always to be exercised on the
synonymous with guilt.32
preservative and not on the vindictive principle, with great caution and
Moreover, while respondent admitted having kissed complainant on only for the most weighty reasons and only on clear cases of
the lips, the same was not motivated by malice. We come to this misconduct which seriously affect the standing and character of the
conclusion because right after the complainant expressed her lawyer as an officer of the court and member of the Bar. Only those
annoyance at being kissed by the respondent through a cellular phone acts which cause loss of moral character should merit disbarment or
text message, respondent immediately extended an apology to suspension, while those acts which neither affect nor erode the moral
complainant also via cellular phone text message. The exchange of character of the lawyer should only justify a lesser sanction unless they
text messages between complainant and respondent bears this out. 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
Be it noted also that the incident happened in a place where there were
the act charged as well as the motivation which induced the lawyer to
several people in the vicinity considering that Roosevelt Avenue is a
commit it must be clearly demonstrated before suspension or
major jeepney route for 24 hours. If respondent truly had malicious
disbarment is meted out. The mitigating or aggravating circumstances
designs on complainant, he could have brought her to a private place
that attended the commission of the offense should also be
or a more remote place where he could freely accomplish the same.
considered.36
All told, as shown by the above circumstances, respondent’s acts are
Censure or reprimand is usually meted out for an isolated act of
not grossly immoral nor highly reprehensible to warrant disbarment or
misconduct of a lesser nature. It is also imposed for some minor
suspension.
infraction of the lawyer’s duty to the court or the client.37 In the Matter
The question as to what disciplinary sanction should be imposed of Darell Adams,38 a lawyer was publicly reprimanded for grabbing a
against a lawyer found guilty of misconduct requires consideration of a female client, kissing her, and raising her blouse which constituted
number of factors.33 When deciding upon the appropriate sanction, the illegal conduct involving moral turpitude and conduct which adversely
Court must consider that the primary purposes of disciplinary reflected on his fitness to practice law.
proceedings are to protect the public; to foster public confidence in the
Based on the circumstances of the case as discussed and considering
Bar; to preserve the integrity of the profession; and to deter other
that this is respondent’s first offense, reprimand would suffice.
lawyers from similar misconduct.34 Disciplinary proceedings are
means of protecting the administration of justice by requiring those
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.
"A. contrary to the terms of the Distributorship Agreement and in In a telex message, dated 02 March 1980, PAWI president Romeo
violation of U.S. law, the country of origin (the Philippines) was not Rojas expressed the company’s inability to comply with the foregoing
stamped on the wheels; agreement and proposed a revised schedule of payment. The message,
in part read:jgc:chanrobles.com.ph
"B. the wheels did not have weight load limits stamped on them as
required to avoid mounting on excessively heavy vehicles, resulting in "We are most anxious in fulfilling all our obligations under
risk of damage or bodily injury to consumers arising from possible compromise agreement executed by our Mr. Giancarlo Dallera and
shattering of the wheels; your Van Curen. We have tried our best to comply with our
commitments, however, because of the situation as mentioned in the
"C many of the wheels did not have an indication as to which models foregoing and currency regulations and restrictions imposed by our
of automobile they would fit; government on the outflow of foreign currency from our country, we
are constrained to request for a revised schedule of shipment and
"D. many of the wheels did not fit the model automobiles for which opening of LCS.
they were purportedly designed;
"After consulting with our bank and government monetary agencies
"E. some of the wheels did not fit any model automobile in use in the 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 restrictions," prompting FASGI to pursue its complaint for damages
schedule:jgc:chanrobles.com.ph against PAWI before the California district court. Pre-trial conference
was held on 24 November 1980. In the interim, the parties, realizing
"A) First L/C — it will be issued in April 1980 payable 90 days the protracted process of litigation, resolved to enter into another
thereafter arrangement, this time entitled "Supplemental Settlement Agreement,"
on 26 November 1980. In substance, the covenant provided that
"B) Second L/C — it will be issued in June 1980 payable 90 days FASGI would deliver to PAWI a container of wheels for every LC
thereafter opened and paid by PAWI:jgc:chanrobles.com.ph
"C) Third L/C — it will be issued in August 1980 payable 90 days "3. Agreement
thereafter
"3.1 Sellers agree to pay FASGI Two Hundred Sixty-Eight Thousand,
"D) Fourth L/C — it will be issued in November 1980 payable 90 days Seven Hundred Fifty and 00/100 Dollars ($268,750.00), plus interest
thereafter and storage costs as described below. Sellers shall pay such amount by
delivering to FASGI the following four (4) irrevocable letters of credit,
"We understand your situation regarding the lease of your warehouse. confirmed by Crocker Bank, Main Branch, Fresno, California, as set
For this reason, we are willing to defray the extra storage charges forth below:jgc:chanrobles.com.ph
resulting from this new schedule. If you cannot renew the lease [of]
your present warehouse, perhaps you can arrange to transfer to another "(i) on or before June 30, 1980, a documentary letter of credit in the
warehouse and storage charges transfer thereon will be for our amount of (a) Sixty-Five Thousand, Three Hundred Sixty-nine and
account. We hope you understand our position. The delay and the 00/100 Dollars ($65,369.00), (b) plus interest on that amount at the
revised schedules were caused by circumstances totally beyond our annual rate of 16.25% from January 1, 1980 until July 31, 1980, (c)
control." 3 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
On 21 April 1980, again through a telex message, PAWI informed 16.25% from May 1, 1980 to July 31, 1980, payable on or after August
FASGI that it was impossible to open a letter of credit on or before 31, 1980;
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, "(ii) on or before September 1, 1980, a documentary letter of credit in
FASGI insisted that PAWI should meet the terms of the proposed the amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety-
schedule of payments, specifically its undertaking to open the first LC Three Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Two
within April of 1980, and that "If the letter of credit is not opened by Thousand, Nine Hundred Forty and 00/100 Dollars ($2,940.00), plus
April 30, 1980, then . . . [it would] immediately take all necessary (c) interest at an annual rate equal to the prime rate of Crocker Bank,
legal action to protect [its] position." 5 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
Despite its assurances, and FASGI’s insistence, PAWI failed to open the amount set forth in (b) from May 1, 1980 until December 21, 1980,
the first LC in April 1980 allegedly due to Central Bank "inquiries and payable ninety days after the date of the bill of lading under the letter
of credit; "x x x
"(iii) on or before November 1, 1980, a documentary letter of credit in "(e) From and after February 28, 1981, unless delivery of the Letters
the amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety- of Credit are delayed past such date pursuant to the penultimate
Three Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Two Paragraph 3.1, in which case from and after such later date, FASGI
Thousand, Nine Hundred Forty and 00/100 Dollars ($2,490.00), plus shall have no obligation to maintain, store or deliver any of the
(c) interest at an annual rate equal to the prime rate of Crocker Bank, Containers or Wheels." 7
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 deal allowed FASGI to enter before the California court the
the amount set forth in (b) from May 1, 1980 until February 21, 1981, foregoing stipulations in the event of the failure of PAWI to make
payable ninety days after the date of the bill of lading under the letter good the scheduled payments; thus —
of credit;
"3.5 Concurrently with execution and delivery hereof, the parties have
"(iv) on or before January 1, 1981, a documentary letter of credit in the executed and delivered a Mutual Release (the ‘Mutual Release’), and a
amount of (a) Sixty-Seven Thousand, Seven Hundred Ninety-Three Stipulation for Judgment (the ‘Stipulation for Judgment’) with respect
Dollars and Sixty-Seven Cents ($67,793.67) plus (b) Five Thousand, to the Action. In the event of breach of this Supplemental Settlement
Eight Hundred Eighty and 00/100 Dollars ($5,880.00), plus (c) interest Agreement by Sellers, FASGI shall have the right to apply
at an annual rate equal to the prime rate of Crocker Bank, San immediately to the Court for entry of Judgment pursuant to the
Francisco, in effect from time to time, plus two percent on the amount Stipulation for Judgment in the full amount thereof, less credit for any
in (a) from January 1, 1980 until April 21, 1981, and on the amount set payments made by Sellers pursuant to this Supplemental Settlement
forth in (b) from May 1, 1980 until April 21, 1981, payable ninety Agreement. FASGI shall have the right thereafter to enforce the
days after the date of the bill of lading under the letter of credit." 6 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
Anent the wheels still in the custody of FASGI, the supplemental PAWI hereby waive all defenses in any such country to execution or
settlement agreement provided that —chanrob1es virtua1 1aw 1ibrary enforcement of the Judgment by FASGI. Specifically, FPS and PAWI
each consent to the jurisdiction of the Italian and Philippine courts in
"3.4 (a) Upon execution of this Supplemental Settlement Agreement, any action brought by FASGI to seek a judgment in those countries
the obligations of FASGI to store or maintain the Containers and based upon a Judgment against FPS or PAWI in the Action." 8
Wheels shall be limited to (i) storing the Wheels and Containers in
their present warehouse location and (ii) maintaining in effect In accordance with the aforementioned paragraph 3.5 of the
FASGI’s current insurance in favor of FASGI, insuring against usual agreement, the parties made the following stipulation before the
commercial risks for such storage in the principal amount of the California court:jgc:chanrobles.com.ph
Letters of Credit described in Paragraph 3.1. FASGI shall bear no
liability, responsibility or risk for uninsurable risks or casualties to the "The undersigned parties hereto, having entered into a Supplemental
Containers or Wheels. Settlement Agreement in this action,
"IT IS HEREBY STIPULATED by and between plaintiff FASGI subsequently entered into the supplemental settlement agreement, its
Enterprises, Inc. (’FASGI’) and defendants Philippine Aluminum request to open LCs had already been approved by the Central Bank.
Wheels, Inc., (’PAWI’), and each of them, that judgment may be Irked by PAWI’s persistent default, FASGI filed with the US District
entered in favor of plaintiff FASGI and against PAWI, in the amount Court of the Central District of California the following stipulation for
of Two Hundred Eighty Three Thousand Four Hundred Eighty And judgment against PAWI.
01/100ths Dollars ($283,480.01).
"PLEASE TAKE NOTICE that on May 17, 1982 at 10:00 A.M. in the
"Plaintiff FASGI shall also be entitled to its costs of suit, and to Courtroom of the Honorable Laughlin E. Waters of the above court,
reasonable attorneys’ fees as determined by the Court added to the plaintiff FASGI ENTERPRISES, INC. (hereinafter ‘FASGI’) will
above judgment amount." 9 move the Court for entry of Judgment against defendant PHILIPPINE
ALUMINUM WHEELS, INC. (hereinafter ‘PAWI’), pursuant to the
The foregoing supplemental settlement agreement, as well as the Stipulation for Judgment filed concurrently herewith, executed on
motion for the entry of judgment, was executed by FASGI president behalf of FASGI and PAWI by their respective attorneys, acting as
Elena Buholzer and PAWI counsel Mr. Thomas Ready. their authorized agents.
PAWI, again, proved to be remiss in its obligation under the "Judgment will be sought in the total amount of P252,850.60,
supplemental settlement agreement. While it opened the first LC on 19 including principal and interest accrued through May 17, 1982, plus
June 1980, it, however, only paid on it nine (9) months after, or on 20 the sum of $17,500.00 as reasonable attorneys’ fees for plaintiff in
March 1981, when the letters of credit by then were supposed to have prosecuting this action.
all been already posted. This lapse, notwithstanding, FASGI promptly
shipped to PAWI the first container of wheels. Again, despite the "The Motion will be made under Rule 54 of the Federal Rules of Civil
delay incurred by PAWI on the second LC, FASGI readily delivered Procedure, pursuant to and based upon the Stipulation for Judgment,
the second container. Later, PAWI totally defaulted in opening and the Supplemental Settlement Agreement filed herein on or about
paying the third and the fourth LCs, scheduled to be opened on or November 21, 1980, the Memorandum of Points and Authorities and
before, respectively, 01 September 1980 and 01 November 1980, and Affidavits of Elena Buholzer, Franck G. Ker and Stan Cornwell all
each to be paid ninety (90) days after the date of the bill of lading filed herewith, and upon all the records, files and pleadings in this
under the LC. As so expressed in their affidavits, FASGI counsel action.
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 "The Motion is made on the grounds that defendant PAWI has
Central Bank or any other cause than its inability to pay. These doubts breached its obligations as set forth in the Supplemental Settlement
were based on the telex message of PAWI president Romeo Rojas who Agreement, and that the Supplemental Settlement Agreement
attached a copy of a communication from the Central Bank notifying expressly permits FASGI to enter the Stipulation for Judgment in the
PAWI of the bank’s approval of PAWI’s request to open LCs to cover event that PAWI has not performed under the Supplemental
payment for the re-importation of the wheels. The communication Settlement Agreement." 10
having been sent to FASGI before the supplemental settlement
agreement was executed, FASGI speculated that at the time PAWI 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 which final judgments of foreign courts of competent jurisdiction
by the US District Judge of the District Court for the Central District are reciprocally respected and rendered efficacious under certain
of California. PAWI, by this time, was approximately twenty (20) conditions that may vary in different countries. 15
months in arrears in its obligation under the supplemental settlement
agreement. In this jurisdiction, a valid judgment rendered by a foreign tribunal
may be recognized insofar as the immediate parties and the underlying
Unable to obtain satisfaction of the final judgment within the United cause of action are concerned so long as it is convincingly shown that
States, FASGI filed a complaint for "enforcement of foreign there has been an opportunity for a full and fair hearing before a court
judgment" in February 1983, before the Regional Trial Court, Branch of competent jurisdiction; that trial upon regular proceedings has been
61, of Makati, Philippines. The Makati court, however, in an order of conducted, following due citation or voluntary appearance of the
11 September 1990, dismissed the case, thereby denying the defendant and under a system of jurisprudence likely to secure an
enforcement of the foreign judgment within Philippine jurisdiction, on impartial administration of justice; and that there is nothing to indicate
the ground that the decree was tainted with collusion, fraud, and clear either a prejudice in court and in the system of laws under which it is
mistake of law and fact. 11 The lower court ruled that the foreign sitting or fraud in procuring the judgment. 16 A foreign judgment is
judgment ignored the reciprocal obligations of the parties. While the presumed to be valid and binding in the country from which it comes,
assailed foreign judgment ordered the return by PAWI of the purchase until a contrary showing, on the basis of a presumption of regularity of
amount, no similar order was made requiring FASGI to return to proceedings and the giving of due notice in the foreign forum. Rule 39,
PAWI the third and fourth containers of wheels. 12 This situation, the section 48 of the Rules of Court of the Philippines
trial court maintained, amounted to an unjust enrichment on the part of provides:chanrob1es virtual 1aw library
FASGI. Furthermore, the trial court said, the supplemental settlement
agreement and the subsequent motion for entry of judgment upon Sec. 48. Effect of foreign judgments or final orders — The effect of a
which the California court had based its judgment were a nullity for judgment or final order of a tribunal of a foreign country, having
having been entered into by Mr. Thomas Ready, counsel for PAWI, jurisdiction to render the judgment or final order is as
without the latter’s authorization. follows:chanrob1es virtual 1aw library
x x x
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. (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
Hence this appeal. and their successors-in-interest by a subsequent title.
Generally, in the absence of a special compact, no sovereign is bound In either case, the judgment or final order may be repelled by evidence
to give effect within its dominion to a judgment rendered by a tribunal of a want of jurisdiction, want of notice to the party, collusion, fraud,
of another country; 14 however, the rules of comity, utility and or clear mistake of law or fact.
convenience of nations have established a usage among civilized states
In Soorajmull Nagarmull v. Binalbagan-Isabela Sugar Co. Inc., 17 one about it. 20
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 Nor could PAWI claim any prejudice by the settlement. PAWI was
foreign court is presumptive evidence of a right between the parties spared from possibly paying FASGI substantial amounts of damages
and their successors in-interest by subsequent title, but when suit for and incurring heavy litigation expenses normally generated in a full-
its enforcement is brought in a Philippine court, such judgment may be blown trial. PAWI, under the agreement was afforded time to
repelled by evidence of want of jurisdiction, want of notice to the reimburse FASGI the price it had paid for the defective wheels. PAWI,
party, collusion, fraud or clear mistake of law or fact. In Northwest should not, after its opportunity to enjoy the benefits of the agreement,
Orient Airlines, Inc., v. Court of Appeals, 18 the Court has said that a be allowed to later disown the arrangement when the terms thereof
party attacking a foreign judgment is tasked with the burden of ultimately would prove to operate against its hopeful expectations.
overcoming its presumptive validity.chanrob1es virtua1 1aw 1ibrary
PAWI assailed not only Mr. Ready’s authority to sign on its behalf the
PAWI claims that its counsel, Mr. Ready, has acted without its Supplemental Settlement Agreement but denounced likewise his
authority. Verily, in this jurisdiction, it is clear that an attorney cannot, authority to enter into a stipulation for judgment before the California
without a client’s authorization, settle the action or subject matter of court on 06 August 1982 on the ground that it had by then already
the litigation even when he honestly believes that such a settlement terminated the former’s services. For his part, Mr. Ready admitted that
will best serve his client’s interest. 19 while he did receive a request from Manuel Singson of PAWI to
withdraw from the motion of judgment, the request unfortunately came
In the instant case, the supplemental settlement agreement was signed too late. In an explanatory telex, Mr. Ready told Mr. Singson that
by the parties, including Mr. Thomas Ready, on 06 October 1980. The under American Judicial Procedures when a motion for judgment had
agreement was lodged in the California case on 26 November 1980 or already been filed a counsel would not be permitted to withdraw
two (2) days after the pre-trial conference held on 24 November 1980. unilaterally without a court order. From the time the stipulation for
If Mr. Ready was indeed not authorized by PAWI to enter into the judgment was entered into on 26 April 1982 until the certificate of
supplemental settlement agreement, PAWI could have forthwith finality of judgment was issued by the California court on 07
signified to FASGI a disclaimer of the settlement. Instead, more than a September 1982, no notification was issued by PAWI to FASGI
year after the execution of the supplemental settlement agreement, regarding its termination of Mr. Ready’s services. If PAWI were
particularly on 09 October 1981, PAWI President Romeo S. Rojas sent indeed hoodwinked by Mr. Ready who purportedly acted in collusion
a communication to Elena Buholzer of FASGI that failed to mention with FASGI, it should have aptly raised the issue before the forum
Mr. Ready’s supposed lack of authority. On the contrary, the letter which issued the judgment in line with the principle of international
confirmed the terms of the agreement when Mr. Rojas sought comity that a court of another jurisdiction should refrain, as a matter of
forbearance for the impending delay in the opening of the first letter of propriety and fairness, from so assuming the power of passing
credit under the schedule stipulated in the agreement. judgment on the correctness of the application of law and the
evaluation of the facts of the judgment issued by another tribunal. 21
It is an accepted rule that when a client, upon becoming aware of the
compromise and the judgment thereon, fails to promptly repudiate the Fraud, to hinder the enforcement within this jurisdiction of a foreign
action of his attorney, he will not afterwards be heard to complain 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 the second and the third containers of defective wheels before it could
would go to the jurisdiction of the court or would deprive the party be required to return to FASGI the purchase price therefor, 25 relying
against whom judgment is rendered a chance to defend the action to on their original agreement (the "Transaction"). 26 Unfortunately,
which he has a meritorious case or defense. In fine, intrinsic fraud, that PAWI defaulted on its covenants thereunder that thereby occasioned
is, fraud which goes to the very existence of the cause of action – such the subsequent execution of the supplemental settlement agreement.
as fraud in obtaining the consent to a contract – is deemed already This time the parties agreed, under paragraph 3.4(e) 27 thereof, that
adjudged, and it, therefore, cannot militate against the recognition or any further default by PAWI would release FASGI from any
enforcement of the foreign judgment. 23 obligation to maintain, store or deliver the rejected wheels. The
supplemental settlement agreement evidently superseded, at the very
Even while the US judgment was against both FPS and PAWI, FASGI least on this point, the previous arrangements made by the parties.
had every right to seek enforcement of the judgment solely against
PAWI or, for that matter, only against FPS. FASGI, in its complaint, PAWI cannot, by this petition for review, seek refuge over a business
explained:jgc:chanrobles.com.ph dealing and decision gone awry. Neither do the courts function to
relieve a party from the effects of an unwise or unfavorable contract
"17. There exists, and at all times relevant herein there existed, a unity freely entered into. As has so aptly been explained by the appellate
of interest and ownership between defendant PAWI and defendant court, the over-all picture might, indeed, appear to be onerous to
FPS, in that they are owned and controlled by the same shareholders PAWI but it should bear emphasis that the settlement which has
and managers, such that any individuality and separateness between become the basis for the foreign judgment has not been the start of a
these defendants has ceased, if it ever existed, and defendant FPS is business venture but the end of a failed one, and each party, naturally,
the alter ego of defendant PAWI. The two entities are used has had to negotiate from either position of strength or weakness
interchangeably by their shareholders and managers, and plaintiff has depending on its own perception of who might have to bear the blame
found it impossible to ascertain with which entity it is dealing at any for the failure and the consequence of loss. 28chanrob1es virtua1 1aw
one time. Adherence to the fiction of separate existence of these 1ibrary
defendant corporations would permit an abuse of the corporate
privilege and would promote injustice against this plaintiff because Altogether, the Court finds no reversible error on the part of the
assets can easily be shifted between the two companies thereby appellate court in its appealed judgment.
frustrating plaintiff’s attempts to collect on any judgment rendered by
this Court." 24 WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
A.C. No. 7973 A.C. No. 10457 (CBC Case No. 08-2273)
On 30 July 2008, Garcia filed a complaint for disbarment A day prior to the filing of A.C. No. 7973, or on 29 July 2008, Garcia
against Sesbreño before the Office of the Bar Confidant. The case was filed a complaint for disbarment against Sesbreño before the IBP-
docketed as A.C. No. 7973. Garcia alleged that in 1965, he married CBD. He alleged that Sesbreño is practicing law despite his previous
Virginia Alcantara in Cebu. They had two children, Maria Margarita conviction for homicide in Criminal Case No. CBU-31733, and
and Angie Ruth. In 1971, he and Virginia separated. He became a despite the facts that he is only on parole and that he has not fully
dentist and practiced his profession in Cabanatuan City. Garcia alleged served his sentence. Garcia alleged that Sesbreño violated Section 27,
that in 1992, Virginia filed a petition for the annulment of their Rule 138 of the Rules of Court by continuing to engage in the practice
marriage, which was eventually granted. of law despite his conviction of a crime involving moral turpitude.
Upon the directive of the IBP-CBD, Garcia submitted his verified
Garcia alleged that in 2005 while he was in Japan, Sesbreño, complaint against Sesbreño alleging basically the same facts he
representing Maria Margarita and Angie Ruth, filed an action for alleged in A.C. No. 7973.
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 In his answer to the complaint, Sesbreño alleged that his sentence was
while Angie Ruth was 35 years old. The case was dismissed. In 2007, commuted and the phrase “with the inherent accessory penalties
Garcia returned from Japan. When Sesbreño and Garcia’s children provided by law” was deleted. Sesbreño argued that even if the
learned about his return, Sesbreño filed a Second Amended Complaint accessory penalty was not deleted, the disqualification applies only
against him. Garcia alleged that he learned that Sesbreño was during the term of the sentence. Sesbreño further alleged that homicide
convicted by the Regional Trial Court of Cebu City, Branch 18, for does not involve moral turpitude. Sesbreño claimed that Garcia’s
Homicide in Criminal Case No. CBU-31733. Garcia alleged that complaint was motivated by extreme malice, bad faith, and desire to
Sesbreño is only on parole. Garcia alleged that homicide is a crime retaliate against him for representing Garcia’s daughters in court.
be slighted by a couple of drunks who may have shattered the stillness
The IBP-CBD consolidated A.C. No. 7973 with CBD Case No. 08- of the early morning with their boisterous antics, natural display of
2273. The parties agreed on the sole issue to be resolved: whether loud bravado of drunken men who had one too many. Respondent’s
moral turpitude is involved in a conviction for homicide. inordinate overreaction to the ramblings of drunken men who were not
even directed at respondent reflected poorly on his fitness to be a
The IBP-CBD ruled that the Regional Trial Court of Cebu member of the legal profession. Respondent was not only vindictive
found Sesbreño guilty of murder and sentenced him to suffer the without a cause; he was cruel with a misplaced sense of superiority.2
penalty of reclusion perpetua. On appeal, this Court downgraded the
crime to homicide and sentenced Sesbreño to suffer the penalty of
Following the ruling of this Court in Soriano v. Atty. Dizon3 where the
imprisonment for 9 years and 1 day of prision mayor as minimum to
respondent was disbarred for having been convicted of frustrated
16 years and 4 months of reclusion temporal as maximum. The IBP-
homicide, the IBP-CBD recommended that Sesbreño be disbarred and
CBD found that Sesbreño was released from confinement on 27 July
his name stricken from the Roll of Attorneys.
2001 following his acceptance of the conditions of his parole on 10
July 2001.
In its Resolution No. XX-2013-19 dated 12 February 2013, the IBP
Board of Governors adopted and approved the Report and
The IBP-CBD ruled that conviction for a crime involving moral
Recommendation of the IBP-CBD.
turpitude is a ground for disbarment or suspension.
Citing International Rice Research Institute v. National Labor
On 6 May 2013, Sesbreño filed a motion for reconsideration before the
Relations Commission,1 the IBP-CBD further ruled that homicide may
IBP-CBD. Sesbreño alleged that the IBP-CBD misunderstood and
or may not involve moral turpitude depending on the degree of the
misapplied Soriano v. Atty. Dizon. He alleged that the attendant
crime. The IBP-CBD reviewed the decision of this Court convicting
circumstances in Soriano are disparate, distinct, and different from his
Sesbreño for the crime of homicide, and found that the circumstances
case. He further alleged that there was no condition set on the grant of
leading to the death of the victim involved moral turpitude. The IBP-
executive clemency to him; and thus, he was restored to his full civil
CBD stated:chanroblesvirtuallawlibrary
and political rights. Finally, Sesbreño alleged that after his wife died in
Neither victim Luciano Amparado nor his companion Christopher an ambush, he already stopped appearing as private prosecutor in the
Yapchangco was shown to be a foe of respondent and neither had the case for bigamy against Garcia and that he already advised his clients
victim Luciano nor his companion Christopher shown to have to settle their other cases. He alleged that Garcia already withdrew the
wronged the respondent. They simply happened to be at the wrong complaints against him.
place and time the early morning of June 3, 1993.
On 11 February 2014, the IBP Board of Governors passed Resolution
The circumstances leading to the death of Luciano solely caused by No. XX-2014-31 denying Sesbreño’s motion for reconsideration. The
respondent, bear the earmarks of moral turpitude. Paraphrasing what IBP-CBD transmitted the records of the case to the Office of the Bar
the Supreme Court observed in Soriano v. Dizon, supra, the Confidant on 20 May 2014. CBD Case No. 08-2273 was redocketed as
respondent, by his conduct, displayed extreme arrogance and feeling A.C. No. 10457. In the Court’s Resolution dated 30 September 2014,
of self-importance. Respondent acted like a god who deserved not to the Court consolidated A.C. No. 7973 and A.C. No. 10457.
therefore, that moral turpitude is somewhat a vague and indefinite
The only issue in these cases is whether conviction for the crime of term, the meaning of which must be left to the process of judicial
homicide involves moral turpitude. inclusion or exclusion as the cases are reached.7
The question of whether conviction for homicide involves moral We reviewed the Decision of this Court and we agree with the IBP-
turpitude was discussed by this Court in International Rice Research CBD that the circumstances show the presence of moral turpitude.
Institute v. NLRC6 where it ruled:chanroblesvirtuallawlibrary
The Decision showed that the victim Luciano Amparado (Amparado)
This is not to say that all convictions of the crime of homicide do not and his companion Christopher Yapchangco (Yapchangco) were
involve moral turpitude. Homicide may or may not involve moral walking and just passed by Sesbreño’s house when the latter, without
turpitude depending on the degree of the crime. Moral turpitude is not any provocation from the former, went out of his house, aimed his
involved in every criminal act and is not shown by every known and rifle, and started firing at them. According to Yapchangco, they were
intentional violation of statute, but whether any particular conviction about five meters, more or less, from the gate of Sesbreño when they
involves moral turpitude may be a question of fact and frequently heard the screeching sound of the gate and when they turned around,
depends on all the surrounding circumstances. While x x x generally they saw Sesbreño aiming his rifle at them. Yapchangco and
but not always, crimes mala in se involve moral turpitude, while Amparado ran away but Amparado was hit. An eyewitness, Rizaldy
crimes mala prohibita do not, it cannot always be ascertained whether Rabanes (Rabanes), recalled that he heard shots and opened the
moral turpitude does or does not exist by classifying a crime as malum window of his house. He saw Yapchangco and Amparado running
in se or as malum prohibitum, since there are crimes which are mala in away while Sesbreño was firing his firearm rapidly, hitting Rabanes’
se and yet rarely involve moral turpitude and there are crimes which house in the process. Another witness, Edwin Parune, saw Amparado
involve moral turpitude and are mala prohibita only. It follows 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 which accrued due to the late payment of the principal obligation.
Victoria deposited the said check but, to her dismay, the check
VICTORIA C. HEENAN, Complainant,
bounced due to insufficiency of funds. Atty. Espejo failed to pay
vs.
despite Victoria’s repeated demands. Worried that she would not be
ATTY. ERLINA ESPEJO, Respondent.
able to recover the amount thus lent, Victoria decided to deposit to her
DECISION 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
VELASCO, JR., J.: dishonored due to insufficiency of funds. Victoria thereafter became
This resolves the administrative complaint filed by Victoria Heenan more aggressive in her efforts to recover her money. She, for instance,
(Victoria) against Atty. Erlina Espejo (Atty. Espejo) before the personally handed to Atty. Espejo a demand letter dated August 3,
Commission on Bar Discipline (CBD) of the Integrated Bar of the 2009.3
Philippines (IBP) for violation of lawyer’s oath, docketed as CBD When Atty. Espejo still refused to pay, Victoria filed a criminal
Case No. 10-2631. complaint against Atty. Espejo on August 18, 2009 for violation of
The Facts Batas Pambansa Blg. 22 and Estafa under Article 315 of the Revised
Penal Code, as amended, before the Quezon City Prosecutor’s Office.4
Sometime in January 2009, Victoria met Atty. Espejo through her
godmother, Corazon Eusebio (Corazon). Following the introduction, Atty. Espejo disregarded the notices and subpoenas issued by the
Corazon told Victoria that Atty. Espejo was her lawyer in need of Quezon City Prosecutor’s Office which she personally received and
money and wanted to borrow two hundred fifty thousand pesos (PhP continued to ignore Victoria’s demands. She attended only one (1)
250,000) from her (Victoria). Shortly thereafter, Victoria went to the scheduled preliminary investigation where she promised to pay her
house of Corazon for a meeting with Atty. Espejo where they loan obligation.5
discussed the terms of the loan. Since Atty. Espejo was introduced to In November 2009, Atty. Espejo issued another check dated December
her as her godmother’s lawyer, Victoria found no reason to distrust the 8, 2009 in the amount of two hundred seventy five thousand pesos
former. Hence, during the same meeting, Victoria agreed to (PhP 275,000.). However, to Victoria’s chagrin, the said check was
accomodate Atty. Espejo and there and then handed to the latter the again dishonored due to insufficiency of funds.6 Atty. Espejo did not
amount of PhP 250,000. To secure the payment of the loan, Atty. file any counter-affidavit or pleading to answer the charges against
Espejo simultaneously issued and turned over to Victoria a her. On November 17, 2009, the case was submitted for resolution
check1 dated February 2, 2009 for two hundred seventy-five thousand without Atty. Espejo’s participation.7 Victoria thereafter filed the
pesos (PhP 275,000) covering the loan amount and agreed interest. On instant administrative case against Atty. Espejo before the CBD. On
due date, Atty. Espejo requested Victoria to delay the deposit of the March 1, 2010, the CBD, through Director for Bar Discipline Alicia A.
check for the reason that she was still waiting for the release of the Risos-Vidal, issued an Order8 directing Atty. Espejo to submit her
proceeds of a bank loan to fund the check. However, after a couple of Answer to Victoria’s administrative complaint failing which would
months of waiting, Victoria received no word from Atty. Espejo as to render her in default. The warning, notwithstanding, Atty. Espejo did
whether or not the check was already funded enough. In July 2009, not submit any Answer. On May 5, 2010, IBP Commissioner Rebecca
Victoria received an Espejo-issued check dated July 10, 2009 in the Villanueva-Malala (Commissioner Villanueva-Malala) notified the
amount of fifty thousand pesos (PhP 50,000)2 representing the interest
parties to appear for a mandatory conference set on June 2, 2010. The RESOLVED to ADOPT and APPROVE, as it is hereby unanimously
notice stated that non-appearance of either of the parties shall be ADOPTED and APPROVED, with modification, the Report and
deemed a waiver of her right to participate in further proceedings.9 Recommendation of the Investigating Commissioner in the above-
entitled case, herein made part of this Resolution as Annex "A", and
At the mandatory conference, only Victoria appeared.10
finding the recommendation fully supported by the evidence on record
Thus, Commissioner Villanueva-Malala issued an Order11 noting Atty. and applicable laws and rules, and considering respondent’s grave
Espejo’s failure to appear during the mandatory conference and her misconduct, Atty. Erlinda Espejo is hereby SUSPENDED from the
failure to file an Answer. Accordingly, Atty. Espejo was declared in practice of law for two (2) years and Ordered to Return to complainant
default. Victoria, on the other hand, was directed to file her verified the amount of Two Hundred Fifty Thousand (₱250,000.00) Pesos
position paper, which she filed on June 11, 2010.12 within thirty (30) days from receipt of notice with legal interest
reckoned from the time the demand was made.
Findings and Recommendation of the IBP
On August 8, 2013, the CBD transmitted to this Court the Notice of
In its Report and Recommendation13 dated July 15, 2010, the CBD the Resolution pertaining to Resolution No. XX-2012-419 along with
recommended the suspension of Atty. Espejo from the practice of law the records of this case.15
and as a member of the Bar for a period of five (5) years.
The Court’s Ruling
The CBD reasoned:
We sustain the findings of the IBP and adopt its recommendation in
The failure of a lawyer to answer the complaint for disbarment despite part.1âwphi1 Atty. Espejo did not deny obtaining a loan from Victoria
due notice and to appear on the scheduled hearings set, shows his or traverse allegations that she issued unfunded checks to pay her
flouting resistance to lawful orders of the court and illustrates his obligation. It has already been settled that the deliberate failure to pay
deficiency for his oath of office as a lawyer, which deserves just debts and the issuance of worthless checks constitute gross
disciplinary sanction. misconduct, for which a lawyer may be sanctioned.16
Moreover, respondent[’s] acts of issuing checks with insufficient funds Verily, lawyers must at all times faithfully perform their duties to
and despite repeated demands [she] failed to comply with her society, to the bar, to the courts and to their clients. In Tomlin II v.
obligation and her disregard and failure to appear for preliminary Moya II, We explained that the prompt payment of financial
investigation and to submit her counter-affidavit to answer the charges obligations is one of the duties of a lawyer, thus:
against her for Estafa and Violation of BP 22, constitute grave
misconduct that also warrant disciplinary action against respondent. In the present case, respondent admitted his monetary obligations to
the complaint but offered no justifiable reason for his continued refusal
On December 14, 2012, the Board of Governors passed a to pay. Complainant made several demands, both verbal and written,
Resolution14 adopting the Report and Recommendation of the CBD but respondent just ignored them and even made himself scarce.
with the modification lowering Atty. Espejo’s suspension from five (5) Although he acknowledged his financial obligations to complainant,
years to two (2) years. Atty. Espejo was also ordered to return to respondent never offered nor made arrangements to pay his debt. On
Victoria the amount of PhP 250,000 within thirty (30) days from the contrary, he refused to recognize any wrong doing nor shown
receipt of notice with legal interest reckoned from the time the demand remorse for issuing worthless checks, an act constituting gross
was made. The Resolution reads:
misconduct. Respondent must be reminded that it is his duty as a just debts and the issuance of worthless checks constitute gross
lawyer to faithfully perform at all times his duties to society, to the misconduct, for which a lawyer may be sanctioned with one-year
bar, to the courts and to his clients. As part of his duties, he must suspension from the practice of law. The same sanction was imposed
promptly pay his financial obligations.17 on the respondent-lawyer in Rangwani v. Dino having been found
guilty of gross misconduct for issuing bad checks in payment of a
The fact that Atty. Espejo obtained the loan and issued the worthless
piece of property the title of which was only entrusted to him by the
checks in her private capacity and not as an attorney of Victoria is of
complainant.19
no moment. As We have held in several cases, a lawyer may be
disciplined not only for malpractice and dishonesty in his profession Further, the misconduct of Atty. Espejo is aggravated by her
but also for gross misconduct outside of his professional capacity. unjustified refusal to obey the orders of the IBP directing her to file an
While the Court may not ordinarily discipline a lawyer for misconduct answer to the complaint of Victoria and to appear at the scheduled
committed in his non- professional or private capacity, the Court may mandatory conference. This constitutes blatant disrespect for the IBP
be justified in suspending or removing him as an attorney where his which amounts to conduct unbecoming a lawyer. In Almendarez, Jr. v.
misconduct outside of the lawyer’s professional dealings is so gross in Langit, We held that a lawyer must maintain respect not only for the
character as to show him morally unfit and unworthy of the privilege courts, but also for judicial officers and other duly constituted
which his licenses and the law confer.18 authorities, including the IBP:
In Wilkie v. Limos, We reiterated that the issuance of a series of The misconduct of respondent is aggravated by his unjustified refusal
worthless checks, which is exactly what Atty. Espejo committed in this to heed the orders of the IBP requiring him to file an answer to the
case, manifests a lawyer’s low regard for her commitment to her oath, complaint-affidavit and, afterwards, to appear at the mandatory
for which she may be disciplined. Thus: conference. Although respondent did not appear at the conference, the
IBP gave him another chance to defend himself through a position
We have held that the issuance of checks which were later dishonored
paper. Still, respondent ignored this directive, exhibiting a blatant
for having been drawn against a closed account indicates a lawyer’s
disrespect for authority. Indeed, he is justly charged with conduct
unfitness for the trust and confidence reposed on her. It shows a lack
unbecoming a lawyer, for a lawyer is expected to uphold the law and
of personal honesty and good moral character as to render her
promote respect for legal processes. Further, a lawyer must observe
unworthy of public confidence. The issuance of a series of worthless
and maintain respect not only to the courts, but also to judicial officers
checks also shows the remorseless attitude of respondent, unmindful to
and other duly constituted authorities, including the IBP. Under Rule
the deleterious effects of such act to the public interest and public
139-B of the Rules of Court, the Court has empowered the IBP to
order. It also manifests a lawyer’s low regard to her commitment to the
conduct proceedings for the disbarment, suspension, or discipline of
oath she has taken when she joined her peers, seriously and irreparably
attorneys.20
tarnishing the image of the profession she should hold in high esteem.
Undoubtedly, Atty. Espejo’s issuance of worthless checks and her
xxxx
blatant refusal to heed the directives of the Quezon City Prosecutor’s
In Barrios v. Martinez, we disbarred the respondent who issued Office and the IBP contravene Canon 1, Rule 1.01; Canon 7, Rule
worthless checks for which he was convicted in the criminal case filed 7.03; and Canon 11 of the Code of Professional Responsibility, which
against him. In Lao v. Medel, we held that the deliberate failure to pay 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 According to Commissioner Dulay, both Special Proceeding No. 99-
95587 and Civil Case No. 00-99207 hinged on the same substantial
ANASTACIO N. TEODORO III, Complainant, v. ATTY. ROMEO
issue, i.e., on whether Manuela held the Malate property in trust for
S. GONZALES, Respondent.
Carmen Teodoro-Reyes, Donato T. Teodoro, Jorge I. Teodoro and
DECISION Teodoro-Marcial.
BRION, J.: In Special Proceeding No. 99-95587, Carmen, Donato, Jorge I.
Teodoro, Jorge T. Teodoro and Teodoro-Marcial claimed that they are
We resolve this disbarment complaint against Atty. Romeo S. the heirs of Manuela. During her lifetime, Manuela was the registered
Gonzales for violation of the Code of Professional Responsibility for owner of a parcel of land located in Malate, Manila. According to the
the forum shopping he allegedly committed. heirs, Manuela held the lot in trust for them, but she sold it to
In his complaint,1 Anastacio N. Teodoro Ill related that Atty. Gonzales Anastacio and Rogelio Ng. Thus, the heirs prayed for the issuance of
acted as counsel of Araceli Teodoro-Marcial in two civil cases that the letters of administration so that Manuelas properties could be
latter filed against him. The first ccise, Special Proceeding No. 99- inventoried and settled in accordance with law.
95587,2 involved the settlement of the intestate estate of Manuela In Civil Case No. 00-99207, the heirs of Manuela claimed to be the
Teodoro. While the settlement proceeding was pending, Atty. beneficiaries of a trust held by Manuela over the same parcel of land
Gonzales assisted contested in Special Proceeding No. 99-95587. They alleged that
Teodord-Marcial in filing Civil Case No. 00-99207,3 for Annulment of during her lifetime, Manuela sold a portion of this land to Anastacio.
Document, Reconveyance and Damages, without indicating the special They asked the trial court to annul the Deed of Absolute Sale executed
proceeding earlier tiled. The tiling of the civil cases, according to by Manuela; to cancel the resulting Transfer Certificate of Title in the
Anastacio, was a deliberate act of forum shopping that warrants the name of Anastacio; and to issue a new one in their names.
disbarment of Atty. Gonzales. The commissioner found that a ruling in either case would result in res
Atty. Gonzales admitted that he assisted Teodoro-Marcial in tiling the judicata over the other. Thus, Atty. Gonzales committed forum
two cases. He asserted, however,, that he did not violate the forum shopping when he instituted Civil Case No. 00-99207 without
shopping rule as the cases were not identical in terms of parties, indicating that Special Proceeding No. 99-95587 was still pending. In
subject matter and remedies. Atty. Gonzales also opined that the committing forum shopping, Atty. Gonzales disregarded the Supreme
complainant only filed the disbarment case to harass him.4?r?l1 Court Circular prohibiting forum shopping and thus violated Canon 1
of the Code of Professional Responsibility.
The Investigating Commissioners Findings
Commissioner Dulay recommended that Atty. Gonzales be suspended
In our Resolution5 dated March 13, 2006, we referred the disbarment for one month from the practice of law, with a warning that a
complaint to the Commission on Bar Discipline of the Integrated Bar repetition of a similar offense would merit a more severe penalty.
of the Philippines (IBP) for investigation, report and recommendation.
In his Report and Recommendation6 dated July 5, 2010, Commissioner The Board of Governors of the IBP reversed the commissioners
Caesar R. Dulay found Atty. Gonzales administratively liable for recommendation. In a resolution7 dated December 10, 2011, the Board
forum shopping.
of Governors dismissed the case against Atty. Gonzales for lack of Meanwhile, Anastacio, the oppositor in Special Proceeding No. 99-
merit. 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
The Issue
allegedly held in trust by Manuela.
The case directly poses to us the question of whether Atty. Gonzales
Identity of causes of action
committed forum shopping and thereby violated the Code of
Professional Responsibility. 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
The Courts Ruling
establish the former and the present causes of action.10 The heirs of
We agree with the findings of the commissioner and accordingly Manuela cannot avoid the application of res judicata by simply varying
reverse the resolution of the IBP Board of Governors, but we modify the form of their action or by adopting a different method of presenting
the commissioners recommended penalty to censure and a warning it.11?r?l1
that another violation would merit a more severe penalty.
In Special Proceeding No. 99-95587, the trial court held that it had no
Forum shopping exists when, as a result of an adverse decision in one jurisdiction over the case, as Manuela left no properties at the time of
forum, or in anticipation thereof, a party seeks a favorable opinion in her death. The lot in Malate, Manila, which was the sole property that
another forum through means other than appeal or certiorari.8?r?l1 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
There is forum shopping when the elements of litis pendencia are court did not give credence to their claim that Manuela held the
present or where a final judgment in one case will amount to res property in trust for them.
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) Meanwhile, in Civil Case No. 00-99207, the trial court issued an order
identity of rights or causes of action, and (c) identity of relief granting Anastacios Motion for Demurrer to Evidence. It held that the
sought.9?r?l1 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
Under this test, we find that Atty. Gonzales committed forum shopping that the sale of a portion of the lot to Anastacio was void.
when he filed Civil Case No. 00-99207 while Special Proceeding No.
99-95587 was pending. 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
Identity of Parties parties claim in the two cases depended on the existence of the trust
An identity of parties exists in Special Proceeding No. 99-95587 and Manuela allegedly held in their favor. Thus, the evidence necessary to
Civil Case No. 00-99207. In both cases, the initiating parties are the prove their claim was the same.
same, to wit: Carmen, Donato, Teodoro-Marcial, Jorge I. Teodoro, Identity of relief sought
Rowena Teodoro, Abigail Teodoro and Jorge T. Teodoro. They
represented the same interest in both cases. All claimed to be the In Special Proceeding No. 99-95587, the heirs of Manuela prayed for
legitimate heirs of Manuela and co-owners of the land that she held in the issuance of letters of administration, the liquidation of Manuelas
trust for them. estate, and its distribution among her legal heirs.
Meanwhile, in Civil Case No. 00-99207, the heirs of Manuela asked "Lawyers should be reminded that their primary duty is to assist the
for the annulment of the deed of absolute sale Manuela executed in courts in the administration of justice. Any conduct that tends to delay,
favor of Anastacio. They likewise asked the court to cancel the impede or obstruct the administration of justice contravenes this
resulting Transfer Certificate of Title issued in favor of the latter, and obligation."13?r?l1
to issue a new one in their names.
The Court has repeatedly warned lawyers against resorting to forum
While the reliefs prayed for in the initiatory pleadings of the two cases shopping since the practice clogs the Court dockets and can lead to
are different in form, a ruling in one case would have resolved the conflicting rulings.14 Willful and deliberate forum shopping has been
other, and vice versa. To illustrate, had the lot been declared as part of made punishable either as direct or indirect contempt of court in SC
the estate of Manuela in Special Proceeding No. 99-95587, there
Administrative Circular No. 04-94 dated April 1, 1994.15?r?l1
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- In engaging in forum shopping, Atty. Gonzales violated Canon 1 of
99207 been annulled, then the property would go back to the hands of the Code of Professional Responsibility which directs lawyers to obey
the heirs of Manuela. Placing the property under administration, as the laws of the land and promote respect for the law and legal
prayed for in Special Proceeding No. 99-95587, would have been processes. He also disregarded his duty to assist in the speedy and
unnecessary. efficient administration of justice,16 and the prohibition against unduly
delaying a case by misusing court processes.17?r?l1
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 To our mind, however, the supreme penalty of disbarment would be
litis pendentia and res judicata are present, Atty. Gonzales committed very harsh in light of all the circumstances of this case. Neither is the
forum shopping when he filed Civil Case No. 00-99207 without commissioners recommended penalty of suspension consistent with
indicating that Special Proceeding No. 99-95587 was still pending. prior rulings of the Court.
As Commissioner Dulay observed:cralawlibrary 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
Respondent was fully aware, since he was the counsel for both cases,
Court of Appeals thirty-three days after a similar petition had been
that he raised the issue of trust with respect to the Malate property in
filed with the Supreme Court. We also found him guilty of direct
the 1999 Letters of Administration case and that he was raising the
contempt.
same similar issue of trust in the 2000 annulment case xxx
The present case finds favorable comparison with Guanzon. Like
To advise his client therefore to execute the affidavit of non-forum
Espiritu, Atty. Gonzales misused court processes in contravention of
shopping for the second case (annulment case) and state that there is
the express rule against forum shopping. We held then that Espiritu
no pending case involving the same or similar issue would constitute
should be penalized and we imposed the penalty of censure the penalty
misconduct which should be subject to disciplinary action. It was his
usually imposed for an isolated act of misconduct of a lesser
duty to advise his client properly, and his failure to do so, in fact his
nature.19?r?l1
deliberate assertion that there was no falsity in the affidavit is
indicative of a predisposition to take lightly his duty as a lawyer to Lawyers are also censured for minor infractions against the lawyers
promote respect and obedience to the law.12?r?l1 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 repurchased within the said period, "the parties shall renew [the]
instrument/agreement."4
FLORENCIO A. SALADAGA, Complainant,
vs. Respondent failed to exercise his right of repurchase within the period
ATTY. ARTURO B. ASTORGA, Respondent. provided in the deed, and no renewal of the contract was made even
after complainant sent respondent a final demand dated May 10, 1984
x-----------------------x
for the latter to repurchase the property. Complainant remained in
A.C. No. 4728 peaceful possession of the property until December 1989 when he
received letters from the Rural Bank of Albuera (Leyte), Inc. (RBAI)
FLORENCIO A. SALADAGA, Complainant, informing him that the property was mortgaged by respondent to
vs. RBAI, that the bank had subsequently foreclosed on the property, and
ATTY. ARTURO B. ASTORGA, Respondent. that complainant should therefore vacate the property.5
DECISION Complainant was alarmed and made aninvestigation. He learned the
LEONARDO-DE CASTRO, J.: following:
Membership in the legal profession is a high personal privilege (1) TCT No. T-662 was already cancelled by TCT No. T-3211 in the
burdened with conditions,1 including continuing fidelity to the law and name of Philippine National Bank (PNB) as early as November 17,
constant possession of moral fitness. Lawyers, as guardians of the law, 1972 after foreclosure proceedings;
play a vital role in the preservation of society, and a consequent (2) TCT No. T-3211 was cancelled by TCT No. T-7235 in the names
obligation of lawyers is to maintain the highest standards of ethical of respondent and his wife on January 4, 1982 pursuant to a deed of
conduct.2 Failure to live by the standards of the legal profession and to sale dated March 27,1979 between PNB and respondent;
discharge the burden of the privilege conferred on one as a member of
the bar warrant the suspension or revocation of that privilege. (3) Respondent mortgaged the subject property to RBAI on March 14,
1984, RBAI foreclosed on the property, and subsequently obtained
The Factual Antecedents TCT No. TP-10635 on March 27, 1991.6 Complainant was
Complainant Florencio A. Saladaga and respondent Atty. Arturo B. subsequently dispossessed of the property by RBAI.7
Astorga entered into a "Deed of Sale with Right to Repurchase" on Aggrieved, complainant instituted a criminal complaint for estafa
December 2, 1981 where respondent sold (with rightof repurchase) to against respondent with the Office of the Provincial Prosecutor of
complainant a parcel of coconut land located at Barangay Bunga, Leyte, docketed as I.S. No. 95-144. The Provincial Prosecutor of Leyte
Baybay, Leyte covered by Transfer Certificate of Title (TCT) No. T- approved the Resolution8 dated April 21, 1995 in I.S. No. 95-144
662 for ₱15,000.00. Under the said deed, respondent represented that finding that "[t]he facts of [the] case are sufficient to engender a well-
he has "the perfect right to dispose as owner in fee simple" the subject founded belief that Estafa x x x has been committed and that
property and that the said property is "free from all liens and respondent herein is probably guilty thereof."9 Accordingly, an
encumbrances."3 The deed also provided that respondent, as vendor a Information10 dated January 8,1996 was filed before the Municipal
retro, had two years within which to repurchase the property, and if not Trial Court (MTC) of Baybay, Leyte, formally charging respondent
with the crime of estafa under Article 316, paragraphs 1 and 2 of the In a Report and Recommendation16 dated April 29, 2005, the
Revised Penal Code,11 committed as follows: Investigating Commissioner of the IBP’s Commission on Bar
Discipline found that respondent was in bad faith when he dealt with
On March 14, 1984, accused representing himself as the owner of a
complainant and executed the "Deed of Sale with Right to
parcel of land known as Lot No. 7661 of the Baybay Cadastre,
Repurchase" but later on claimed that the agreement was one of
mortgaged the same to the Rural Bank of Albuera, Albuera, Leyte,
equitable mortgage. Respondent was also guilty of deceit or fraud
within the jurisdiction of this Honorable Court, knowing fully well that
when he represented in the "Deed of Sale with Right to Repurchase"
the possessor and owner at that time was private complainant
dated December 2, 1981 that the property was covered by TCT No. T-
Florencio Saladaga by virtue of a Pacto de Retro Sale which accused
662, even giving complainant the owner’s copy of the said certificate
executed in favor of private complainant on 2nd December, 1981,
of title, when the said TCT had already been cancelled on November
without first redeeming/repurchasing the same. [P]rivate complainant
17, 1972 by TCT No. T-3211 in the name of Philippine National Bank
knowing of accused[’s] unlawful act only on or about the last week of
(PNB). Respondent made matters even worse, when he had TCT No.
February, 1991 when the rural bank dispossessed him of the property,
T-3211 cancelled with the issuance of TCT No. T-7235 under his and
the mortgage having been foreclosed, private complainant thereby
his wife’s name on January 4,1982 without informing complainant.
suffered damages and was prejudiced by accused[’s] unlawful
This was compounded by respondent’s subsequent mortgage of the
transaction and misrepresentation.
property to RBAI, which led to the acquisition of the property by
The aforementioned estafa case against respondent was docketed as RBAI and the dispossession thereof of complainant. Thus, the
Criminal Case No. 3112-A. Investigating Commissioner recommended that respondent be (1)
suspended from the practice of law for one year, with warning that a
Complainant likewise instituted the instant administrative cases similar misdeed in the future shall be dealt with more severity, and (2)
against respondent by filing before this Court an Affidavit- ordered to return the sum of ₱15,000.00, the amount he received as
Complaint12 dated January 28, 1997 and Supplemental consideration for the pacto de retrosale, with interest at the legal rate.
Complaint13 dated February 27, 1997, which were docketed as A.C.
No. 4697 and A.C. No. 4728, respectively. In both complaints, Considering respondent’s "commission of unlawful acts, especially
complainant sought the disbarment of respondent. crimes involving moral turpitude, actsof dishonesty, grossly immoral
conduct and deceit," the IBP Board of Governors adopted and
The administrative cases were referred to the Integrated Bar of the approved the Investigating Commissioner’s Report and
Philippines (IBP) for investigation, report and recommendation.14 Recommendation with modification as follows: respondent is(1)
In his Consolidated Answer15 dated August 16, 2003 filed before the suspended from the practice of law for two years, with warning that a
IBP, respondent denied that his agreement with complainant was a similar misdeed in the future shall be dealt with more severity, and (2)
pacto de retrosale. He claimed that it was an equitable mortgage and ordered to return the sum of ₱15,000.00 received in consideration of
that, if only complainant rendered an accounting of his benefits from the pacto de retrosale, with legal interest.17
the produce of the land, the total amount would have exceeded The Court’s Ruling
₱15,000.00.
The Court agrees with the recommendation of the IBP Board of
Report and Recommendation of the Investigating Commissioner and Governors to suspend respondent from the practice of law for two
Resolution of the IBP Board of Governors
years, but it refrains from ordering respondent to return the ₱15,000.00 resolved. His imprecise and misleading wording of the said deed on its
consideration, plus interest. 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
Respondent does not deny executing the "Deed of Sale with Right to
best of [his] knowledge and discretion."
Repurchase" dated December 2, 1981 in favor of complainant.
However, respondent insists that the deed is not one of sale with pacto More significantly, respondent transgressed the laws and the
de retro, but one of equitable mortgage. Thus, respondent argues that fundamental tenet of human relations asembodied in Article 19 of the
he still had the legal right to mortgage the subject property to other Civil Code:
persons. Respondent additionally asserts that complainant should
Art. 19. Every person must, in the exercise of his rights and in the
render an accounting of the produce the latter had collected from the
performance of his duties, act with justice, give everyone his due, and
said property, which would already exceed the ₱15,000.00
observe honesty and good faith.
consideration stated in the deed.
Respondent, as owner of the property, had the right to mortgage it to
There is no merit in respondent’s defense.
complainant but, as a lawyer, he should have seen to it that his
Regardless of whether the written contract between respondent and agreement with complainant is embodied in an instrument that clearly
complainant is actually one of sale with pacto de retroor of equitable expresses the intent of the contracting parties. A lawyer who drafts a
mortgage, respondent’s actuations in his transaction with complainant, contract must see to it that the agreement faithfully and clearly reflects
as well as in the present administrative cases, clearly show a disregard the intention of the contracting parties. Otherwise, the respective rights
for the highest standards of legal proficiency, morality, honesty, and obligations of the contracting parties will be uncertain, which
integrity, and fair dealing required from lawyers, for which respondent opens the door to legal disputes between the said parties. Indeed, the
should be held administratively liable. uncertainty caused by respondent’s poor formulation of the "Deed of
Sale with Right to Repurchase" was a significant factor in the legal
When respondent was admitted to the legal profession, he took an oath
controversy between respondent and complainant. Such poor
where he undertook to "obey the laws," "do no falsehood," and
formulation reflects at the very least negatively on the legal
"conduct [him]self as a lawyer according to the best of [his]
competence of respondent.
knowledge and discretion."18 He gravely violated his oath.
Under Section 63 of the Land Registration Act,19 the law in effect at
The Investigating Commissioner correctly found, and the IBP Board of
the time the PNB acquired the subject property and obtained TCT No.
Governors rightly agreed, that respondent caused the ambiguity or
T-3211 in its name in 1972, where a decree in favor of a purchaser
vagueness in the "Deed of Sale with Right to Repurchase" as he was
who acquires mortgaged property in foreclosure proceedings becomes
the one who prepared or drafted the said instrument. Respondent could
final, such purchaser becomes entitled to the issuance of a new
have simply denominated the instrument as a deed of mortgage and
certificate of title in his name and a memorandum thereof shall be
referred to himself and complainant as "mortgagor" and "mortgagee,"
"indorsed upon the mortgagor’s original certificate."20 TCT No. T-662,
respectively, rather than as "vendor a retro" and "vendee a retro." If
which respondent gave complainant when they entered into the "Deed
only respondent had been more circumspect and careful in the drafting
of Sale with Right to Repurchase" dated December 2, 1981, does not
and preparation of the deed, then the controversy between him and
bearsuch memorandum but only a memorandum on the mortgage of
complainant could havebeen avoided or, at the very least, easily
the property to PNB in 1963 and the subsequent amendment of the [Having] the proclivity for fraudulent and deceptive misrepresentation,
mortgage. 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
Respondent dealt with complainant with bad faith, falsehood, and
to be deceitful, the person must either have knowledge of the falsity or
deceit when he entered into the "Deed of Sale with Right to
acted in reckless and conscious ignorance thereof, especially if the
Repurchase" dated December 2, 1981 with the latter. He made it
parties are not on equal terms, and was done with the intent that the
appear that the property was covered by TCT No. T-662 under his
aggrieved party act thereon, and the latter indeed acted in reliance of
name, even giving complainant the owner’s copy of the said certificate
the false statement or deed in the manner contemplated to his
oftitle, when the truth is that the said TCT had already been cancelled
injury.24 The actions of respondent in connection with the execution of
some nine years earlier by TCT No. T-3211 in the name of PNB. He
the "Deed of Sale with Right to Repurchase" clearly fall within the
did not evencare to correct the wrong statement in the deed when he
concept of unlawful, dishonest, and deceitful conduct. They violate
was subsequently issued a new copy of TCT No. T-7235 on January 4,
Article 19 of the Civil Code. They show a disregard for Section 63 of
1982,21 or barely a month after the execution of the said deed. All told,
the Land Registration Act. They also reflect bad faith, dishonesty, and
respondent clearly committed an act of gross dishonesty and deceit
deceit on respondent’s part. Thus, respondent deserves to be
against complainant.
sanctioned.
Canon 1 and Rule 1.01 of the Codeof Professional Responsibility
Respondent’s breach of his oath, violation of the laws, lack of good
provide:
faith, and dishonesty are compounded by his gross disregard of this
CANON 1 – A lawyer shall uphold the constitution, obey the laws of Court’s directives, as well as the orders of the IBP’s Investigating
the land and promote respect for law and legal processes. 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
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral and recommendation), which caused delay in the resolution of these
or deceitful conduct. Under Canon 1, a lawyer is not only mandated to administrative cases.
personally obey the laws and the legal processes, he is moreover
expected to inspire respect and obedience thereto. On the other hand, In particular, the Court required respondent to comment on
Rule 1.01 states the norm of conduct that is expected of all lawyers.22 complainant’s Affidavit-Complaint in A.C. No. 4697 and
Supplemental Complaint in A.C. No. 4728 on March 12, 1997 and
Any act or omission that is contrary to, prohibited or unauthorized by, June 25, 1997, respectively.25 While he requested for several
in defiance of, disobedient to, or disregards the law is "unlawful." extensions of time within which to submit his comment, no such
"Unlawful" conduct does not necessarily imply the element of comment was submitted prompting the Court to require him in a
criminality although the concept is broad enough to include such Resolution dated February 4,1998 to (1) show cause why he should not
element.23 be disciplinarily dealt with or held in contempt for such failure, and (2)
To be "dishonest" means the disposition to lie, cheat, deceive, defraud submit the consolidated comment.26 Respondent neither showed cause
or betray; be untrustworthy; lacking inintegrity, honesty, probity, why he should not be disciplinarily dealt with or held in contempt for
integrity in principle, fairness and straightforwardness. On the other such failure, nor submitted the consolidated comment.
hand, conduct that is "deceitful" means as follows:
When these cases were referred to the IBP and during the proceedings The Court, however, will not adopt the recommendation of the IBP to
before the IBP’s Investigating Commissioner, respondent was again order respondent to return the sum of ₱15,000.00 he received from
required several times to submit his consolidated answer. He only complainant under the "Deed of Sale with Right to Repurchase." This
complied on August 28, 2003, or more than six years after this Court is a civil liability best determined and awarded in a civil case rather
originally required him to do so. The Investigating Commissioner also than the present administrative cases.
directed the parties to submit their respective position papers. Despite
In Roa v. Moreno,29 the Court pronounced that "[i]n disciplinary
having been given several opportunities to submit the same,
proceedings against lawyers, the only issue is whether the officer of
respondent did not file any position paper.27
the court is still fit to be allowed to continue as a member of the Bar.
Respondent’s disregard of the directives of this Court and of the Our only concern is the determination of respondent’s administrative
Investigating Commissioner, which caused undue delay in these liability. Our findings have no material bearing on other judicial action
administrative cases, contravenes the following provisions of the Code which the parties may choose to file against each other."While the
of Professional Responsibility: respondent lawyer’s wrongful actuations may give rise at the same
time to criminal, civil, and administrative liabilities, each must be
CANON 11 – A lawyer shall observe and maintain the respect due to
determined in the appropriate case; and every case must be resolved in
the courts and to judicial officers and should insist on similar conduct
accordance with the facts and the law applicable and the quantum of
by others.
proof required in each. Section 5,30 in relation to Sections 131 and
xxxx 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
CANON 12 – A lawyer shall exert every effort and consider it his duty beyond reasonable doubt as in criminal cases, or preponderance of
to assist in the speedy and efficient administration of justice. evidence asin civil cases. Substantial evidence is that amount of
xxxx relevant evidence which a reasonable mind might accept as adequate
to justify a conclusion.33
Rule 12.03 – A lawyer shall not, after obtaining extensions of time to
file pleadings, memoranda or briefs, let the period lapse without The Court notes that based on the same factual antecedents as the
submitting the same or offering an explanation for his failure to do so. present administrative cases, complainant instituted a criminal case for
estafa against respondent, docketed as Criminal Case No. 3112-A,
Rule 12.04 – A lawyer shall not unduly delay a case, impede the before the MTC. When a criminal action is instituted, the civil action
execution of a judgment or misuse court processes. for the recovery of civil liability arising from the offense charged shall
Respondent’s infractions are aggravated by the fact that he has already be deemed instituted with the criminal action unless the offended party
been imposed a disciplinary sanction before.1âwphi1 In Nuñez v. Atty. waives the civil action, reserves the right to institute it separately or
Astorga,28 respondent was held liable for conduct unbecoming an institutes the civil action prior to the criminal action.34 Unless the
attorney for which he was fined ₱2,000.00. complainant waived the civil action, reserved the right to institute it
separately, or instituted the civil action prior to the criminal action,
Given the foregoing, the suspension of respondent from the practice of then his civil action for the recovery of civil liability arising from the
law for two years, as recommended by the IBP Board of Governors, is estafa committed by respondent is deemed instituted with Criminal
proper. 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 be reviewed and the parties would be informed if there was a need for
clarificatory questioning; otherwise, the case would be submitted for
A.C. No. 10579, December 10, 2014
resolution based on the documents on file. The Minutes8 of the
ERLINDA FOSTER, Complainant, v. ATTY. JAIME V. mandatory conference showed that respondent arrived at 11:10 o’clock
AGTANG, Respondent. in the morning or after the proceeding was terminated.
DECISION
PER CURIAM: On December 12, 2011, the complainant filed her Reply to
1
This refers to the Resolution of the Board of Governors (BOG), respondent’s Answer.
Integrated Bar of the Philippines (IBP), dated March 23, 2014,
affirming with modification the findings of the Investigating On April 18, 2012, complainant submitted copies of the January 24,
Commissioner, who recommended the suspension of respondent Atty. 2012 Decisions9 of the Municipal Trial Court in Small Claims Case
Jaime V. Agtang (respondent) from the practice of law for one (1) year Nos. 2011-0077 and 2011-0079, ordering respondent [defendant
for ethical impropriety and ordered the payment of his unpaid therein] to pay complainant and her husband the sum of P100,000.00
obligations to complainant. 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
From the records, it appears that the IBP, thru its Commission on Bar
Discipline (CBD), received a complaint2, dated May 31, 2011, filed by Complainant’s Position
Erlinda Foster (complainant) against respondent for “unlawful,
dishonest, immoral and deceitful”3 acts as a lawyer. 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
In its July 1, 2011 Order,4 the IBP-CBD directed respondent to file his legal services for the filing of the appropriate case in court, for which
Answer within 15 days from receipt of the order. Respondent failed to they signed a contract. Complainant paid respondent P20,000.00 as
do so and complainant sent a query as to the status of her complaint. acceptance fee and P5,000.00 for incidental expenses.11
On October 10, 2011, the Investigating Commissioner issued the
Order5 setting the case for mandatory conference/hearing on On September 28, 2009, respondent wrote a letter12 to Tropical Villas
November 16, 2011. It was only on November 11, 2011, or five (5) Subdivision in relation to the legal problem referred by complainant.
days before the scheduled conference when respondent filed his He then visited the latter in her home and asked for a loan of
verified Answer.6 P100,000.00, payable in sixty (60) days, for the repair of his car.
Complainant, having trust and confidence on respondent being her
During the conference, only the complainant together with her lawyer, agreed to lend the amount without interest. A promissory
husband appeared. She submitted a set of documents contained in a note13 evidenced the loan.
folder, copies of which were furnished the respondent. The
Investigating Commissioner7 indicated that the said documents would
On August 31, 2010, respondent came to complainant’s house and
In November 2009, complainant became aware that Tierra Realty was demanded the sum of P50,000.00, purportedly to be given to the judge
attempting to transfer to its name a lot she had previously purchased. in exchange for a favorable ruling. Complainant expressed her
She referred the matter to respondent who recommended the misgivings on this proposition but she eventually gave the amount of
immediate filing of a case for reformation of contract with damages. P25,000.00 which was covered by a receipt,17 stating that “it is
On November 8, 2009, respondent requested and thereafter received understood that the balance of P25,000.00 shall be paid later after
from complainant the amount of P150,000.00, as filing fee.14 When favorable judgment for plaintiff Erlinda Foster.” On November 2,
asked about the exorbitant amount, respondent cited the high value of 2010, respondent insisted that the remaining amount be given by
the land and the sheriffs’ travel expenses and accommodations in complainant prior to the next hearing of the case, because the judge
Manila, for the service of the summons to the defendant corporation. was allegedly asking for the balance. Yet again, complainant handed to
Later, complainant confirmed that the fees paid for the filing of Civil respondent the amount of P25,000.00.18
Case No. 14791-65, entitled Erlinda Foster v. Tierra Realty and
Development Corporation, only amounted to P22,410.00 per trial On September 29, 2010, complainant’s case was dismissed. Not
court records.15 having been notified by respondent, complainant learned of the
dismissal on December 14, 2010, when she personally checked the
During a conversation with the Registrar of Deeds, complainant also status of the case with the court. She went to the office of respondent,
discovered that respondent was the one who notarized the document but he was not there. Instead, one of the office staff gave her a copy of
being questioned in the civil case she filed. When asked about this, the order of dismissal.
respondent merely replied that he would take a collaborating counsel
to handle complainant’s case. Upon reading a copy of the complaint On December 15, 2010, respondent visited complainant and gave her a
filed by respondent with the trial court, complainant noticed that: 1] copy of the motion for reconsideration. On January 15, 2011,
the major differences in the documents issued by Tierra Realty were complainant went to see respondent and requested him to prepare a
not alleged; 2] the contract to buy and sell and the deed of conditional reply to the comment filed by Tierra Realty on the motion for
sale were not attached thereto; 3] the complaint discussed the method reconsideration; to include additional facts because the Land
of payment which was not the point of contention in the case; and 4] Registration Authority would not accept the documents unless these
the very anomalies she complained of were not mentioned. were amended; and to make the additional averment that the defendant
Respondent, however, assured her that those matters could be brought was using false documents.
up during the hearings.
On February 2, 2011, complainant decided to terminate the services of Further, respondent belied the Registrar’s comment as to his
respondent as her counsel and wrote him a letter of termination,20 after representation of Tierra Realty in the past. Respondent saw nothing
her friend gave her copies of documents showing that respondent had wrong in this situation since complainant was fully aware that another
been acquainted with Tierra Realty since December 2007. counsel was assisting him in the handling of cases. Having been fully
Subsequently, complainant wrote to respondent, requesting him to pay informed of the nature of her cause of action and the consequences of
her the amounts he received from her less the contract fee and the the suit, complainant was aware of the applicable law on reformation
actual cost of the filing fees. Respondent never replied. of contracts. Finally, by way of counterclaim, respondent demanded
just compensation for the services he had rendered in other cases for
Respondent’s Position the complainant.
In his Answer,21 respondent alleged that he was 72 years old and had Reply of Complainant
been engaged in the practice of law since March 1972, and was
President of the IBP Ilocos Norte Chapter from 1998 to 1999. He In her Reply,22 complainant mainly countered respondent’s defenses
admitted the fact that he notarized the Deed of Absolute Sale subject by making reference to the receipts in her possession, all evidencing
of complainant’s case, but he qualified that he was not paid his notarial that respondent accepted the amounts mentioned in the complaint.
fees therefor. He likewise admitted acting as counsel for complainant Complainant also emphasized that respondent and Tierra Realty had
for which he claimed to have received P10,000.00 as acceptance fee relations long before she met him. While respondent was employed as
and P5,000.00 for incidental fees. Anent the loan of P100,000.00, Provincial Legal Officer of the Provincial Government of Ilocos Norte,
respondent averred that it was complainant, at the behest of her he was involved in the preparation of several documents involving
husband, who willingly offered the amount to him for his patience in Flying V, an oil company owned by Ernest Villavicencio, who
visiting them at home and for his services. The transaction was likewise owned Tierra Realty. Complainant insisted that the amount of
declared as “no loan” and he was told not to worry about its payment. P100,000.00 she extended to respondent was never considered as “no
As regards the amount of P150,000.00 he received for filing fees, loan.”
respondent claimed that the said amount was suggested by the
complainant herself who was persistent in covering the incidental On June 26, 2012, complainant furnished the Investigating
expenses in the handling of the case. He denied having said that the Commissioner copies of the Resolution, dated June 20, 2012, issued
sheriffs of the court would need the money for their hotel by the Office of the City Prosecutor of Laoag City, finding probable
accommodations. Complainant’s husband approved of the amount. In cause against respondent for estafa.23
the same vein, respondent denied having asked for a loan of
P50,000.00 and having received P22,000.00 from complainant. He Findings and Recommendation of the IBP
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 In its July 3, 2012 Report and Recommendation,24 the Investigating
Commissioner found respondent guilty of ethical impropriety and Rule 1.0, Canon 1 of the CPR, provides that “[a] lawyer shall not
recommended his suspension from the practice of law for one (1) year. engage in unlawful, dishonest, immoral or deceitful conduct.” It is
well-established that a lawyer’s conduct is “not confined to the
In its September 28, 2013 Resolution, the IBP-BOG adopted and performance of his professional duties. A lawyer may be disciplined
approved with modification the recommendation of suspension by the for misconduct committed either in his professional or private
Investigating Commissioner and ordered respondent to return to capacity. The test is whether his conduct shows him to be wanting in
complainant: 1) his loan of P122,000.00; and 2) the balance of the moral character, honesty, probity, and good demeanor, or whether it
filing fee amounting to P127,590.00. renders him unworthy to continue as an officer of the court.”27
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 On January 4, 1987, after a two-year courtship and engagement,
Florence and respondent Philipp T. Sin (hereafter "Philipp"), a
FLORENCE MALCAMPO-SIN, petitioner,
Portugese citizen, were married at St. Jude Catholic Parish in San
vs.
Miguel, Manila.7
PHILIPP T. SIN, respondent.
On September 20, 1994, Florence filed with the Regional Trial Court,
PARDO, J.:
Branch 158, Pasig City, a complaint for "declaration of nullity of
The Family Code emphasizes the permanent nature of marriage, marriage" against Philipp.8 Trial ensued and the parties presented their
hailing it as the foundation of the family.1 It is this inviolability which respective documentary and testimonial evidence.
is central to our traditional and religious concepts of morality and
On June 16, 1995, the trial court dismissed Florence's petition.9
provides the very bedrock on which our society finds
stability.2 Marriage is immutable and when both spouses give their On December 19, 1995, Florence filed with the trial court a notice of
consent to enter it, their consent becomes irrevocable, unchanged even appeal to the Court of Appeals.10
by their independent wills.
After due proceedings, on April 30, 1998, the Court of Appeals
However, this inviolability depends on whether the marriage exists and promulgated its decision, the dispositive portion of which reads:
is valid. If it is void ab initio, the "permanence" of the union becomes
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is
irrelevant, and the Court can step in to declare it so. Article 36 of the
DISMISSED. The Decision appealed from is AFFIRMED. Cost
Family Code is the justification.3 Where it applies and is duly proven,
against the Appellant."11
a judicial declaration can free the parties from the rights, obligations,
burdens and consequences stemming from their marriage. On June 23, 1998, petitioner filed with the Court of Appeals a motion
for reconsideration of the aforequoted decision.12
A declaration of nullity of marriage under Article 36 of the Family
Code requires the application of procedural and substantive guidelines. On January 19, 1999, the Court of Appeals denied petitioner's motion
While compliance with these requirements mostly devolves upon for reconsideration.13
petitioner, the State is likewise mandated to actively intervene in the
procedure. Should there be non-compliance by the State with its Hence, this appeal.14
statutory duty, there is a need to remand the case to the lower court for The Court's Ruling
proper trial.
We note that throughout the trial in the lower court, the State did not
The Case participate in the proceedings. While Fiscal Jose Danilo C.
What is before the Court4 is an appeal from a decision of the Court of Jabson15 filed with the trial court a manifestation dated November 16,
Appeals5 which affirmed the decision of the Regional Trial Court, 1994, stating that he found no collusion between the parties,16 he did
Branch 158, Pasig City6 dismissing petitioner Florence Malcampo- not actively participate therein. Other than entering his appearance at
Sin's (hereafter "Florence") petition for declaration of nullity of certain hearings of the case, nothing more was heard from him.
marriage due to psychological incapacity for insufficiency of evidence. Neither did the presiding Judge take any step to encourage the fiscal to
contribute to the proceedings.
The Facts
The Family Code mandates: investigating prosecutor was not given an opportunity to present
controverting evidence before the judgment was rendered. This
"ARTICLE 48. In all cases of annulment or declaration of absolute
stresses the importance of the participation of the State.
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 Having so ruled, we decline to rule on the factual disputes of the case,
prevent collusion between the parties and to take care that evidence is this being within the province of the trial court upon proper re-trial.
not fabricated or suppressed (italics ours).
Obiter Dictum
"In the cases referred to in the preceding paragraph, no judgment shall
For purposes of re-trial, we guide the parties thus: In Republic vs.
be based upon a stipulation of facts or confession of judgment."
Court of Appeals,20 the guidelines in the interpretation and application
It can be argued that since the lower court dismissed the petition, the of Article 36 of the Family Code are as follows (omitting guideline [8]
evil sought to be prevented (i.e., dissolution of the marriage) did not in the enumeration as it was already earlier quoted):
come about, hence, the lack of participation of the State was cured.
"(1) The burden of proof to show the nullity of the marriage belongs to
Not so. The task of protecting marriage as an inviolable social
the plaintiff. Any doubt should be resolved in favor of the existence
institution requires vigilant and zealous participation and not
and continuation of the marriage and against its dissolution and nullity.
mere pro-forma compliance. The protection of marriage as a sacred
This is rooted in the fact that both our Constitution and our laws
institution requires not just the defense of a true and genuine union but
cherish the validity of marriage and unity of the family. Thus, our
the exposure of an invalid one as well. This is made clear by the
Constitution devotes an entire Article on the Family, recognizing it "as
following pronouncement:
the foundation of the nation." It decrees marriage as legally
"(8) The trial court must order the prosecuting attorney or fiscal and "inviolable," thereby protecting it from dissolution at the whim of the
the Solicitor General to appear as counsel for the state. No decision parties. Both the family and marriage are to be "protected" by the state.
shall be handed down unless the Solicitor General issues a The Family Code echoes this constitutional edict on marriage and the
certification, which will be quoted in the decision,17 briefly stating family and emphasizes their permanence, inviolability and solidarity.
therein his reasons for his agreement or opposition as the case may be,
"(2) The root cause of the psychological incapacity must be: a)
to the petition. The Solicitor-General shall discharge the equivalent
medically or clinically identified, b) alleged in the complaint, c)
function of the defensor vinculi contemplated under Canon 1095
sufficiently proven by experts and d) clearly explained in the decision.
(italics ours)."18
Article 36 of the Family Code requires that the incapacity must be
The records are bereft of any evidence that the State participated in the psychological — not physical, although its manifestations and/or
prosecution of the case not just at the trial level but on appeal with the symptoms may be physical. The evidence must convince the court that
Court of Appeals as well. Other than the "manifestation" filed with the the parties, or one of them, was mentally or psychically (sic) ill to such
trial court on November 16, 1994, the State did not file any pleading, an extent that the person could not have known the obligations he was
motion or position paper, at any stage of the proceedings. assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so
In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we
as not to limit the application of the provision under the principle
upheld the validity of the marriage, we nevertheless characterized the
of ejusdem generis, nevertheless such root cause must be identified as
decision of the trial court as "prematurely rendered" since the
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 In May 2006, Presbitero’s daughter, Ma. Theresa P. Yulo (Yulo), also
engaged respondent’s services to handle the registration of her 18.85-
NATIVIDAD P. NAVARRO and HILDA S.
hectare lot located in Nasud-ong, Caradio-an, Himamaylan, Negros.
PRESBITERO, Complainants,
Yulo convinced her sister, Navarro, to finance the expenses for the
vs.
registration of the property. Respondent undertook to register the
ATTY. IVAN M. SOLIDUM, JR., Respondent.
property in consideration of 30% of the value of the property once it is
DECISION registered. Respondent obtained ₱200,000 from Navarro for the
registration expenses. Navarro later learned that the registration decree
PER CURIAM: over the property was already issued in the name of one Teodoro Yulo.
This case originated from a complaint for disbarment, dated 26 May Navarro alleged that she would not have spent for the registration of
2008, filed by Natividad P. Navarro (Navarro) and Hilda S. Presbitero the property if respondent only apprised her of the real situation of the
(Presbitero) against Atty. Ivan M. Solidum, Jr. (respondent) before the property.
Integrated Bar of the Philippines Commission on Bar Discipline (IBP- On 25 May 2006, respondent obtained a loan of ₱1,000,000 from
CBD). Navarro to finance his sugar trading business. Respondent and Navarro
From the Report, dated 1July 2009, of the IBP-CBD, we gathered the executed a Memorandum of Agreement (MOA) and agreed that the
following facts of the case: 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
On 4 April 2006, respondent signed a retainer agreement with mortgage over a property located in Barangay Alijis, Bacolod City,
Presbitero to follow up the release of the payment for the latter’s 2.7- covered by Transfer Certificate of Title No. 304688. They also agreed
hectare property located in Bacolod which was the subject of a that respondent shall issue postdated checks to cover the principal
Voluntary Offer to Sell (VOS) to the Department of Agrarian Reform amount of the loan as well as the interest thereon. Respondent
(DAR). The agreement also included the payment of the debts of delivered the checks to Navarro, drawn against an account in
Presbitero’s late husband to the Philippine National Bank (PNB), the Metrobank, Bacolod City Branch, and signed them in the presence of
sale of the retained areas of the property, and the collection of the Navarro.
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 In June 2006, respondent obtained an additional loan of ₱1,000,000
mortgaged by Presbitero and her late husband to PNB for ₱1,200,000. from Navarro, covered by a second MOA with the same terms and
Presbitero alleged that PNB’s claim had already prescribed, and she conditions as the first MOA. Respondent sent Navarro, through a
engaged the services of respondent to represent her in the matter. messenger, postdated checks drawn against an account in Bank of
Respondent proposed the filing of a case for quieting of title against Commerce, Bacolod City Branch. Respondent likewise discussed with
PNB. Respondent and Presbitero agreed to an attorney’s fee of 10% of Navarro about securing a "Tolling Agreement" with Victorias Milling
the proceeds from the VOS or the sale of the property, with the Company, Inc. but no agreement was signed.
expenses to be advanced by Presbitero but deductible from At the same time, respondent obtained a loan of ₱1,000,000 from
respondent’s fees. Respondent received ₱50,000 from Presbitero, Presbitero covered by a third MOA, except that the real estate
supposedly for the expenses of the case, but nothing came out of it. mortgage was over a 263-square-meter property located in Barangay
Taculing, Bacolod City. Respondent sent Presbitero postdated checks Respondent, for his defense, alleged that he was engaged in sugar and
drawn against an account in Metrobank, Bacolod City Branch. realty business and that it was Yulo who convinced Presbitero and
Navarro to extend him loans. Yulo also assured him that Presbitero
Presbitero was dissatisfied with the value of the 263-square-meter
would help him with the refining of raw sugar through Victorias
property mortgaged under the third MOA, and respondent promised to
Milling Company, Inc. Respondent alleged that Navarro fixed the
execute a real estate mortgage over a 1,000-square-meter parcel of
interest rate and he agreed because he needed the money. He alleged
land adjacent to the 4,000-square-meter property he mortgaged to
that their business transactions were secured by real estate mortgages
Navarro.
and covered by postdated checks. Respondent denied that the property
However, respondent did not execute a deed for the additional he mortgaged to Presbitero was less than the value of the loan. He also
security. denied that he sold the property because the sale was actually
rescinded. Respondent claimed that the property he mortgaged to
Respondent paid the loan interest for the first few months. He was able Navarro was valuable and it was actually worth more than ₱8,000,000.
to pay complainants a total of ₱900,000. Thereafter, he failed to pay
either the principal amount or the interest thereon. In September 2006, Respondent alleged that he was able to pay complainants when
the checks issued by respondent to complainants could no longer be business was good but he was unable to continue paying when the
negotiated because the accounts against which they were drawn were price of sugar went down and when the business with Victorias
already closed. When complainants called respondent’s attention, he Milling Company, Inc. did not push through because Presbitero did not
promised to pay the agreed interest for September and October 2006 help him. Respondent also denied that he was hiding from
but asked for a reduction of the interest to 7% for the succeeding complainants.
months.
Respondent further alleged that it was Yulo who owed him ₱530,000
In November 2006, respondent withdrew as counsel for Yulo. On the as interest due for September to December 2005. He denied making
other hand, Presbitero terminated the services of respondent as any false representations. He claimed that complainants were aware
counsel. Complainants then filed petitions for the judicial foreclosure that he could no longer open a current account and they were the ones
of the mortgages executed by respondent in their favor. Respondent who proposed that his wife and son issue the checks. Respondent
countered that the 10% monthly interest on the loan was usurious and further alleged that he already started with the titling of Yulo’s lot but
illegal. Complainants also filed cases for estafa and violation of Batas his services were terminated before it could be completed.
Pambansa Blg. 22 against respondent.
A supplemental complaint was filed charging respondent with
Complainants alleged that respondent induced them to grant him loans accepting cases while under suspension. In response, respondent
by offering very high interest rates. He also prepared and signed the alleged that he accepted Presbitero’s case in February 2006 and
checks which turned out to be drawn against his son’s accounts. learned of his suspension only in May 2006.
Complainants further alleged that respondent deceived them regarding
After conducting a hearing and considering the position papers
the identity and value of the property he mortgaged because he showed
submitted by the parties, the IBP-CBD found that respondent violated
them a different property from that which he owned. Presbitero further
the Code of Professional Responsibility.
alleged that respondent mortgaged his 263-square-meter property to
her for ₱1,000,000 but he later sold it for only ₱150,000.
The IBP-CBD found that respondent borrowed ₱2,000,000 from (3) misrepresenting to Presbitero the true value of the 263-square-
Navarro and ₱1,000,000 from Presbitero which he failed to pay in meter lot he mortgaged to her;
accordance with the MOAs he executed. The IBP-CBD found that
(4) conspiring with Yulo to obtain the loans from complainants;
based on the documents presented by the parties, respondent did not
act in good faith in obtaining the loans. The IBP-CBD found that (5) agreeing or promising to pay 10% interest on his loans although he
respondent either promised or agreed to pay the very high interest rates knew that it was exorbitant; and
of the loans although he knew them to be exorbitant in accordance
with jurisprudence. Respondent likewise failed to deny that he misled (6) failing to pay his loans because the checks he issued were
Navarro and her husband regarding the identity of the property dishonored as the accounts were already closed.
mortgaged to them. Respondent also mortgaged a property to The IBP-CBD also found that respondent violated Canon 16 and Rule
Presbitero for ₱1,000,000 but documents showed that its value was 16.01 of the Code of Professional Responsibility when he failed to
only ₱300,000. Documents also showed that he sold that property for properly account for the various funds he received from complainants.
only ₱150,000. Respondent conspired with Yulo to secure loans by
promising her a 10% commission and later claimed that they agreed In addition, the IBP-CBD found that respondent violated Rule 16.04 of
that Yulo would "ride" on the loan by borrowing ₱300,000 from the the Code of Professional Responsibility which prohibits borrowing
amount he obtained from Navarro and Presbitero. Respondent could money from a client unless the client’s interest is fully protected or the
not explain how he lost all the money he borrowed in three months client is given independent advice.
except for his claim that the price of sugar went down. On the matter of practicing law while under suspension, the IBP-CBD
The IBP-CBD found that respondent misled Navarro and Presbitero found that the records were not clear whether the notice of suspension
regarding the issuance of the postdated checks, and there was nothing respondent received on 29 May 2006 was the report and
in the records that would show that he informed them that it would be recommendation of the IBP-CBD or the final decision of this Court.
his wife or son who would issue the checks. The IBP-CBD also found The IBP-CBD likewise found that there was insufficient evidence to
that respondent had not been transparent in liquidating the money he prove that respondent mishandled his cases.
received in connection with Presbitero’s VOS with DAR. He was also The IBP-CBD recommended that respondent be meted the penalty of
negligent in his accounting regarding the registration of Yulo’s disbarment.
property which was financed by Navarro.
In Resolution No. XIX-2011-267 dated 14 May 2011, the IBP Board
The IBP-CBD found that respondent was guilty of violating Rule 1.01 of Governors adopted and approved the recommendation of the IBP-
of the Code of Professional Responsibility for committing the CBD with modification by reducing the recommended penalty from
following acts: disbarment to suspension from the practice of law for two years. The
(1) signing drawn checks against the account of his son as if they were IBP Board of Governors likewise ordered respondent to return the
from his own account; amount of his unpaid obligation to complainants.
(2) misrepresenting to Navarro the identity of the lot he mortgaged to Complainants filed a motion for reconsideration, praying that the
her; penalty of disbarment be instead imposed upon respondent.
The only issue in this case is whether respondent violated the Code of duties.1 A lawyer may be disciplined for misconduct committed either
Professional Responsibility. in his professional or private capacity.2 The test is whether his conduct
shows him to be wanting in moral character, honesty, probity, and
The records show that respondent violated at least four provisions of
good demeanor, or whether it renders him unworthy to continue as an
the Code of Professional Responsibility.
officer of the court.3
Rule 1.01 of the Code of Professional Responsibility provides:
In this case, the loan agreements with Navarro were done in
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral respondent’s private capacity. Although Navarro financed the
or deceitful conduct. registration of Yulo’s lot, respondent and Navarro had no lawyer-client
relationship. However, respondent was Presbitero’s counsel at the time
With respect to his client, Presbitero, it was established that respondent she granted him a loan. It was established that respondent misled
agreed to pay a high interest rate on the loan he obtained from her. He Presbitero on the value of the property he mortgaged as a collateral for
drafted the MOA. Yet, when he could no longer pay his loan, he his loan from her. To appease Presbitero, respondent even made a
sought to nullify the same MOA he drafted on the ground that the Deed of Undertaking that he would give her another 1,000-square-
interest rate was unconscionable. It was also established that meter lot as additional collateral but he failed to do so.
respondent mortgaged a 263-square-meter property to Presbitero for
₱1,000,000 but he later sold the property for only ₱150,000, showing Clearly, respondent is guilty of engaging in dishonest and deceitful
that he deceived his client as to the real value of the mortgaged conduct, both in his professional capacity with respect to his client,
property. Respondent’s allegation that the sale was eventually Presbitero, and in his private capacity with respect to complainant
rescinded did not distract from the fact that he did not apprise Navarro. Both Presbitero and Navarro allowed respondent to draft the
Presbitero as to the real value of the property. terms of the loan agreements. Respondent drafted the MOAs knowing
that the interest rates were exorbitant. Later, using his knowledge of
Respondent failed to refute that the checks he issued to his client the law, he assailed the validity of the same MOAs he prepared. He
Presbitero and to Navarro belonged to his son, Ivan Garcia Solidum III issued checks that were drawn from his son’s account whose name
whose name is similar to his name. He only claimed that complainants was similar to his without informing complainants. Further, there is
knew that he could no longer open a current bank account, and that nothing in the records that will show that respondent paid or undertook
they even suggested that his wife or son issue the checks for him. to pay the loans he obtained from complainants.
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, Canon 16 and Rule 16.01 of the Code of Professional Responsibility
respondent signed in the presence of Navarro the first batch of checks provide:
he issued to Navarro. Respondent sent the second batch of checks to
CANON 16. - A LAWYER SHALL HOLD IN TRUST ALL
Navarro and the third batch of checks to Presbitero through a
MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY
messenger, and complainants believed that the checks belonged to
COME INTO HIS POSSESSION.
accounts in respondent’s name.
Rule 16.01 – A lawyer shall account for all money or property
It is clear that respondent violated Rule 1.01 of the Code of
collected or received for or from the client.
Professional Responsibility. We have ruled that conduct, as used in the
Rule, is not confined to the performance of a lawyer’s professional
The fiduciary nature of the relationship between the counsel and his except, when in the interest of justice, he has to advance necessary
client imposes on the lawyer the duty to account for the money or expenses in a legal matter he is handling for the client.
property collected or received for or from his client.4 We agree with
Here, respondent does not deny that he borrowed ₱1,000,000 from his
the IBP-CBD that respondent failed to fulfill this duty. In this case, the
client Presbitero. At the time he secured the loan, respondent was
IBP-CBD pointed out that respondent received various amounts from
already the retained counsel of Presbitero.
complainants but he could not account for all of them.
While respondent’s loan from Presbitero was secured by a MOA,
Navarro, who financed the registration of Yulo’s 18.85-hectare lot,
postdated checks and real estate mortgage, it turned out that
claimed that respondent received ₱265,000 from her. Respondent
respondent misrepresented the value of the property he mortgaged and
countered that ₱105,000 was paid for real estate taxes but he could not
that the checks he issued were not drawn from his account but from
present any receipt to prove his claim. Respondent also claimed that he
that of his son. Respondent eventually questioned the terms of the
paid ₱70,000 to the surveyor but the receipt was only for ₱15,000.
MOA that he himself prepared on the ground that the interest rate
Respondent claimed that he paid ₱50,000 for filing fee, publication
imposed on his loan was unconscionable. Finally, the checks issued by
fee, and other expenses but again, he could not substantiate his claims
respondent to Presbitero were dishonored because the accounts were
with any receipt. As pointed out by the IBP-CBD, respondent had been
already closed. The interest of his client, Presbitero, as lender in this
less than diligent in accounting for the funds he received from Navarro
case, was not fully protected. Respondent violated Rule 16.04 of the
for the registration of Yulo’s property.
Code of Professional Responsibility, which presumes that the client is
Unfortunately, the records are not clear whether respondent rendered disadvantaged by the lawyer’s ability to use all the legal maneuverings
an accounting to Yulo who had since passed away. 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
As regards Presbitero, it was established during the clarificatory
trust and confidence reposed in him by his client.
hearing that respondent received ₱50,000 from Presbitero. As the IBP-
CBD pointed out, the records do not show how respondent spent the We modify the recommendation of the IBP Board of Governors
funds because he was not transparent in liquidating the money he imposing on respondent the penalty of suspension from the practice of
received from Presbitero. 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
Clearly, respondent had been negligent in properly accounting for the
respondent the penalty of disbarment. Respondent failed to live up to
money he received from his client, Presbitero.1âwphi1 Indeed, his
the high standard of morality, honesty, integrity, and fair dealing
failure to return the excess money in his possession gives rise to the
required of him as a member of the legal profession.7 Instead,
presumption that he has misappropriated it for his own use to the
respondent employed his knowledge and skill of the law and took
prejudice of, and in violation of the trust reposed in him by, the client.5
advantage of his client to secure undue gains for himself8 that warrants
Rule 16.04 of the Code of Professional Responsibility provides: his removal from the practice of law. Likewise, we cannot sustain the
IBP Board of Governors’ recommendation ordering respondent to
Rule 16.04. - A lawyer shall not borrow money from his client unless return his unpaid obligation to complainants, except for advances for
the client’s interests are fully protected by the nature of the case or by the expenses he received from his client, Presbitero, that were not
independent advice. Neither shall a lawyer lend money to a client 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 foreclosure.3chanrobleslaw
A.C. No. 11078, July 19, 2016
In August 2013, Verlita and Raymond called up the respondent, and
VERLITA V. MERCULLO AND RAYMOND expressed their intention to redeem the property by paying the
VEDANO, Complainants, v. ATTY. MARIE FRANCES E. redemption price. The latter agreed and scheduled an appointment with
RAMON, Respondent. them on August 30, 2013.
DECISION On August 30, 2013, the respondent arrived at the designated meeting
BERSAMIN, J.: 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
This case concerns the complaint for the disbarment of Atty. Marie their mother's property. After the respondent had oriented them on the
Frances E. Ramon for violating Rule 1.01, Canon 1 of the Code of procedure for redemption, the complainants handed P350,000.00 to the
Professional Responsibility and the Lawyer's Oath for deceiving the respondent, who signed an acknowledgment receipt.4 The respondent
complainants in order to obtain the substantial amount of P350,000.00 issued two acknowledgment receipts for the redemption price and for
on the pretext of having the foreclosed asset of the latter's mother litigation expenses,5 presenting to the complainants her NHMFC
redeemed. identification card. Before leaving them, she promised to inform them
Antecedents as soon as the documents for redemption were ready for their mother's
signature.6chanrobleslaw
In the period from 2002 to 2011, the National Home Mortgage Finance On September 4, 2013, the respondent met with Verlita and handed a
Corporation (NHMFC) sent several demand letters to Carmelite T. letter7 that she had signed, along with the special power of attorney
Vedaño1 regarding her unpaid obligations secured by the mortgage (SPA) for Carmelita's signature.8 The letter reads:
covering her residential property in Novaliches, Caloocan City.2 To
avoid the foreclosure of the mortgage, Carmelita authorized her chanRoblesvirtualLawlibrary
children, Verlita Mercullo and Raymond Vedaño (complainants
herein), to inquire from the NHMFC about the status of the Office of the Clerk of Court and Ex Officio Sheriff
obligations. Verlita and Raymond learned that their mother's arrears Regional Trial Court
had amounted to P350,000.00, and that the matter of the mortgage was Caloocan City
under the charge of respondent Atty. Ramon, but who was not around
at that time. Re: Redemption of the property covered by EJF No. 7484-2013
On June 20, 2012, Carmelita received a letter from the sheriff of the Dear Arty. Dabalos,
Regional Trial Court (RTC) in Caloocan City, stating that her property
would be put up for auction in July 2013. Verlita and Raymond thus Please assist Ms. Carmelita Vedano, through her Attorney-in-Fact in
went to the NHMFC to see the respondent, who advised them about redeeming the property covered by EJF No. 7484-2013. Please provide
their right to redeem the property within one year from the the necessary computation as to the full redemption amount in order
for Ms. Vedano to redeem the same.
The respondent did not submit her answer when required to do so. She
Thank you. Truly yours, also did not attend the mandatory conference set by the IBP despite
notice. Hence, the investigation proceeded ex parte.13chanrobleslaw
(Sgd.)
Atty. Marie Frances E. Ramon 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
Verlita and Raymond went to the NHMFC on September 9, 2013 to
deceitful conduct, and recommended her suspension from the practice
follow up on the redemption, but discovered that the respondent had
of law for two years, and her return to the complainants of
already ceased to be connected with the NHMFC. On September 20,
P350,000.00. with legal interest from December 2, 2013.
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
The IBP Board of Governors adopted Commissioner Adriano's
that the redemption was under process, and that the certificate of
recommendation as stated in its Resolution No. XXI-2014-929,15viz.:
redemption would be issued in two to three weeks time.9chanrobleslaw
chanRoblesvirtualLawlibrary
After communicating through text messages with the respondent,
Verlita and Raymond finally went to see the Clerk of Court of the RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
Regional Trial Court in Caloocan City On November 27, 2013 to AND APPROVED, the Report and Recommendation of the
inquire on the status of the redemption. There, they discovered that the Investigating Commissioner in the above-entitled case, herein made
respondent had not deposited the redemption price and had not filed part of this Resolution as Annex "A", and finding the recommendation
the letter of intent for redeeming the property.10chanrobleslaw to be fully supported by the evidence on record and applicable laws,
and for violation of Rule 1.01 of the Code of Professional
On December 5, 2013, Verlita and Raymond again went to Branch 145 Responsibility, Atty. Marie Frances E. Ramon is
of the Regional Trial Court in Makati City where the respondent had a hereby SUSPENDED from the practice of law for two (2) years
hearing, and handed to her their demand letter requiring her to return and Ordered to Return the amount of Three Hundred Fifty
the amount she had received for the redemption.11 She acknowledged Thousand (P350,000.00) Pesos to Complainant.
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 Ruling of the Court
hearings in Branch 145.12chanrobleslaw
With their attempts to reach the respondent being in vain, Verlita and The Court declares the respondent guilty of dishonesty and deceit.
Raymond brought their disbarment complaint in the Integrated Bar of
the Philippines (IBP). 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
Findings and Recommendation of the IBP 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 chanRoblesvirtualLawlibrary
precedent to his admission to the Bar, but are also essential for his
CANON 1 — A lawyer shall uphold the constitution, obey the laws of
continued membership in the Law Profession.17 Any conduct
the land and promote respect for law and for legal processes.
unbecoming of a lawyer constitutes a violation of his oath.
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral,
The respondent certainly transgressed the Lawyer's Oath by receiving
or deceitful conduct.
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 Evil intent was not essential in order to bring the unlawful act or
because she had worked in the NHFMC. She did not inform them soon omission of the respondent within the coverage of Rule 1.01 of
enough, however, that she had meanwhile ceased to be connected with the Code of Professional Responsibility20 The Code exacted from her
the agency. It was her duty to have so informed them. She further not only a firm respect for the law and legal processes but also the
misled them about her ability to realize the redemption by falsely utmost degree of fidelity and good faith in dealing with clients and the
informing them about having started the redemption process. She moneys entrusted by them pursuant to their fiduciary
concealed from them the real story that she had not even initiated the relationship.21chanrobleslaw
redemption proceedings that she had assured them she would do.
Everything she did was dishonest and deceitful in order to have them Yet another dereliction of the respondent was her wanton disregard of
part with the substantial sum of P350,000.00. She took advantage of the several notices sent to her by the IBP in this case. Such disregard
the complainants who had reposed their full trust and confidence in her could only be wrong because it reflected her undisguised contempt of
ability to perform the task by virtue of her being a lawyer. Surely, the the proceedings of the IBP, a body that the Court has invested with the
totality of her actuations inevitably eroded public trust in the Legal authority to investigate the disbarment complaint against her. She thus
Profession. exhibited her irresponsibility as well as her utter disrespect for the
Court and the rest of the Judiciary. It cannot be understated that a
As a lawyer, the respondent was proscribed from engaging in lawyer in her shoes should comply with the orders of the Court and of
unlawful, dishonest, immoral or deceitful conduct in her dealings with the Court's duly constituted authorities, like the IBP, the office that the
others, especially clients whom she should serve with competence and Court has particularly tasked to carry out the specific function of
diligence.18 Her duty required her to maintain fealty to them, binding investigating attorney misconduct.22chanrobleslaw
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 The respondent deserves severe chastisement and appropriate
neglect and dishonesty attending her dealings with the complainants. 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 respondent's conduct patently breached Rule 1.01, Canon 1 of the amount of P350,000.00 to the complainants. The recommended
the Code of Professional Responsibility, which provides: 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.
2. Whether respondent violated the rule against unlawful solicitation, On the third charge of gross immorality, complainant accused
and respondent of committing two counts of bigamy for having married
two other women while his first marriage was subsisting. He submitted
3. Whether respondent is guilty of gross immoral conduct for having a Certification dated 13 July 2005 issued by the Office of the Civil
married thrice.6 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 On 09 January 2006, complainant filed a Motion to Admit Copies of 3
Dasmarinas, Cavite; the second time on 28 September 1987 with Ma. Marriage Contracts.21 To the said Motion, he attached the certified true
Rowena Garcia Piñon in the City of Manila; and the third on 07 copies of the Marriage Contracts referred to in the Certification issued
September 1989 with Mary Jane Elgincolin Paraiso in Ermita, by the NSO.22 The appended Marriage Contracts matched the dates,
Manila.13 places and names of the contracting parties indicated in the earlier
submitted NSO Certification of the three marriages entered into by
Respondent’s Defense
respondent. The first marriage contract submitted was a marriage that
In his defense, respondent denied the charges against him. He asserted took place between respondent and Pilar M. Lozano in Dasmarinas,
that complainant was not an employee of his law firm – Tabalingcos Cavite, on 15 July 1980.23 The second marriage contract was between
and Associates Law Office14 – but of Jesi and Jane Management, Inc., respondent and Ma. Rowena G. Piñon, and it took place at the
where the former is a major stockholder.15 Respondent alleged that Metropolitan Trial Court Compound of Manila on 28 September
complainant was unprofessional and incompetent in performing his job 1987.24 The third Marriage Contract referred to a marriage between
as a financial consultant, resulting in the latter’s dismissal of many respondent and Mary Jane E. Paraiso, and it took place on 7 September
rehabilitation plans they presented in their court cases.16 Respondent 1989 in Ermita, Manila. In the second and third Marriage Contracts,
also alleged that there was no verbal agreement between them respondent was described as single under the entry for civil status.
regarding the payment of fees and the sharing of professional fees paid
On 16 January 2006, respondent submitted his Opposition to the
by his clients. He proffered documents showing that the salary of
Motion to Admit filed by complainant, claiming that the document
complainant had been paid.17
was not marked during the mandatory conference or submitted during
As to the charge of unlawful solicitation, respondent denied the hearing of the case.25 Thus, respondent was supposedly deprived of
committing any. He contended that his law firm had an agreement with the opportunity to controvert those documents.26 He disclosed that
Jesi and Jane Management, Inc., whereby the firm would handle the criminal cases for bigamy were filed against him by the complainant
legal aspect of the corporate rehabilitation case; and that the latter before the Office of the City Prosecutor of Manila. Respondent further
would attend to the financial aspect of the case’ such as the preparation informed the Commission that he had filed a Petition to Declare Null
of the rehabilitation plans to be presented in court. To support this and Void the Marriage Contract with Rowena Piñon at the Regional
contention, respondent attached to his Position Paper a Joint Venture Trial Court (RTC) of Biñan, Laguna, where it was docketed as Civil
Agreement dated 10 December 2005 entered into by Tabalingcos and Case No. B-3270.27 He also filed another Petition for Declaration of
Associates Law Offices and Jesi and Jane Management, Inc.;18 and an Nullity of Marriage Contract with Pilar Lozano at the RTC-Calamba,
Affidavit executed by Leoncio Balena, Vice-President for Operations where it was docketed as Civil Case No. B-3271.28 In both petitions, he
of the said company.19 claimed that he had recently discovered that there were Marriage
Contracts in the records of the NSO bearing his name and allegedly
On the charge of gross immorality, respondent assailed the Affidavit executed with Rowena Piñon and Pilar Lozano on different occasions.
submitted by William Genesis, a dismissed messenger of Jesi and Jane He prayed for their annulment, because they were purportedly null and
Management, Inc., as having no probative value, since it had been void.
retracted by the affiant himself.20 Respondent did not specifically
address the allegations regarding his alleged bigamous marriages with On 17 September 2007, in view of its reorganization, the Commission
two other women. scheduled a clarificatory hearing on 20 November 2007.29 While
complainant manifested to the Commission that he would not attend Commission found respondent to have violated the rule on the
the hearing,30 respondent manifested his willingness to attend and solicitation of client for having advertised his legal services and
moved for the suspension of the resolution of the administrative case unlawfully solicited cases. It recommended that he be reprimanded for
against the latter. Respondent cited two Petitions he had filed with the the violation. It failed, though, to point out exactly the specific
RTC, Laguna, seeking the nullification of the Marriage Contracts he provision he violated.39
discovered to be bearing his name.31
As for the third charge, the Commission found respondent to be guilty
On 10 November 2007, complainant submitted to the Commission of gross immorality for violating Rules 1.01 and 7.03 of the Code of
duplicate original copies of two (2) Informations filed with the RTC of Professional Responsibility and Section 27 of Rule 138 of the Rules of
Manila against respondent, entitled "People of the Philippines vs. Atty. Court. It found that complainant was able to prove through
Bede S. Tabalingcos."32 The first criminal case, docketed as Criminal documentary evidence that respondent committed bigamy twice by
Case No. 07-257125, was for bigamy for the marriage contracted by marrying two other women while the latter’s first marriage was
respondent with Ma. Rowena Garcia Piñon while his marriage with subsisting.40 Due to the gravity of the acts of respondent, the
Pilar Lozano was still valid.33 The other one, docketed as Criminal Commission recommended that he be disbarred, and that his name be
Case No. 07-257126, charged respondent with having committed stricken off the roll of attorneys.41
bigamy for contracting marriage with Mary Jane Elgincolin Paraiso
On 15 April 2008, the IBP Board of Governors, through its Resolution
while his marriage with Pilar Lozano was still subsisting.34 Each of the
No. XVIII-2008-154, adopted and approved the Report and
Informations recommended bail in the amount of P24,000 for his
Recommendation of the Investigating Commissioner.42 On 01 August
provisional liberty as accused in the criminal cases.35
2008, respondent filed a Motion for Reconsideration, arguing that the
On 20 November 2007, only respondent attended the clarificatory recommendation to disbar him was premature. He contends that the
hearing. In the same proceeding, the Commission denied his Motion to Commission should have suspended the disbarment proceedings
suspend the proceedings pending the outcome of the petitions for pending the resolution of the separate cases he had filed for the
nullification he had filed with the RTC–Laguna. Thus, the annulment of the marriage contracts bearing his name as having
Commission resolved that the administrative case against him be entered into those contracts with other women. He further contends
submitted for resolution.36 that the evidence proffered by complainant to establish that the latter
committed bigamy was not substantial to merit the punishment of
IBP’s Report and Recommendation
disbarment. Thus, respondent moved for the reconsideration of the
On 27 February 2008, the Commission promulgated its Report and resolution to disbar him and likewise moved to archive the
administrative proceedings pending the outcome of the Petitions he
Recommendation addressing the specific charges against separately filed with the RTC of Laguna for the annulment of
respondent.37 The first charge, for dishonesty for the nonpayment of Marriage Contracts.43
certain shares in the fees, was dismissed for lack of merit. The
Commission ruled that the charge should have been filed with the On 26 June 2011, the IBP Board of Governors denied the Motions for
proper courts since it was only empowered to determine respondent’s Reconsideration and affirmed their Resolution dated 15 April 2008
administrative liability. On this matter, complainant failed to prove recommending respondent’s disbarment.44
dishonesty on the part of respondent.38 On the second charge, the
The Court’s Ruling
The Court affirms the recommendations of the IBP. A review of the records reveals that respondent indeed used the
business entities mentioned in the report to solicit clients and to
First Charge:
advertise his legal services, purporting to be specialized in corporate
Dishonesty for nonpayment of share in the fees rehabilitation cases. Based on the facts of the case, he violated Rule
2.0347 of the Code, which prohibits lawyers from soliciting cases for
While we affirm the IBP’s dismissal of the first charge against the purpose of profit.
respondent, we do not concur with the rationale behind it.
A lawyer is not prohibited from engaging in business or other lawful
The first charge of complainant against respondent for the nonpayment occupation. Impropriety arises, though, when the business is of such a
of the former’s share in the fees, if proven to be true is based on an nature or is conducted in such a manner as to be inconsistent with the
agreement that is violative of Rule 9.0245 of the Code of Professional lawyer’s duties as a member of the bar. This inconsistency arises when
Responsibility. A lawyer is proscribed by the Code to divide or agree the business is one that can readily lend itself to the procurement of
to divide the fees for legal services rendered with a person not licensed professional employment for the lawyer; or that can be used as a cloak
to practice law. Based on the allegations, respondent had agreed to for indirect solicitation on the lawyer’s behalf; or is of a nature that, if
share with complainant the legal fees paid by clients that complainant handled by a lawyer, would be regarded as the practice of law.48
solicited for the respondent. Complainant, however, failed to proffer
convincing evidence to prove the existence of that agreement. It is clear from the documentary evidence submitted by complainant
that Jesi & Jane Management, Inc., which purports to be a financial
We ruled in Tan Tek Beng v. David46 that an agreement between a and legal consultant, was indeed a vehicle used by respondent as a
lawyer and a layperson to share the fees collected from clients secured means to procure professional employment; specifically for corporate
by the layperson is null and void, and that the lawyer involved may be rehabilitation cases. Annex "C"49 of the Complaint is a letterhead of
disciplined for unethical conduct. Considering that complainant’s Jesi & Jane
allegations in this case had not been proven, the IBP correctly
dismissed the charge against respondent on this matter. Management, Inc., which proposed an agreement for the engagement
of legal services. The letter clearly states that, should the prospective
Second Charge: client agree to the proposed fees, respondent would render legal
Unlawful solicitation of clients services related to the former’s loan obligation with a bank. This
circumvention is considered objectionable and violates the Code,
Complainant charged respondent with unlawfully soliciting clients and because the letter is signed by respondent as President of Jesi & Jane
advertising legal services through various business entities. Management, Inc., and not as partner or associate of a law firm.
Complainant submitted documentary evidence to prove that Jesi &
Jane Management Inc. and Christmel Business Link, Inc. were owned Rule 15.0850 of the Code mandates that the lawyer is mandated to
and used as fronts by respondent to advertise the latter’s legal services inform the client whether the former is acting as a lawyer or in another
and to solicit clients. In its Report, the IBP established the truth of capacity. This duty is a must in those occupations related to the
these allegations and ruled that respondent had violated the rule on the practice of law. The reason is that certain ethical considerations
solicitation of clients, but it failed to point out the specific provision governing the attorney-client relationship may be operative in one and
that was breached. 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 the case against the respondent must be established by convincing and
prevalence of this practice by respondent, we affirm the satisfactory proof.54 In this case, complainant submitted NSO-certified
recommendation to reprimand the latter for violating Rules 2.03 and true copies to prove that respondent entered into two marriages while
15.08 of the Code. the latter’s first marriage was still subsisting. While respondent denied
entering into the second and the third marriages, he resorted to vague
Third Charge:
assertions tantamount to a negative pregnant. He did not dispute the
Bigamy authenticity of the NSO documents, but denied that he contracted
those two other marriages. He submitted copies of the two Petitions he
The third charge that respondent committed bigamy twice is a serious had filed separately with the RTC of Laguna – one in Biñan and the
accusation. To substantiate this allegation, complainant submitted other in Calamba – to declare the second and the third Marriage
NSO-certified copies of the Marriage Contracts entered into by Contracts null and void.55
respondent with three (3) different women. The latter objected to the
introduction of these documents, claiming that they were submitted We find him guilty of gross immorality under the Code.
after the administrative case had been submitted for resolution, thus
We cannot give credence to the defense proffered by respondent. He
giving him no opportunity to controvert them.52 We are not persuaded
has not disputed the authenticity or impugned the genuineness of the
by his argument.
NSO-certified copies of the Marriage Contracts presented by
We have consistently held that a disbarment case is sui generis. Its complainant to prove the former’s marriages to two other women aside
focus is on the qualification and fitness of a lawyer to continue from his wife. For purposes of this disbarment proceeding, these
membership in the bar and not the procedural technicalities in filing Marriage Contracts bearing the name of respondent are competent and
the case. Thus, we explained in Garrido v. Garrido:53 convincing evidence proving that he committed bigamy, which renders
him unfit to continue as a member of the bar. The documents were
Laws dealing with double jeopardy or with procedure — such as the certified by the NSO, which is the official repository of civil registry
verification of pleadings and prejudicial questions, or in this case, records pertaining to the birth, marriage and death of a person. Having
prescription of offenses or the filing of affidavits of desistance by the been issued by a government agency, the NSO certification is
complainant — do not apply in the determination of a lawyer's accorded much evidentiary weight and carries with it a presumption of
qualifications and fitness for membership in the Bar. We have so ruled regularity. In this case, respondent has not presented any competent
in the past and we see no reason to depart from this ruling. First, evidence to rebut those documents.
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 According to the respondent, after the discovery of the second and the
to the public. The admission qualifications are also qualifications for third marriages, he filed civil actions to annul the Marriage Contracts.
the continued enjoyment of the privilege to practice law. Second, lack We perused the attached Petitions for Annulment and found that his
of qualifications or the violation of the standards for the practice of allegations therein treated the second and the third marriage contracts
law, like criminal cases, is a matter of public concern that the State as ordinary agreements, rather than as special contracts contemplated
may inquire into through this Court. under the then Civil Code provisions on marriage. He did not invoke
any grounds in the Civil Code provisions on marriage, prior to its
In disbarment proceedings, the burden of proof rests upon the amendment by the Family Code. Respondent’s regard for marriage
complainant.1âwphi1 For the court to exercise its disciplinary powers,
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 her husband, Atty. Paas, who treated him as their personal driver and
which he was not able to keep. messenger.
Almarvez added that he had been subjected by Judge Paas to the As further proof of Judge Paas' oppressive behavior towards him,
following incidents of oppression and abuse of authority: On July 28, Almarvez claimed that she ordered him to undergo a drug test per
2000, he was called by the Judge to her chambers where she berated Memorandum dated September 7, 2000,8 even if he had no history of
him as follows: "Sinungaling ka, ang dami mong alam, hindi ka drug abuse on a periodic or continuous basis as shown by the test
nagsasabi ng totoo sa akin, gago, tanga, pirmahan mo itong results of his examination.9
resignation letter, kung hindi kakasuhan kita ng estafa at
The Court treated respondent's Answer as a counter-complaint against
falsification;" the next day, the Judge, on seeing him, told him "Bakit
Judge Paas and docketed it as A.M. No. MTJ-01-1363.
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 The two administrative cases were consolidated and referred for
mo, pumasok ka pa dito, gago, kaya kita ipinasok dito dahil driver evaluation to the OCA, which assigned them to Executive Judge
kita." Vicente L. Yap of Pasay City RTC, Branch 114 for investigation.
Continuing, Almarvez claimed that on July 31, 2000, he reported the In a separate case for inhibition of Judge Paas in a criminal case, it was
foregoing incidents to Pasay City MeTC Executive Judge Maria revealed that Judge Paas' husband, private practitioner Atty. Paas, was
Cancino Erum who advised him to report the same to the Office of the using his wife's office as his office address in his law practice, in
Clerk of Court; and on August 1, 2000, he executed a sworn statement- support of which were submitted copies of a Notice of Appeal signed
complaint7 against Judge Paas and went to the Office of the Court by Atty. Paas, notices from Pasay City RTC Branch 109 and from the
Administrator (OCA) to file it, but he was advised to try to talk the Supreme Court with respect to the case of People vs. Louie Manabat,
matter over with her who then told him that they should forget all et al. (GR Nos. 140536-37) which indicated Atty. Paas' address to be
about it. Room 203, Hall of Justice, Pasay City,10 the office assigned to Pasay
City MeTC, Branch 44.
On the merits of the charges, Almarvez denied ever requesting for
money in exchange for the release of court orders and alleged that both Pursuant to Sec. 1 of Rule 139-B11 of the Rules of Court which allows
Hernandez and Macabasag executed their respective affidavits because the Supreme Court to motu proprio initiate proceedings for the
Judge Paas was a principal sponsor at their respective weddings; discipline of attorneys, this Court resolved to docket the matter as A.M.
Hernandez was in fact indebted to the Judge for helping him cover-up No. 01-12-02-SC and to consolidate it with A.M. OCA IPI No. 00-
the escape of a detainee under his charge; the court's mail matters were 956-P and AM No. MTJ-01-1363.
always sealed whenever he received them for mailing and he never
tampered with their contents; the alleged unmailed printed matter was In compliance with the December 4, 2001 Resolution12 of the Court en
actually posted on June 28, 2000, not on July 11, 2000, via ordinary banc, Judge and Atty. Paas submitted their January 16, 2002 Joint
instead of registered mail, because the money given to him for the Affidavit13 wherein they vehemently denied the charge that the latter
purpose was insufficient; and on the days when he was out of the was using Room 203 of the Pasay City Hall of Justice as his office
office, he was actually performing personal errands for the judge and 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 leave, discourtesy and insubordination. Given Almarvez'
when he lunches with or fetches her, or when he is a guest during unsatisfactory performance ratings for three rating periods covering
special occasions such as Christmas party and her birthday which are January to June 2000,21 July to December 2000,22 and January to April
celebrated therein; and Judge Paas would never consent nor tolerate 2001,23 however, the OCA recommended that he be duly penalized
the use of the court for any personal activities. Attached to the Joint for inefficiency in the performance of his official duties with One (1)
Affidavit were the separate sworn statements of Atty. Paas' law partner Month suspension without pay, instead of dismissal as warranted under
Atty. Herenio E. Martinez14 and secretary Nilda L. Gatdula15 attesting Memorandum Circular No. 12, s. 1994, his supervisor having failed to
that he is holding office at the above-said address in Escolta, and the observe the procedure thereunder for dropping of employees from the
Joint Affidavit of the Pasay City MeTC Branch 44 court rolls, which procedure is quoted at the later portion of this decision.
personnel16 attesting that Atty. Paas' visits to the court are neither
B. On the charges against Judge Paas:
routine nor daily occurrences, and he never used the court in the
practice of his profession. With respect to the complaint of Almarvez against Judge Paas, the
OCA, for lack of supporting evidence, recommended the dismissal of
On January 24, 2002, Judge Paas executed a Supplemental
the charges of maltreatment, harassment and verbal abuse. It found,
Affidavit17 wherein she admitted that Atty. Paas did use her office as
however, that Judge Paas "had used her administrative power of
his return address for notices and orders in Crim. Case Nos. 98-1197 to
supervision and control over court personnel for her personal pride,
98-1198, "People vs. Louie Manabat y Valencia and Raymond dela
prejudice and pettiness"24 when she issued her September 7, 2000
Cruz y Salita," (now docketed in this Court as G.R. Nos. 140536-37),
Memorandum ordering Alvarez to undergo a drug test after she had
lodged at the Pasay City RTC, Branch 109, but only to ensure and
already filed an administrative case against him. It thus concluded that,
facilitate delivery of those notices, but after the cases were terminated,
in all probability, the purpose of Judge Paas in ordering Almarvez to
all notices were sent to his office address in Escolta.
undergo a drug test was to fish for evidence to support the
By Resolution of February 12, 2002,18 the Court referred the matter to administrative case she had already filed against him.
the OCA for evaluation, report and recommendation.
Accordingly, the OCA recommended that Judge Paas be found guilty
After the completion of his investigation of A.M. OCA IPI No. 00- of simple misconduct in office, and be penalized with reprimand with
956-P and A.M. No. MTJ-01-1363, Judge Yap submitted his a warning that a repetition of the same or similar acts shall be dealt
Report/Recommendation dated February 28, 2002.19 with more severely.
On March 11, 2002, the OCA submitted its Report on A.M. No. 01- II. This Court's Findings:
12-02-SC dated March 1, 2002.20
A. On the charges against Almarvez:
I. OCA Findings and Recommendations
Indeed, this Court finds that there is no sufficient evidence to support
A. On the charges against Almarvez: the charge of violation of confidentiality of official
communication against Almarvez. The charge against Almarvez in
The OCA, for lack of evidence, recommended the dismissal of the
Judge Paas' complaint-affidavit which reads:
charges against Almarvez of exacting money from detainees, violating
confidentiality of official communication, absence without official
That said ALMARVEZ being in charge of the mails had divulged explanation that he was actually present in the morning but left in the
informations which is confidential in nature to party litigants in afternoon for the Supreme Court29 was not controverted.
advance of its authorized release date before the release of Court Order
On the charge of inefficiency, this Court concurs with the following
and Decision for consideration of a sum of money thus giving undue
findings of the OCA that he should be faulted therefor:
advantage or favor to the paying party detrimental to the due
administration of justice.25 The performance ratings of respondent Almarvez for three (3) rating
periods covering January to June 2000, July to December 2000 and
in fact lacks particularity. It is devoid of material details to enable
January to April 2001 evidently shows that he failed to perform his
Almarvez to intelligently meet the same.
official duties. The fact that respondent Almarvez never disputed the
As for the charges of neglect of duty, discourtesy and performance ratings given him is tantamount to an implied acceptance
insubordination which were echoed in the affidavits of court thereof pursuant to Sec. 5 Rule IX Book V of Executive Order No.
personnel, they are also too general to support a conviction and are 292, quoted as follows:
contrary to what is reflected in his performance rating that he
"Sec. 5. An employee who expresses dissatisfaction with the rating
cooperated willingly, even wholeheartedly, with his fellow employees.
given him may appeal through the established Grievance Procedure of
On the charge of violation of Rep. Act No. 3019 (Anti-Graft and the Department or Agency within fifteen (15) days after receipt of his
Corrupt Practices Act): Absent any evidence to support the charge, the copy of his performance rating. Failure to file an appeal within the
affiants jail officers who claimed to have witnessed Almarvez receive prescribed period shall be deemed a waiver of such right."
money from detention prisoners in exchange for the release of their
The performance ratings of respondent for the said periods are valid
Release Orders not having been presented, hence, their claim remains
grounds to drop him from the Rolls. However, considering that his
hearsay, Almarvez' categorical denial and counter-allegation that these
superior/supervisor failed to comply with the requirements set forth in
affiants executed their affidavits only out of fear of or favor to Judge
Memorandum Circular No. 12, Series of 1994 of the Civil Service
Paas gain light.
Commission, which is hereunder quoted, and that he was able to make
As for the charge that Almarvez would merely sign the logbook and up and cure his inefficiency after he was given the opportunity to
would thereafter leave the office, again Judge Paas failed to present the improve his performance in his detail to Branch 11, MeTC, Manila, as
affiant-Clerk of Court Atty. Pedro C. Doctolero, Jr. While she shown by his performance rating for the period April to June 2001
submitted in evidence a copy of her October 6, 2000 with a "very satisfactory" rating, dropping him from the roll will no
memorandum26 requiring Almarvez to explain why he was not in the longer be appropriate30 (Emphasis and italics supplied.)
office on September 8, 11, and 13, and October 5, 2000, despite his
Par. 2.2 of CSC Memorandum Circular No. 12, s. 1994 referred to in
affixing of his signature in the logbook on those dates indicating that
the above-quoted findings of the OCA reads:
he reported for work, Almarvez satisfactorily explained that on
September 8, 11, and 13, 2000, he submitted himself to drug testing as 2.2 Unsatisfactory or Poor Performance.
required by her in her September 7, 200027 memorandum, which
explanation is supported by the September 14, 2000 letter of Dr. (a) An official or employee who is given two (2) consecutive
Rosendo P. Saulog, Medical Specialist II of the Dangerous Drug unsatisfactory ratings may be dropped from the rolls after due notice.
Board.28 As to his whereabouts on October 5, 2000, Almarvez' Notice shall mean that the officer or employee concerned is informed
in writing of his unsatisfactory performance for a semester and is SC Administrative Circular No. 01-99, "Enhancing the Dignity of
sufficiently warned that a succeeding unsatisfactory performance shall Courts as Temples of Justice and Promoting Respect for their Officials
warrant his separation from the service. Such notice shall be given not and Employers" reads:
later than 30 days from the end of the semester and shall contain
As courts are temples of justice, their dignity and sanctity must, at all
sufficient information which shall enable the employee to prepare an
times be preserved and enhanced. In inspiring public respect for the
explanation. (Emphasis and italics supplied.)
justice system, court officials and employees must:
The suspension of Almarvez for One (1) Month without pay, as
1. In general: (a) avoid committing any act which would constitute
recommended by the OCA, is thus in order.
grounds for disciplinary action under, as the case may be, the Canons
B. On the charges against Judge Paas: of Judicial Ethics, Code of Judicial Conduct; and Section 46, Chapter
7, Subtitle A, Title I, Book V of the Administrative Code of 1987
Regarding the charges of abuse of authority and oppression against
(Executive Order No. 292); and (b) faithfully comply with the norms
Judge Paas, Almarvez failed to substantiate the same.
of conduct and perform the duties prescribed in the Code of Conduct
Judge Paas' order for Almarvez to undergo a drug test is not an and Ethical Standards for Public Officials and Employees (R.A. No.
unlawful order. Per Civil Service Commission Memorandum Circular 6713);
No. 34, s. 1997, public employees are required to undergo a drug test
2. Zealously guard the public trust character of their offices;
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 xxx xxx xxx
requirement to ensure the highest degree of productivity of the civil
6. Never use their offices as a residence or for any other purpose
service. However, considering that the order was issued after Judge
than for court or judicial functions. (Emphasis and italics supplied.)
Paas filed the administrative case against Almarvez, it elicits the
suspicion that it was only a fishing expedition against him. This is Canon 2 of the Code of Judicial Conduct provides that "A judge
conduct unbecoming of a member of the judiciary, for which Judge should avoid impropriety and the appearance of impropriety in all
Paas should be duly reprimanded. activities." Specifically, Rule 2.03 thereof provides that:
C. On the charges against Judge Paas and Atty. Paas: Rule 2.03. A judge shall not allow family, social, or other relationships
to influence judicial conduct or judgment. The prestige of judicial
By Judge Paas' own admission in her January 24, 2002 Supplemental
office shall not be used or lent to advance the private interests of
Affidavit,31 she was aware that her husband Atty. Paas was using her
others, nor convey or permit others to convey the impression that
office to receive court notices and orders in a case lodged in a Pasay
they are in a special position to influence the judge. (Emphasis
court. As the OCA puts it, "[w]hile the same appears to be innocuous,
supplied.)
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 SC Circular No. 3-92,33 dated August 31, 1992, of this Court reads:
given special treatment by other judges or court personnel."32
SUBJECT: PROHIBITION AGAINST USE OF HALLS OF
The following are instructive in the disposition of these charges JUSTICE FOR RESIDENTIAL OR COMMERCIAL PURPOSES
against the judge and her spouse, Atty. Paas:
All judges and court personnel are hereby reminded that the Halls of CANON 3 — A LAWYER IN MAKING KNOWN HIS LEGAL
Justice may be used only for purposes directly related to the SERVICES SHALL USE ONLY TRUE, HONEST, FAIR,
functioning and operation of the courts of justice, and may not be DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT
devoted to any other use, least of all as residential quarters of the OF FACTS.
judges or court personnel, or for carrying on therein any trade or
Rule 3.01. A lawyer shall not use or permit the use of any false,
profession.
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
Attention is drawn to A.M. No. RTJ-89-327 (Nellie Kelly Austria vs. statement or claim regarding his qualifications or legal services.
Judge Singuat Guerra), a case involving unauthorized and improper
CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND
use of the court's premises for dwelling purposes by respondent and
GOOD FAITH TO THE COURT.
his family, in which the Court, by Resolution dated October 17, 1991,
found respondent Judge guilty of irresponsible and improper conduct Rule 10.01 A lawyer shall not do any falsehood, nor consent to the
prejudicial to the efficient administration of justice and best interest of doing of any in Court; nor shall he mislead, or allow the Court to be
the service, and imposed on him the penalty of SEVERE CENSURE, misled by any artifice.
the Court declaring that such use of the court's premises inevitably
degrades the honor and dignity of the court in addition to exposing CANON 13 — A LAWYER SHALL RELY UPON THE MERITS OF
judicial records to danger of loss or damage. (emphasis supplied.) HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH
TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF
By allowing her husband to use the address of her court in pleadings INFLUENCING THE COURT.
before other courts, Judge Paas indeed "allowed [him] to ride on her
prestige for purposes of advancing his private interest, in violation of CANON 15 — A LAWYER SHALL OBSERVE CANDOR,
the Code of Judicial Conduct"34 and of the above-stated Supreme FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND
Court circulars, which violation is classified as a less serious charge TRANSACTIONS WITH HIS CLIENTS.
under the Rules of Court35 and is punishable under the same Rule.36 Rule 15.06. A lawyer shall not state or imply that he is able to
A judge's official conduct should indeed be free from the appearance influence any public official, tribunal or legislative body.
of impropriety; and his behavior not only in the performance of The need for relying on the merits of a lawyer's case, instead of
judicial duties, but also in his everyday life should be beyond banking on his relationship with a member of the bench which tends to
reproach. This is premised on the truism that a Judge's official life influence or gives the appearance of influencing the court, cannot be
cannot simply be detached or separated from his personal existence overemphasized. It is unprofessional and dishonorable, to say the least,
and that upon a Judge's attributes depend the public perception of the to misuse a public office to enhance a lawyer's prestige. Public
Judiciary.37 confidence in law and lawyers may be eroded by such reprehensible
On his part, Atty. Paas was guilty of using a fraudulent, misleading, and improper conduct.
and deceptive address that had no purpose other than to try to impress This Court does not subscribe to the proffered excuse that expediency
either the court in which his cases are lodged, or his client, that he has and a desire to ensure receipt of court orders and notices prompted
close ties to a member of the juiciary, in violation of the following Atty. Paas and Judge Paas to allow him to have his court notices sent
rules of the Code of Professional Responsibility: 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.] having received any reply, he filed the instant complaint.
ADRIANO E. DACANAY, Complainant, v. BAKER & We hold that Baker & McKenzie, being an alien law firm, cannot
MCKENZIE and JUAN G. COLLAS, JR., LUIS MA. practice law in the Philippines (Sec. 1, Rule 138, Rules of Court). As
GUERRERO, VICENTE A. TORRES, RAFAEL E. admitted by the respondents in their memorandum, Baker & McKenzie
EVANGELISTA, JR., ROMEO L. SALONGA, JOSE R. is a professional partnership organized in 1949 in Chicago, Illinois
SANDEJAS, LUCAS M. NUNAG, J. CLARO TESORO, with members and associates in 30 cities around the world.
NATIVIDAD B. KWAN and JOSE A. CURAMMENG, Respondents, aside from being members of the Philippine bar,
JR., Respondents. practising under the firm name of Guerrero & Torres, are members or
associates of Baker & Mckenzie.chanrobles law library
Adriano E. Dacanay for and in his own behalf.
As pointed out by the Solicitor General, respondents’ use of the firm
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office name Baker & McKenzie constitutes a representation that being
for Respondents. 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).
DECISION This is unethical because Baker & McKenzie is not authorized to
practice law here. (See Ruben E. Agpalo, Legal Ethics, 1983 Ed., p.
115.)
AQUINO, J.:
WHEREFORE, the respondents are enjoined from practising law
under the firm name Baker & McKenzie.
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 SO ORDERED.
lawyers from practising law under the name of Baker & McKenzie, a
law firm organized in Illinois. Teehankee (Acting C. J.), Makasiar, Abad Santos, Melencio-Herrera,
Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and
In a letter dated November 16, 1979 respondent Vicente A. Torres, Alampay, JJ., concur.
using the letterhead of Baker & McKenzie, which contains the names
of the ten lawyers, asked Rosie Clurman for the release of 87 shares of Plana, J., took no part.
Cathay Products International, Inc. to H. E. Gabriel, a client.
Fernando, C.J. and Concepcion Jr., on leave.
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
[G.R. No. 125440. January 31, 2000.] unwarranted benefit or advantage in the discharge of his official
functions by protecting and defending the interest of Lucio Tan and
GENERAL BANK AND TRUST COMPANY (GBTC); the Central Bank relative to (sic) verbatim adoption of the Lucio Tan
WORLDWIDE INSURANCE AND SURETY COMPANY Bid as the Liquidation Plan of GBTC under Monetary Board
(WORLDWIDE); MIDLAND INSURANCE CORPORATION Resolution No. 677, March 29, 1977. 1
(MIDLAND); and STANDARD INSURANCE CO., INC.
(STANDARD), Petitioners, v. THE OMBUDSMAN; OMB-GIO and charged respondent administratively with malfeasance in office,
RAUL E. TOTANES and ASSISTANT SOLICITOR GENERAL for his alleged —
MAGDANGAL M. DE LEON, Respondents.
. . . deliberate and adamant refusal to comply with his statutory duty to
DECISION 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,
GONZAGA-REYES, J.: March 29, 1977. 2
On April 07, 1977, the Central Bank of the Philippines and Arnulfo B. Petitioners point out that in Civil Case No. 0005, the first of the causes
Aurellano in his capacity as the Monetary Board of the Central Bank of actions therein as stated in Par. 14 (a)-(1) to (3) alleges
Liquidator of GBTC filed through the Office of the Solicitor General that:chanrob1es virtual 1aw library
(OSG) a Petition with the Court of First Instance of Manila, seeking
the court’s assistance in the liquidation of GBTC. The Court docketed (A) The Marcos-dominated Central Bank Closure of GBTC under MB
the said petition as Spec. Proc. No. 107812, entitled "Petition for Resolution, March 25, 1977;
Assistance in the Liquidation of GBTC" ;chanrobles.com.ph : red
(B) The LUCIO TAN’S (sic) takeover of GBTC under MB
On May 05, 1982, three minority stockholders of GBTC, namely, Resolution, March 29, 1977;
Worldwide, Midland and Standard through their counsel, ATTY.
ANGEL C. CRUZ, filed an intervention in the said case, praying for are illegal, fraudulent and arbitrary, made thru conspiracy with and
the annulment of the closure and liquidation of GBTC by the taking advantage of the close relationship between the LUCIO TAN
Monetary Board of the Central Bank as these were allegedly done Group and the deposed President and Wife, other CB officials, with
arbitrarily and in bad faith. Later, GBTC itself joined and adopted the the help and manipulation of then CB Governor Gregorio S. Licaros
intervention of its aforesaid three minority stockholders; and former PNB President Panfilo O. Domingo . . . 4
Assistant Solicitor General Ruben E. Agpalo, to whose Team the said The charge that respondent ASG de Leon espoused conflicting
case was assigned by Solicitor General Estelito P. Mendoza, re- interests rests on the contention of petitioners that said respondent’s
assigned the said case from Solicitor Juan C. Nabong to the herein act of defending the legality of the Central Bank closure of GBTC
respondent in view of Juan C. Nabong’s appointment as RTC Judge; amounts to defending the interest of Lucio Tan and the Central Bank.
5 Petitioners maintain that the position taken by the OSG represented
From that time on, all the pleadings, filed with the Liquidation Court by respondent ASG de Leon in Spec. Proc. No. 107812 is "against the
RTC of Manila, were signed by Assistant Solicitor General Ruben E. ‘interest of the Government of the Republic of the Philippines’ as
Agpalo and the herein respondent in behalf of the Office of the contained in the statement of ultimate facts set forth in Par. 14 (a)-(1)
Solicitor General (OSG). to (3) of EDSA-SDB Civil Case No. 0005, ANNEX "C." 6
What prompted petitioners to file a complaint against respondent ASG On December 16, 1992, counsel of petitioners wrote respondent ASG
de Leon with the Ombudsman is the alleged "inconsistent position" of de Leon that he inhibit himself from appearing in Spec. Proc. No.
107812 and to defend the interest of the Government of the Philippines case. The said PCGG case has nothing to do with Spec. Proc. No.
as against the interest of Lucio Tan in Civil Case No. 0005. 7 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
When respondent ASG de Leon for OSG continued to represent the GBTC Liquidator Arnulfo B. Aurellano of the Central Bank,
Central Bank in Spec. Proc. No. 107812, petitioners then filed the petitioners-appellants in the said CA G.R. CV No. 39938, are parties
complaint against respondent with the Office of the Ombudsman. in the said Sandiganbayan Civil Case No. 0005.
In dismissing the case, the Office of the Ombudsman held:chanrob1es With the Motion for Reconsideration of the Resolution having been
virtual 1aw library denied, petitioners filed this petition raising the following
issues:chanrob1es virtual 1aw library
Thus, the records of this case convincingly show that, whenever the
I.
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 THAT RESPONDENT OMB AND RESPONDENT
INVESTIGATION OFFICER RAUL E. TOTANES COMMITTED
Everything stated in the pleadings filed by the OSG in the aforesaid OUTRAGEOUSLY WRONG FINDINGS (A) THAT THE OSG "IS
case is not the personal stand or opinion of the herein respondent but NOT DEFENDING THE INTEREST OF LUCIO TAN" IN SPEC.
the official stand or opinion of the OSG. Hence, OSG as counsel of the PROC. NO. 107812, NOW CA-G.R. NO. 39939, AND (B) THAT
Central Bank of the Philippines in the aforesaid case is defending its THE EDSA CASE SANDIGANBAYAN CIVIL CASE NO. 0005
client, the Central Bank. It is not defending the interest of Lucio Tan. HAS NOTHING TO DO WITH SPEC. PROC. NO. 107812, NOW
The fact that, under the Liquidation Plan approved by the Monetary CA-G.R. NO. 39939, ARE DIRECTLY CONTRADICTED BY THE
Board of the Central Bank, the Lucio Tan Group purchased the assets FACTS ON RECORD.
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, II.
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. THAT RESPONDENT OMBUDSMAN COMPLETELY ERRED IN
NOT CONSIDERING THAT THERE IS NO CONSTITUTIONAL
As regards the complaint in the Sandiganbayan, docketed as Civil NOR ANY LEGAL PROVISION NOR ANY DECISIONAL
Case No. 0005, which is an action for the recovery of the alleged ill- AUTHORITY NOR ANY PRESIDENTIAL AUTHORITY
gotten wealth against Lucio Tan, et. al., the same was signed by VESTING UPON OSG THE RIGHT AND OR DUTY TO
Presidential Commission on Good Government (PCGG) Chairman REPRESENT INTEREST "IN CONFLICT OR OPPOSED" TO THE
Ramon Diaz and Solicitor General Francisco Chavez. While it is true INTEREST OF THE REPUBLIC OF THE PHILIPPINES, OF
that, the said case is in the name of the Republic of the Philippines, yet WHICH OSG IS THE CHIEF COUNSEL, IN ANY ILL-GOTTEN
it was filed by the PCGG which is the only agency involved in that WEALTH CASE SUCH AS THAT ARISING FROM THE ILLEGAL
AND FRAUDULENT CB CLOSURE AND LUCIO TAN’S preference to such parties; and (5) that the public officers have acted
TAKEOVER OF GBTC, AS SET FORTH IN PAR.-14 (a)-(1) TO (3), with manifest partiality, evident bad faith or gross inexcusable
EDSA-SDB CIVIL CASE NO. 0005, ANNEX "C" . negligence. 9
III.
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
THAT RESPONDENT OMB IS TOTALLY WRONG IN NOT General, respondent was a member of the legal staff of the OSG tasked
FINDING THAT A PRIMA FACIE CASE EXISTS AGAINST to represent the Central Bank, an agency of the Government, in Spec.
RESPONDENT FOR VIOLATION OF SECTION 3 (e), RA No. Proc. No. 107812/CA-GR CV No. 39939. Based on the records, the
3019, AS AMENDED CONSIDERING THAT THE EVIDENCE ON case was originally assigned to Solicitor Nabong, but was re-assigned
RECORD, BEING DOCUMENTARY, IS SO CLEAR AND SO to respondent who at the time was a Solicitor, in view of the
PLAIN. 8 appointment of Nabong as RTC judge.
The petition must be dismissed. Not only are the charges against In defending the validity of the closure of GBTC, respondent ASG de
respondent ASG de Leon baseless, they are also misplaced.chanrobles Leon was merely acting in the interest of the Central Bank, which is
virtuallawlibrary:red 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
In accusing respondent ASG de Leon of malfeasance and violation of of the Lucio Tan group. However, such benefit would just be an
Section 3 (e) of RA 3019, petitioners would like this Court to believe incidental result of the position that the government has taken in
that respondent ASG de Leon, in representing the Central Bank in justifying the closure of said bank because the approved Liquidation
Spec. Proc. 107812 (now CA-GR CV No. 39939) is also defending the Plan for GBTC provided that the Lucio Tan group shall purchase all
interest of Lucio Tan. Considering that Sandiganbayan Civil Case No. the assets and assume all the liabilities of GBTC and such Liquidation
0005 is a complaint against Lucio Tan filed by the PCGG through the Plan would be in force upon a judgment upholding the legality of the
OSG and includes averments pertaining to the alleged illegal and closure of GBTC. 11 Whatever benefit the Lucio Tan group would
arbitrary closure of GBTC, petitioners are convinced that respondent reap upon a favorable judgment in Spec. Proc. No. 107812/CA-G.R.
ASG de Leon must be held personally liable for the alleged CV No. 39939 is but a natural consequence of a successful defense of
inconsistent interest or position taken by the OSG in these two cases. 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
To be criminally liable under Section 3 (e) of RA 3019, these elements unwarranted benefits or advantage.chanrobles.com : virtual law library
must be present: (1)That the accused are public officers or private
persons charged in conspiracy with them; (2) that said public officers We affirm the finding that respondent ASG de Leon cannot be held
commit the prohibited acts during the performance of their official criminally liable for violating Section 3 (e) of RA 3019. In defending
duties or in relation to their public positions; (3) that they cause undue the Central Bank, respondent was performing his legal duty to defend
injury to any party, whether the Government or a private party; (4) that the interest of the Government and was merely pursuing the position
such injury is caused by giving unwarranted benefits, advantage or 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 Petitioners have already raised the issue of "inconsistent positions" of
staff of the OSG. We note that in all of the pleadings filed by the OSG the OSG in Spec. Proc. No. 107812 and Sandiganbayan Civil Case No.
in Spec. Proc. No. 107812/CA-G.R. CV No. 39939, the signature of 0005 with the Court of Appeals in CA-G.R. CV No. 033642 (Appeal
respondent ASG de Leon appeared therein as Solicitor and later on as of the Central Bank from the decision of the RTC of Manila, Branch
Assistant Solicitor General. However, it must be noted that these IV in Spec. Proc. No. 107812).chanrobles virtua| |aw |ibrary
pleadings also bore the signatures of the Solicitor General and other
members of the legal staff of the Office of the Solicitor General. 12 In CA-G.R. CV No. 033642, petitioners sought to have then Solicitor
General Francisco Chavez cited in contempt and subjected to
Hence, the acts of respondent ASG de Leon had the imprimatur of the disciplinary action for said inconsistency. In upholding the position of
OSG which had consistently defended the interest of the Central Bank Solicitor General Chavez, the Court of Appeals stated in its Resolution
in Spec. Proc. No. 107812/CA-G.R. CV No. 39939. Four Solicitor dated July 19, 1988:chanrob1es virtual 1aw library
Generals, Estelito Mendoza, Sedfrey Ordoñez, Frank Chavez and Raul
I. Goco have maintained the policy of defending the closure of GBTC The second ground in support of the motion for contempt may have
by the Central Bank and respondent ASG de Leon merely acted with some basis per se, that is, appellant’s counsel espouses two
the other officials of the OSG in representing the State. 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
To be liable under Section 3 (e) of RA 3019, the five aforementioned second, in favor of the Republic but against Lucio Tan and his cohorts
elements must concur. In the absence of proof that respondent ASG de in the Civil Case before the Sandiganbayan. The situation of the
Leon acted with manifest partiality in pursuing the official stand of the appellant’s counsel may therefore be likened to one whose choice is
OSG in Spec. Proc. No. 107812/CA-G.R. CV No. 39939, respondent between the devil and the deep blue sea.
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 Still and all, we are not ready to condemn appellant’s counsel because
cause. 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
Petitioners harp on the alleged conflicting positions of respondent represents the State sometimes through its instrumentality like the
ASG de Leon in Spec. Proc. No. 107812/CA-G.R. CV No. 39939 and Central Bank and its officials, as in the instant case. In other words, the
in Sandiganbayan Civil Case No. 0005. However, the records fail to State in both cases has knowingly allowed counsel to represent it, and
disclose the nature and extent of respondent ASG de Leon’s for this reason, the latter may not be held in contempt and subjected to
participation in Sandiganbayan Civil Case No. 0005. What has been any disciplinary action. 14
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 This Court agrees that even the Solicitor General cannot be personally
respondent ASG de Leon participated in these two cases, this Court liable for the predicament he found himself in Spec. Proc. No. 107812
cannot hold him personally liable. The perceived inconsistent positions and Sandiganbayan Civil Case No. 0005. Basic to a prosecution under
are the official positions taken by his office as the principal law office Section 3 (e) of RA 3019 is that public officers must have acted with
and legal defender of the Government. 13 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
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
SO ORDERED.
G.R. No. L-38581 March 31, 1976 December 15, 1969, and promulgated on January 15, 1970 2 acquitted
accused Lorenzo Jose of illegal discharge of firearm and robbery, but
LORENZO JOSE, petitioner,
convicted him for illegal possession of the handgrenade that was found
vs.
on his person at the time of his arrest.
THE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents. After promulgation of the judgment, petitioner on that same day filed
his notice of appeal. Nine days thereafter or more particularly on
Francisco Carreon & Zosimo D. de Mesa for petitioner.
January 24, 1970, petitioner filed a motion praying that the case be
Solicitor General Estelito P. Mendoza, Assistant Solicitor General reopened to permit him to present, pursuant to a reservation he had
Eulogio Raquel-Santos and Solicitor Teodoro G. Bonifacio for made in the course of the trial, a permit to possess the handgrenade in
respondents. 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
MUÑOZ PALMA, J.: the decision was promulgated. 3
Petitioner Lorenzo Jose who was convicted of illegal possession of The records of Criminal Case 6237 were then elevated to the Court of
explosives (handgrenade) and sentenced to suffer imprisonment of five Appeals where petitioner as accused-appellant raised the issues of (1)
years, seeks a new trial which was denied him by the Court of First an erroneous conviction for illegal possession of explosives when
Instance of Pampanga, Branch III, and by respondent Court of there was no proof of an essential element of the crime, and (2)
Appeals. 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
Petitioner thus poses one legal issue for the Court to resolve, viz: did prayed for his acquittal or in the alternative for the remand of the case
respondent appellate court commit an error of law and gravely abuse back to the trial court for a new trial.
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 Resolving the appeal, respondent Appellate Court, 5 rendered its
handgrenade, and (2) the written appointment of petitioner as PC agent decision of March 8, 1972, affirming the findings of fact and the
with Code No. P-36-68 and code Name 'Safari' (both documents are judgment of conviction of the court a quo, and declaring that no
dated 31 January 1968)"? 1 reversible error was committed by the latter when it denied the
reopening of the case as the court had lost its "power to change,
The following incidents are not in dispute: modify, or alter its decision." 6
On February 8, 1968, at the poblacion of Floridablanca, Pampanga, A motion for reconsideration and/or new trial was filed with a plea that
petitioner Jose was arrested by the local police leading to the filing "assuming arguendo that the court a quo lacked jurisdiction to act
with the Court of First Instance of Pampanga, Branch III of several upon appellant's motion for new trial because of the perfection of the
criminal cases against him to wit: illegal discharge of firearm (Crim. appeal, this Honorable Court — before which said motion was
Case 6235), robbery (Crim. Case 6236) and illegal possession of reiterated and which has competence to act thereon — should have
explosives (Crim. Case 6237). These three cases were jointly tried granted the same if for no other reason than to prevent a miscarriage of
after which the trial judge, Hon. Honorio Romero, in a decision dated justice which is the inevitable result of its denial." 7 This motion for
reconsideration was denied in respondent court's resolution of April 3, The Solicitor General opposed the granting of the foregoing motion for
1974. 8 reconsideration claiming that there was neither a denial of "substantial
justice nor error of any sort on the part of respondent Court of
A second motion for reconsideration and/or new trial was filed by
Appeals, affirming the judgment of convinction," and that it being
Lorenzo Jose 9 but this was also denied by the appellate court in a
admitted by petitioner that the evidence sought to be introduced by
Resolution promulgated on July 24, 1974. 10
him at the new trial is not newly discovered evidence, the denial of the
Forthwith, appellant Lorenzo Jose assisted by counsel, Atty. Francisco new trial "visibly papers as correct". This Opposition drew a lengthy
Carreon, filed with Us this petition for review which We denied reply from petitioner's counsel.
outright on September 6, 1974, "the question raised being factual and
On February 13, 1975, a Manifestation was submitted by the Solicitor
for insufficient showing that the finding of facts by respondent court
General informing the Court that in view of the " Persistence of
are unsupported by substantial evidence, and for lack of merit."
accused petitioner Lorenzo Jose both before this Honorable Court and
A motion for reconsideration was filed by petitioner stressing that the respondent Court of Appeals as to his alleged existing appointment as
following grounds should justify this Court to review the ruling of PC Agent and/or authority to handgrenade," in the interest of justice,
respondent appellate court to wit: he was constrained to make pertinent inquiries from the PC Chief,
Gen. Fidel V. Ramos who in reply sent his letter dated December 27,
1. petitioners's plight is of compelling human and legal interest, and 1974 with enclosures, xerox copies of which are being attached to the
his being imprisoned for five (5) years when there is indubitable manifestation as Annexes A, B, C, C-1 and D. 11
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 Annex A of the above-mentioned Manifestation of the Solicitor
the justice and inevitability of such a result; General reads:
2. a question of substance not heretofore determined by the Honorable Solicitor General Estelito P. Mendoza
Court is involved, as the evidence sought to be introduced at the new
Padre Faura, Manila
trial is, technically, not newly discovered: and
Dear Solicitor General Mendoza:
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 With reference to your letter of December 5, 1974, please be informed
decisions of this Honorable Court because under these decisions, the that Colonel Pedrito C. de Guzman who is now Provincial of Sorsogon
new trial should have been granted since there is a 'strong, compelling Constabulary Command, confirmed that he executed an affidavit on
reason' in this case for granting the relief prayed for, such strong May 4, 1974 at Sorsogon, Sorsogon stating that he appointed Mr.
compelling reason being the very strong probability of petitioner's Lorenzo Jose of Betis, Guagua, Pampanga as PC Agent on January 31,
acquittal if a new trial were granted. (Workmen's Insurance Co. vs. 1968.
Augusto, 40 SCRA 123; Sison vs. Gatchalian, 51 SCRA 262; Rubio
The incumbent Provincial Commander of Pampanga Constabulary
vs. Mariano 52 SCRA 338; Montecines vs. Court of Appeals, 53
Command also confirmed the appointment of Lorenzo Jose as PC
SCRA 14; Posadas vs. Court of Appeals, L-38071, April 25, 1974;
agent during the year 1968.
please see Annotation: 52 SCRA 346 ... (pp. 157-158, rollo)
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 Petitioner cites certain peculiar circumstances obtaining in the case
of the Court of First Instance, the appellate court may affirm or modify now before Us which may be classified as exceptional enough to
the judgment and increase or reduce the penalty imposed by the trial warrant a new trial if only to afford him an opportunity to establish his
court, remand the case ito the Court of First Instance for new trial or innocence of the crime charged.
retrial, or dismiss the case.
Thus — petitioner was facing a criminal prosecution for illegal
Petitioner asserts, and correctly so, that the authority of respondent possession of a handgrenade in the court below. He claimed to be an
appellate court over an appealed case is broad and ample enough to agent of the Philippine Constabulary with a permit to possess
embrace situations as the instant case where the court may grant a new explosives such as the handgrenade in question. However, he found
trial or a retrial for reasons other than that provided in Section 13 of himself in a situation where he had to make a choice — reveal his
the same Rule, or Section 2, Rule 121 of the Rules of Court. 13 While Identity as an undercover agent of the Philippine Constabulary
Section 13, Rule 124, and Section 2, Rule 121, provide for specific assigned to perform intelligence work on subversive activities and face
grounds for a new trial, i.e. newly discovered evidence, and errors of possible reprisals or even liquidation at the hands of the dissidents
law or irregularities committed during the trial. Section 11, Rule 124 considering that Floridablanca the site of the incident, was in the heart
quoted above does not so specify, thereby leaving to the sound of "Huklandia", or ride on the hope of a possible exoneration or
discretion of the court the determination, on a case to case basis, of acquittal based on insufficiency of the evidence of the prosecution.
what would constitute meritorious circumstances warranting a new Without revealing his Identity as an agent of the Philippine
trial or re-trial. 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
Surely, the Rules of Court were conceived and promulgate to aid and
permit however could not be produced because it would reveal his
not to obstruct the proper administration of justice, to set forth
intelligence work activities. Came the judgment of conviction and with
guidelines in the dispensation of justice but not to bind and chain the
it the staggering impact of a five-year imprisonment. The competent
hand that dispense justice, for otherwise, courts will be mere slaves to
authorities then realized that it was unjust for this man to go to jail for
or robots of technical rules, shorn of judicial discretion.
a crime he had not committed, hence, came the desired evidence
Thus, admittedly, courts may suspend its own rules or except a case concerning petitioner's appointment as a Philippine Constabulary agent
from them for the purposes of justice 14 or, in a proper case, disregard and his authority to possess a handgrenade for the protection of his
them. 15 In this jurisdiction, in not a. few instances, 15* this Court person, but, it was too late according to the trial court because in the
ordered a new trial in criminal cases on grounds not mentioned in the meantime the accused had perfected his appeal.
statute, vis retraction of witness, 16 negligence or incompetency of
We find and hold that the above circumstances justify a reopening of
counsel. 17 improvident plea of guilty, 18 disqualification of an attorney
petitioner's cas to afford him the opportunity of producing exculpating
de oficio to represent the accused in the trial court, 19 and where a
exculpating evidence. An outright acquittal from this Court which
judgment was rendered on a stipulation of facts entered into by both
petitioner seeks as an alternative relief is not As correctly stressed by
the prosecution and the defense. 20
the Solicitor General, the People is to be given the chance of
Characteristically, a new trial has been described as a new invention to examining the documentary sought to be produced, and of cross-
temper the severity of a judgment or prevent the failure of justice. 21 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 In 1976, General Bank and Trust Company (GENBANK) encountered
financial difficulties. GENBANK had extended considerable financial
[G.R. NOS. 151809-12. April 12, 2005]
support to Filcapital Development Corporation causing it to incur daily
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT overdrawings on its current account with the Central Bank.1 It was
(PCGG), Petitioner, v. SANDIGANBAYAN (Fifth Division), later found by the Central Bank that GENBANK had approved various
LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. loans to directors, officers, stockholders and related interests
SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN totaling P172.3 million, of which 59% was classified as doubtful
HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO and P0.505 million as uncollectible.2 As a bailout, the Central Bank
TAN KEE HIONG (represented by TARCIANA C. TAN), extended emergency loans to GENBANK which reached a total
FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG of P310 million.3 Despite the mega loans, GENBANK failed to
CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL recover from its financial woes. On March 25, 1977, the Central
KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, Bank issued a resolution declaring GENBANK insolvent and
CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, unable to resume business with safety to its depositors, creditors and
BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING the general public, and ordering its liquidation.4 A public bidding of
CORP., ALLIED LEASING AND FINANCE CORPORATION, GENBANK's assets was held from March 26 to 28, 1977, wherein the
ASIA BREWERY, INC., BASIC HOLDINGS CORP., Lucio Tan group submitted the winning bid.5 Subsequently, former
FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., Solicitor General Estelito P. Mendoza filed a petition with the then
GRANDSPAN DEVELOPMENT CORP., HIMMEL Court of First Instance praying for the assistance and supervision of
INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., the court in GENBANK's liquidation as mandated by Section 29 of
JEWEL HOLDINGS, INC., MANUFACTURING SERVICES Republic Act No. 265.
AND TRADE CORP., MARANAW HOTELS AND RESORT
In February 1986, the EDSA I revolution toppled the Marcos
CORP., NORTHERN TOBACCO REDRYING PLANT,
government. One of the first acts of President Corazon C. Aquino was
PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC.,
to establish the Presidential Commission on Good Government
SIPALAY TRADING CORP., VIRGO HOLDINGS &
(PCGG) to recover the alleged ill-gotten wealth of former President
DEVELOPMENT CORP., and ATTY. ESTELITO P.
Ferdinand Marcos, his family and his cronies. Pursuant to this
MENDOZA, Respondents.
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a
DECISION complaint for 'reversion, reconveyance, restitution, accounting and
damages against respondents Lucio Tan, Carmen Khao Tan, Florencio
PUNO, J.: T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano
This case is prima impressiones and it is weighted with significance Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos,
for it concerns on one hand, the efforts of the Bar to upgrade the ethics Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
of lawyers in government service and on the other, its effect on the Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso
right of government to recruit competent counsel to defend its Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita,
interests. 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 with the Court of First Instance (now Regional Trial Court) of and was
Development Corp., Himmel Industries, Iris Holdings and docketed as Special Proceeding No. 107812. The motions to disqualify
Development Corp., Jewel Holdings, Inc., Manufacturing Services and invoked Rule 6.03 of the Code of Professional Responsibility. Rule
Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco 6.03 prohibits former government lawyers from accepting
Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay 'engagement or employment in connection with any matter in which he
Trading Corp., Virgo Holdings & Development Corp., (collectively had intervened while in said service.
referred to herein as respondents Tan, et al.), then President Ferdinand
On April 22, 1991 the Second Division of the Sandiganbayan issued
E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea,
a resolution denying PCGG's motion to disqualify respondent
Don Ferry and Gregorio Licaros. The case was docketed as Civil
Mendoza in Civil Case No. 0005.11 It found that the PCGG failed to
Case No. 0005 of the Second Division of the Sandiganbayan.6 In
prove the existence of an inconsistency between respondent Mendoza's
connection therewith, the PCGG issued several writs of
former function as Solicitor General and his present employment as
sequestration on properties allegedly acquired by the above-named
counsel of the Lucio Tan group. It noted that respondent Mendoza did
persons by taking advantage of their close relationship and influence
not take a position adverse to that taken on behalf of the Central Bank
with former President Marcos.
during his term as Solicitor General.12 It further ruled that respondent
Respondents Tan, et al. repaired to this Court and filed petitions Mendoza's appearance as counsel for respondents Tan, et al. was
for certiorari, prohibition and injunction to nullify, among others, the beyond the one-year prohibited period under Section 7(b) of Republic
writs of sequestration issued by the PCGG.7 After the filing of the Act No. 6713 since he ceased to be Solicitor General in the year 1986.
parties' comments, this Court referred the cases to The said section prohibits a former public official or employee from
the Sandiganbayan for proper disposition. These cases were docketed practicing his profession in connection with any matter before the
as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et office he used to be with within one year from his resignation,
al. were represented by their counsel, former Solicitor General Estelito retirement or separation from public office.13 The PCGG did not seek
P. Mendoza, who has then resumed his private practice of law. any reconsideration of the ruling.14 ςrνll
On February 5, 1991, the PCGG filed motions to It appears that Civil Case Nos. 0096-0099 were transferred from
disqualify respondent Mendoza as counsel for respondents Tan, et al. the Sandiganbayan's Second Division to the Fifth Division.15 In its
with the Second Division of the Sandiganbayan in Civil Case Nos. resolution dated July 11, 2001, the Fifth Division of
00058 and 0096-0099.9 The motions alleged that respondent Mendoza, the Sandiganbayan denied the other PCGG's motion to disqualify
as then Solicitor General10 and counsel to Central Bank, 'actively respondent Mendoza.16 It adopted the resolution of its Second
intervened in the liquidation of GENBANK, which was subsequently Division dated April 22, 1991, and observed that the arguments were
acquired by respondents Tan, et al. and became Allied Banking the same in substance as the motion to disqualify filed in Civil Case
Corporation. Respondent Mendoza allegedly 'intervened in the No. 0005. The PCGG sought reconsideration of the ruling but its
acquisition of GENBANK by respondents Tan, et al. when, in his motion was denied in its resolution dated December 5, 2001.17 ςrνll
capacity as then Solicitor General, he advised the Central Bank's
Hence, the recourse to this Court by the PCGG assailing the
officials on the procedure to bring about GENBANK's liquidation and
resolutions dated July 11, 2001 and December 5, 2001 of the Fifth
appeared as counsel for the Central Bank in connection with its
Division of the Sandiganbayan via a Petition for Certiorari and
petition for assistance in the liquidation of GENBANK which he filed
prohibition under Rule 65 of the 1997 Rules of Civil Procedure.18 The underscored the central duty of truth and fairness in litigation as
PCGG alleged that the Fifth Division acted with grave abuse of superior to any obligation to the client. The formulations of the
discretion amounting to lack or excess of jurisdiction in issuing the litigation duties were at times intricate, including specific pleading
assailed resolutions contending that: 1) Rule 6.03 of the Code of standards, an obligation to inform the court of falsehoods and a duty to
Professional Responsibility prohibits a former government lawyer explore settlement alternatives. Most of the lawyer's other basic duties
from accepting employment in connection with any matter in which he -- competency, diligence, loyalty, confidentiality, reasonable fees and
intervened; 2) the prohibition in the Rule is not time-bound; 3) that service to the poor -- originated in the litigation context, but ultimately
Central Bank could not waive the objection to respondent Mendoza's had broader application to all aspects of a lawyer's practice.
appearance on behalf of the PCGG; and 4) the resolution in Civil Case
The forms of lawyer regulation in colonial and early post-
No. 0005 was interlocutory, thus res judicata does not apply.19 ςrνll
revolutionary America did not differ markedly from those in
The petition at bar raises procedural and substantive issues of law. In England. The colonies and early states used oaths, statutes, judicial
view, however, of the import and impact of Rule 6.03 of the Code of oversight, and procedural rules to govern attorney behavior. The
Professional Responsibility to the legal profession and the difference from England was in the pervasiveness and continuity of
government, we shall cut our way and forthwith resolve the such regulation. The standards set in England varied over time, but the
substantive issue. variation in early America was far greater. The American regulation
fluctuated within a single colony and differed from colony to colony.
I
Many regulations had the effect of setting some standards of conduct,
Substantive Issue but the regulation was sporadic, leaving gaps in the substantive
standards. Only three of the traditional core duties can be fairly
The key issue is whether Rule 6.03 of the Code of Professional characterized as pervasive in the formal, positive law of the colonial
Responsibility applies to respondent Mendoza. Again, the prohibition and post-revolutionary period: the duties of litigation fairness,
states: 'A lawyer shall not, after leaving government service, accept competency and reasonable fees.20 ςrνll
engagement or employment in connection with any matter in which
he had intervened while in the said service. The nineteenth century has been termed the 'dark ages' of legal
ethics in the United States. By mid-century, American legal reformers
I.A. The history of Rule 6.03 were filling the void in two ways. First, David Dudley Field, the
A proper resolution of this case necessitates that we trace drafter of the highly influential New York 'Field Code, introduced a
the historical lineage of Rule 6.03 of the Code of Professional new set of uniform standards of conduct for lawyers. This concise
Responsibility. statement of eight statutory duties became law in several states in the
second half of the nineteenth century. At the same time, legal
In the seventeenth and eighteenth centuries, ethical standards for educators, such as David Hoffman and George Sharswood, and many
lawyers were pervasive in England and other parts of Europe. The other lawyers were working to flesh out the broad outline of a lawyer's
early statements of standards did not resemble modern codes of duties. These reformers wrote about legal ethics in unprecedented
conduct. They were not detailed or collected in one source but detail and thus brought a new level of understanding to a lawyer's
surprisingly were comprehensive for their time. The principal thrust of duties. A number of mid-nineteenth century laws and statutes, other
the standards was directed towards the litigation conduct of lawyers. It 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 Despite these amendments, legal practitioners remained unsatisfied
upon the merits of which he has previously acted in a judicial capacity. 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
A lawyer, having once held public office or having been in the
August 1983, the ABA adopted new Model Rules of Professional
public employ should not, after his retirement, accept employment
Responsibility. The Model Rules used the 'restatement format, where
in connection with any matter he has investigated or passed upon
the conduct standards were set-out in rules, with comments following
while in such office or employ.
each rule. The new format was intended to give better guidance and
Over the next thirty years, the ABA continued to amend many of the clarity for enforcement 'because the only enforceable standards were
canons and added Canons 46 and 47 in 1933 and 1937, the black letter Rules. The Model Rules eliminated the broad canons
respectively.31 ςrνll altogether and reduced the emphasis on narrative discussion, by
placing comments after the rules and limiting comment discussion to
In 1946, the Philippine Bar Association again adopted as its own the content of the black letter rules. The Model Rules made a number
Canons 33 to 47 of the ABA Canons of Professional Ethics.32 ςrνll of substantive improvements particularly with regard to conflicts of
By the middle of the twentieth century, there was growing consensus interests.37 In particular, the ABA did away with Canon 9, citing
that the ABA Canons needed more meaningful revision. In 1964, the the hopeless dependence of the concept of impropriety on the
ABA President-elect Lewis Powell asked for the creation of a subjective views of anxious clients as well as the norm's indefinite
committee to study the 'adequacy and effectiveness' of the ABA nature.38 ςrνll
Canons. The committee recommended that the canons needed In cadence with these changes, the Integrated Bar of the Philippines
substantial revision, in part because the ABA Canons failed to (IBP) adopted a proposed Code of Professional Responsibility in
distinguish between 'the inspirational and the proscriptive and were 1980 which it submitted to this Court for approval. The Code was
thus unsuccessful in enforcement. The legal profession in the United drafted to reflect the local customs, traditions, and practices of the bar
States likewise observed that Canon 36 of the ABA Canons of and to conform with new realities. On June 21, 1988, this Court
Professional Ethics resulted in unnecessary disqualification of lawyers promulgated the Code of Professional Responsibility.39 Rule 6.03
for negligible participation in matters during their employment with of the Code of Professional Responsibility deals particularly with
the government. former government lawyers, and
The unfairness of Canon 36 compelled ABA to replace it in the provides, viz.:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
1969 ABA Model Code of Professional Responsibility.33 The basic Rule 6.03 - A lawyer shall not, after leaving government service,
ethical principles in the Code of Professional Responsibility were accept engagement or employment in connection with any matter in
supplemented by Disciplinary Rules that defined minimum rules of which he had intervened while in said service.
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 Rule 6.03 of the Code of Professional Responsibility retained the
drafting committee reformulated the canons into the Model Code of general structure of paragraph 2, Canon 36 of the Canons of
Professional Responsibility, and, in August of 1969, the ABA House Professional Ethics but replaced the expansive phrase 'investigated
of Delegates approved the Model Code.36 ςrνll and passed upon with the word 'intervened. It is, therefore, properly
applicable to both 'adverse-interest conflicts' and 'congruent- on how to proceed with the said bank's liquidation and even filing the
interest conflicts. petition for its liquidation with the CFI of.
The case at bar does not involve the 'adverse interest aspect of As proof thereof, the PCGG cites the Memorandum dated March 29,
Rule 6.03. Respondent Mendoza, it is conceded, has no adverse 1977 prepared by certain key officials of the Central Bank, namely,
interest problem when he acted as Solicitor General in Sp. Proc. No. then Senior Deputy Governor Amado R. Brinas, then Deputy
107812 and later as counsel of respondents Tan, et al. in Civil Case Governor Jaime C. Laya, then Deputy Governor and General Counsel
No. 0005 and Civil Case Nos. 0096-0099 before the Sandiganbayan. Gabriel C. Singson, then Special Assistant to the Governor Carlota P.
Nonetheless, there remains the issue of whether there exists a Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and
'congruent-interest conflict sufficient to disqualify respondent then Director of Department of Commercial and Savings Bank
Mendoza from representing respondents Tan, et al. Antonio T. Castro, Jr., where they averred that on March 28, 1977,
they had a conference with the Solicitor General (Atty. Mendoza), who
I.B. The 'congruent interest aspect of Rule 6.03
advised them on how to proceed with the liquidation of GENBANK.
The key to unlock Rule 6.03 lies in comprehending first, the meaning The pertinent portion of the said memorandum
of 'matter referred to in the rule and, second, the metes and bounds of states:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
the 'intervention made by the former government lawyer on the
Immediately after said meeting, we had a conference with the Solicitor
'matter. The American Bar Association in its Formal Opinion 342,
General and he advised that the following procedure should be taken:
defined 'matter as any discrete, isolatable act as well as identifiable
transaction or conduct involving a particular situation and specific 1. Management should submit a memorandum to the Monetary Board
party, and not merely an act of drafting, enforcing or interpreting reporting that studies and evaluation had been made since the last
government or agency procedures, regulations or laws, or briefing examination of the bank as of August 31, 1976 and it is believed that
abstract principles of law. 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
Firstly, it is critical that we pinpoint the 'matter which was the subject
creditors and the general public.
of intervention by respondent Mendoza while he was the Solicitor
General. The PCGG relates the following acts of respondent Mendoza 2. If the said report is confirmed by the Monetary Board, it shall order
as constituting the 'matter where he intervened as a Solicitor the liquidation of the bank and indicate the manner of its liquidation
General, viz:40 ςrνll and approve a liquidation plan.
The PCGG's Case for Atty. Mendoza's Disqualification 3. The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the bank and the
The PCGG imputes grave abuse of discretion on the part of
liquidation plan approved by the Monetary Board.
the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions
dated July 11, 2001 and December 5, 2001 denying the motion to 4. The Solicitor General shall then file a petition in the Court of First
disqualify Atty. Mendoza as counsel for respondents Tan, et al. The Instance reciting the proceedings which had been taken and praying
PCGG insists that Atty. Mendoza, as then Solicitor General, actively the assistance of the Court in the liquidation of Genbank.
intervened in the closure of GENBANK by advising the Central Bank
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of concept of 'matter under Rule 6.03. The procedure of liquidation is
the Monetary Board where it was shown that Atty. Mendoza was given in black and white in Republic Act No. 265, section 29, viz:
furnished copies of pertinent documents relating to GENBANK in
The provision reads in part:
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 SEC. 29. Proceedings upon insolvency. - Whenever, upon examination
reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ by the head of the appropriate supervising or examining department or
his examiners or agents into the condition of any bank or non-bank
The Board decided as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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
E. To authorize Management to furnish the Solicitor General with a
or creditors, it shall be the duty of the department head concerned
copy of the subject memorandum of the Director, Department of
forthwith, in writing, to inform the Monetary Board of the facts, and
Commercial and Savings Bank dated March 29, 1977, together with
the Board may, upon finding the statements of the department head to
copies of:
be true, forbid the institution to do business in the Philippines and shall
1. Memorandum of the Deputy Governor, Supervision and designate an official of the Central Bank or a person of recognized
Examination Sector, to the Monetary Board, dated March 25, 1977, competence in banking or finance, as receiver to immediately take
containing a report on the current situation of Genbank; 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
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust creditors, exercising all the powers necessary for these purposes
Co., dated March 23, 1977; including, but not limited to, bringing suits and foreclosing mortgages
3. Memorandum of the Director, Department of Commercial and in the name of the bank or non-bank financial intermediary performing
Savings Bank, to the Monetary Board, dated March 24, 1977, quasi-banking functions.
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 If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing
4. Such other documents as may be necessary or needed by the quasi-banking functions is insolvent or cannot resume business with
Solicitor General for his use in then CFI-praying the assistance of the safety to its depositors, creditors and the general public, it shall, if the
Court in the liquidation of Genbank. public interest requires, order its liquidation, indicate the manner of its
Beyond doubt, therefore, the 'matter or the act of respondent Mendoza liquidation and approve a liquidation plan. The Central Bank shall, by
as Solicitor General involved in the case at bar is 'advising the Central the Solicitor General, file a petition in the Court of First Instance
Bank, on how to proceed with the said bank's liquidation and even reciting the proceedings which have been taken and praying the
filing the petition for its liquidation with the CFI of. In fine, the Court assistance of the court in the liquidation of such institution. The court
should resolve whether his act of advising the Central Bank on shall have jurisdiction in the same proceedings to adjudicate disputed
the legal procedure to liquidate GENBANK is included within the 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 Insolvency, under this Act, shall be understood to mean the inability of
institution and to implement the liquidation plan approved by the a bank or non-bank financial intermediary performing quasi-banking
Monetary Board. The Monetary Board shall designate an official of functions to pay its liabilities as they fall due in the usual and ordinary
the Central Bank, or a person of recognized competence in banking or course of business. Provided, however, That this shall not include the
finance, as liquidator who shall take over the functions of the receiver inability to pay of an otherwise non-insolvent bank or non-bank
previously appointed by the Monetary Board under this Section. The financial intermediary performing quasi-banking functions caused by
liquidator shall, with all convenient speed, convert the assets of the extraordinary demands induced by financial panic commonly
banking institution or non-bank financial intermediary performing evidenced by a run on the bank or non-bank financial intermediary
quasi-banking functions to money or sell, assign or otherwise dispose performing quasi-banking functions in the banking or financial
of the same to creditors and other parties for the purpose of paying the community.
debts of such institution and he may, in the name of the bank or non-
The appointment of a conservator under Section 28-A of this Act or
bank financial intermediary performing quasi-banking functions,
the appointment of a receiver under this Section shall be vested
institute such actions as may be necessary in the appropriate court to
exclusively with the Monetary Board, the provision of any law,
collect and recover accounts and assets of such institution.
general or special, to the contrary notwithstanding. (As amended by
The provisions of any law to the contrary notwithstanding, the actions PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
of the Monetary Board under this Section and the second paragraph of
We hold that this advice given by respondent Mendoza on the
Section 34 of this Act shall be final and executory, and can be set aside
procedure to liquidate GENBANK is not the 'matter contemplated by
by the court only if there is convincing proof that the action is plainly
Rule 6.03 of the Code of Professional Responsibility. ABA Formal
arbitrary and made in bad faith. No restraining order or injunction shall
Opinion No. 342 is clear as daylight in stressing that the
be issued by the court enjoining the Central Bank from implementing
'drafting, enforcing or interpreting government or agency
its actions under this Section and the second paragraph of Section 34
procedures, regulations or laws, or briefing abstract principles of law
of this Act, unless there is convincing proof that the action of the
are acts which do not fall within the scope of the term 'matter and
Monetary Board is plainly arbitrary and made in bad faith and the
cannot disqualify.
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 Secondly, it can even be conceded for the sake of argument that the
an amount to be fixed by the court. The restraining order or injunction above act of respondent Mendoza falls within the definition of matter
shall be refused or, if granted, shall be dissolved upon filing by the per ABA Formal Opinion No. 342. Be that as it may, the said act of
Central Bank of a bond, which shall be in the form of cash or Central respondent Mendoza which is the 'matter involved in Sp. Proc. No.
Bank cashier(s) check, in an amount twice the amount of the bond of 107812 is entirely different from the 'matter involved in Civil Case
the petitioner or plaintiff conditioned that it will pay the damages No. 0096. Again, the plain facts speak for themselves. It is given that
which the petitioner or plaintiff may suffer by the refusal or the respondent Mendoza had nothing to do with the decision of the Central
dissolution of the injunction. The provisions of Rule 58 of the New Bank to liquidate GENBANK. It is also given that he did not
Rules of Court insofar as they are applicable and not inconsistent with participate in the sale of GENBANK to Allied Bank. The 'matter
the provisions of this Section shall govern the issuance and dissolution where he got himself involved was in informing Central Bank on
of the restraining order or injunction contemplated in this Section. the procedure provided by law to liquidate GENBANK thru the
courts and in filing the necessary petition in Sp. Proc. No. 107812 in There are, therefore, two possible interpretations of the word
the then Court of First Instance. The subject 'matter of Sp. Proc. No. 'intervene. Under the first interpretation, 'intervene includes
107812, therefore, is not the same nor is related to but is different participation in a proceeding even if the intervention is irrelevant or
from the subject 'matter in Civil Case No. 0096. Civil Case No. has no effect or little influence.43 Under the second interpretation,
0096 involves the sequestration of the stocks owned by respondents 'intervene only includes an act of a person who has the power to
Tan, et al., in Allied Bank on the alleged ground that they are ill- influence the subject proceedings.44 We hold that this second meaning
gotten. The case does not involve the liquidation of GENBANK. Nor is more appropriate to give to the word 'intervention under Rule 6.03
does it involve the sale of GENBANK to Allied Bank. Whether the of the Code of Professional Responsibility in light of its history. The
shares of stock of the reorganized Allied Bank are ill-gotten is far evils sought to be remedied by the Rule do not exist where the
removed from the issue of the dissolution and liquidation of government lawyer does an act which can be considered as innocuous
GENBANK. GENBANK was liquidated by the Central Bank due, such as 'x x x drafting, enforcing or interpreting government or agency
among others, to the alleged banking malpractices of its owners and procedures, regulations or laws, or briefing abstract principles of law.
officers. In other words, the legality of the liquidation of GENBANK
In fine, the intervention cannot be insubstantial and insignificant.
is not an issue in the sequestration cases. Indeed, the jurisdiction of the
Originally, Canon 36 provided that a former government lawyer
PCGG does not include the dissolution and liquidation of banks. It
'should not, after his retirement, accept employment in connection with
goes without saying that Code 6.03 of the Code of Professional
any matter which he has investigated or passed upon while in such
Responsibility cannot apply to respondent Mendoza because his
office or employ. As aforediscussed, the broad sweep of the phrase
alleged intervention while a Solicitor General in Sp. Proc. No.
'which he has investigated or passed upon resulted in unjust
107812 is an intervention on a matter different from the matter
disqualification of former government lawyers. The 1969 Code
involved in Civil Case No. 0096.
restricted its latitude, hence, in DR 9-101(b), the prohibition extended
Thirdly, we now slide to the metes and bounds of the only to a matter in which the lawyer, while in the government service,
'intervention contemplated by Rule 6.03. 'Intervene means, had 'substantial responsibility. The 1983 Model Rules further
viz.:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ 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
1: to enter or appear as an irrelevant or extraneous feature or
the lawyer participated personally and substantially as a public
circumstance. .. 2: to occur, fall, or come in between points of time or
officer or employee.
events. .. 3: to come in or between by way of hindrance or
modification: INTERPOSE. .. 4: to occur or lie between two things It is, however, alleged that the intervention of respondent Mendoza in
(Paris, where the same city lay on both sides of an intervening river. Sp. Proc. No. 107812 is significant and substantial. We disagree. For
..)41 ςrνll one, the petition in the special proceedings is an initiatory pleading,
hence, it has to be signed by respondent Mendoza as the then sitting
On the other hand, 'intervention is defined as:
Solicitor General. For another, the record is arid as to
1: the act or fact of intervening: INTERPOSITION; 2: interference that the actual participation of respondent Mendoza in the subsequent
may affect the interests of others.42 ςrνll 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 In interpreting Rule 6.03, the Court also cast a harsh eye on its use as
type of proceedings is to assist the Central Bank in determining claims a litigation tactic to harass opposing counsel as well as deprive his
of creditors against the GENBANK. The role of the court is not client of competent legal representation. The danger that the rule will
strictly as a court of justice but as an agent to assist the Central Bank be misused to bludgeon an opposing counsel is not a mere guesswork.
in determining the claims of creditors. In such a proceeding, the The Court of Appeals for the District of Columbia has noted 'the
participation of the Office of the Solicitor General is not that of the tactical use of motions to disqualify counsel in order to delay
usual court litigator protecting the interest of government. proceedings, deprive the opposing party of counsel of its choice, and
harass and embarrass the opponent, and observed that the tactic was
II
'so prevalent in large civil cases in recent years as to prompt frequent
Balancing Policy Considerations judicial and academic commentary.48 Even the United States Supreme
Court found no quarrel with the Court of Appeals' description of
To be sure, Rule 6.03 of our Code of Professional Responsibility disqualification motions as 'a dangerous game.49 In the case at bar,
represents a commendable effort on the part of the IBP to upgrade the the new attempt to disqualify respondent Mendoza is difficult to
ethics of lawyers in the government service. As aforestressed, it is a divine. The disqualification of respondent Mendoza has long been
take-off from similar efforts especially by the ABA which have not a dead issue. It was resuscitated after the lapse of many years and only
been without difficulties. To date, the legal profession in the United after PCGG has lost many legal incidents in the hands of respondent
States is still fine tuning its DR 9-101(b) rule. Mendoza. For a fact, the recycled motion for disqualification in the
In fathoming the depth and breadth of Rule 6.03 of our Code of case at bar was filed more than four years after the filing of the
Professional Responsibility, the Court took account of various petitions for certiorari, prohibition and injunction with the Supreme
policy considerations to assure that its interpretation and application Court which were subsequently remanded to the Sandiganbayan and
to the case at bar will achieve its end without necessarily prejudicing docketed as Civil Case Nos. 0096-0099.50 At the very least, the
other values of equal importance. Thus, the rule was not interpreted to circumstances under which the motion to disqualify in the case at bar
cause a chilling effect on government recruitment of able legal were refiled put petitioner's motive as highly suspect.
talent. At present, it is already difficult for government to match Similarly, the Court in interpreting Rule 6.03 was not
compensation offered by the private sector and it is unlikely that unconcerned with the prejudice to the client which will be caused
government will be able to reverse that situation. The observation is by its misapplication. It cannot be doubted that granting a
not inaccurate that the only card that the government may play to disqualification motion causes the client to lose not only the law firm
recruit lawyers is have them defer present income in return for the of choice, but probably an individual lawyer in whom the client has
experience and contacts that can later be exchanged for higher income confidence.51 The client with a disqualified lawyer must start again
in private practice.45 Rightly, Judge Kaufman warned that the sacrifice often without the benefit of the work done by the latter.52 The effects
of entering government service would be too great for most men to of this prejudice to the right to choose an effective counsel cannot be
endure should ethical rules prevent them from engaging in the practice overstated for it can result in denial of due process.
of a technical specialty which they devoted years in acquiring and
cause the firm with which they become associated to be The Court has to consider also the possible adverse effect of a
disqualified.46 Indeed, 'to make government service more difficult to truncated reading of the rule on the official independence of
exit can only make it less appealing to enter.47 ςrνll lawyers in the government service. According to Prof. Morgan: 'An
individual who has the security of knowing he or she can find private demand an evaluation of the interests of the defendant, government,
employment upon leaving the government is free to work vigorously, the witnesses in the case, and the public.60 ςrνll
challenge official positions when he or she believes them to be in
It is also submitted that the Court should apply Rule 6.03 in all its
error, and resist illegal demands by superiors. An employee who lacks
strictness for it correctly disfavors lawyers who 'switch sides. It is
this assurance of private employment does not enjoy such
claimed that 'switching sides' carries the danger that former
freedom.53 He adds: 'Any system that affects the right to take a new
government employee may compromise confidential official
job affects the ability to quit the old job and any limit on the ability to
information in the process. But this concern does not cast a shadow in
quit inhibits official independence.54 The case at bar involves the
the case at bar. As afore-discussed, the act of respondent Mendoza in
position of Solicitor General, the office once occupied by respondent
informing the Central Bank on the procedure how to liquidate
Mendoza. It cannot be overly stressed that the position of Solicitor
GENBANK is a different matter from the subject matter of Civil
General should be endowed with a great degree of independence.
Case No. 0005 which is about the sequestration of the shares of
It is this independence that allows the Solicitor General to recommend
respondents Tan, et al., in Allied Bank. Consequently, the danger that
acquittal of the innocent; it is this independence that gives him the
confidential official information might be divulged is nil, if not
right to refuse to defend officials who violate the trust of their office.
inexistent. To be sure, there are no inconsistent 'sides' to be bothered
Any undue dimunition of the independence of the Solicitor General
about in the case at bar. For there is no question that in lawyering for
will have a corrosive effect on the rule of law.
respondents Tan, et al., respondent Mendoza is not working against
No less significant a consideration is the deprivation of the former the interest of Central Bank. On the contrary, he is indirectly
government lawyer of the freedom to exercise his profession. Given defending the validity of the action of Central Bank in liquidating
the current state of our law, the disqualification of a former GENBANK and selling it later to Allied Bank. Their interests
government lawyer may extend to all members of his law coincide instead of colliding. It is for this reason that Central Bank
firm.55 Former government lawyers stand in danger of becoming offered no objection to the lawyering of respondent Mendoza in Civil
the lepers of the legal profession. Case No. 0005 in defense of respondents Tan, et al. There is no
switching of sides for no two sides are involved.
It is, however, proffered that the mischief sought to be remedied by
Rule 6.03 of the Code of Professional Responsibility is the possible It is also urged that the Court should consider that Rule 6.03 is
appearance of impropriety and loss of public confidence in intended to avoid conflict of loyalties, i.e., that a government
government. But as well observed, the accuracy of gauging public employee might be subject to a conflict of loyalties while still in
perceptions is a highly speculative exercise at best56 which can lead to government service.61 The example given by the proponents of this
untoward results.57 No less than Judge Kaufman doubts that the argument is that a lawyer who plans to work for the company that he
lessening of restrictions as to former government attorneys will have or she is currently charged with prosecuting might be tempted to
any detrimental effect on that free flow of information between the prosecute less vigorously.62 In the cautionary words of the Association
government-client and its attorneys which the canons seek to of the Bar Committee in 1960: 'The greatest public risks arising from
protect.58 Notably, the appearance of impropriety theory has been post employment conduct may well occur during the period of
rejected in the 1983 ABA Model Rules of Professional employment through the dampening of aggressive administration of
Conduct59 and some courts have abandoned per se disqualification government policies.63 Prof. Morgan, however, considers this concern
based on Canons 4 and 9 when an actual conflict of interest exists, and 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 respondent intervened and forbade his clients to pay. For this reason,
complainant called respondent, but instead of explaining his side,
A.C. No. 10697, March 25, 2019 respondent shouted, "I am busy I don't want to talk to you!" and
banged his cellphone.8
LARRY C. SEVILLA, COMPLAINANT, v. ATTY.
MARCELO C. MILLO, RESPONDENT. For his part,9 respondent denied administrative liability, averring that
he merely acted on behalf of his clients, who found the fee "exorbitant
DECISION 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
PERLAS-BERNABE, J.: maintained that complainant's non-issuance of an affidavit of
publication and non-submission of copies of the issues where the
Before the Court is an administrative complaint1 filed on November
notice of auction sale was printed caused the non-completion of the
14, 2014 by complainant Larry C. Sevilla (complainant), before the
foreclosure proceedings.12
Office of the Bar Confidant,2 against respondent Atty. Marcelo C.
Millo (respondent), charging the latter of harassment, misconduct, In a Resolution13 dated July 4, 2016, the Court referred the
obstruction of justice and ignorance of the law. administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report, and recommendation.
The Facts
The IBP's Report and Recommendation
Complainant alleged that he is the publisher of Pampango Footprints
(Pampango), a provincial newspaper circulated in Tarlac In a Report14 dated May 4, 2017, the Investigating Commissioner
Province.3 Sometime in April 2014, he issued a statement of found respondent administratively liable for violation of Rule
account4 in the amount of P33,120.00 to Spouses Avelino and 1.04,15 Canon 1 of the Code of Professional Responsibility (CPR), and
Melendrina Manalo (Sps. Manalo) as fee for the publication of the accordingly, recommended the penalty of reprimand or one (1)-month
notice of auction sale relative to Sps. Manalo's petition for foreclosure suspension.16
of mortgage, which was published in three (3) consecutive issues of
The Investigating Commissioner found that the matter simply involves
Pampango.5 Claiming that the publication fee was "exorbitant and
a misunderstanding in the collection of publication fee which could
shocking," respondent, as Sps. Manalo's counsel, refused to settle the
have easily been settled if respondent did not prevent the settlement. In
account, threatened complainant that he would petition for the
this relation, the Investigating Commissioner pointed out that Sps.
disqualification of Pampango, and thereafter, wrote an undated
Manalo had already successfully negotiated for a settlement, but the
letter6 to the Executive Judge of the Regional Trial Court of Tarlac
same did not push through because of respondent.17 Further, the
City in furtherance of such threat.7 Consequently, complainant filed
Investigating Commissioner noted that the respondent's claim of
this administrative complaint against respondent.
withdrawal as Sps. Manalo's counsel was belied by complainant's
During the pendency of this complaint, Sps. Manalo negotiated for a allegation that respondent intervened and forbade his clients to pay,
discount of fifty percent (50%), to which complainant agreed. Yet, which respondent did not deny.18
In a Resolution19 dated February 22, 2018, the IBP Board of discussing the matter with complainant. Remarkably, respondent's
Governors adopted the Investigating Commissioner's Report, with obstinate refusal to settle culminated in forbidding his clients, Sps.
modification lowering the recommended penalty of suspension from Manalo, to pay the reduced publication fee, which the latter secured
the practice of law for a period of one (1) month to mere reprimand. 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
The Issue Before the Court CPR, prejudiced his clients as they resulted in the non-completion of
the foreclosure proceedings, since complainant did not issue the
The essential issue for the Court's resolution is whether or not affidavit of publication nor provide copies of the issues where the
respondent should be administratively sanctioned for the acts notice of auction sale was actually printed.
complained of.
Anent the proper penalty to be imposed on respondent, under the
circumstances and considering that this is his first offense, the Court
The Court's Ruling 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
The Court concurs and affirms the findings of the IBP Board of with the Court's ruling in Caspe v. Mejica,22 where respondent therein
Governors with modification as to the penalty. was suspended for violating Rule 1.04, Canon 1 of the CPR, among
It is well to stress that lawyers owe fidelity to the cause of their clients others. Similarly, the Court has held that suspension is appropriate
and are expected to serve the latter with competence and diligence. when a lawyer knows that he is violating a court order or rule, and
Consequently, lawyers are entitled to employ every honorable means there is injury or potential injury to a client or a party, or interference
to defend the cause of their clients and secure what is due or potential interference with a legal proceeding,23 as in this case.
them.20 However, professional rules set limits on a lawyer's zeal and As a final note, it must be emphasized that membership in the legal
hedge it with necessary restrictions and qualifications.21 In this regard, profession is a privilege burdened with conditions. A lawyer is
Canon 1 of the CPR provides that lawyers "shall uphold the required to observe the law and be mindful of his or her actions
Constitution, obey the laws of the land and promote respect for law whether acting in a public or private capacity. Any transgression of
and of legal processes." In furtherance thereto, Rule 1.04 of the CPR this duty on his part would not only diminish his reputation as a lawyer
mandates lawyers to "encourage [their] clients to avoid, end, or settle a but would also erode the public's faith in the legal profession as a
controversy if it will admit of a fair settlement." whole.24 As such, the Court will not hesitate to impose the necessary
Guided by the foregoing, the Court agrees with the findings of the penalty to a lawyer whose conduct falls short of the exacting standards
Investigating Commissioner, as affirmed by the IBP Board of expected of him as a member of the Bar.25
Governors, that respondent indeed fell short of what is expected of WHEREFORE, respondent Atty. Marcelo C. Millo (respondent) is
him, despite his avowed duties as officer of the court. Records reveal hereby SUSPENDED from the practice of law for a period of one (1)
that respondent did not endeavor to initiate the settlement of the month, with a STERN WARNING that a repetition of the same or
publication fee being charged by complainant. Disagreeing with the similar act will be dealt with more severely.
statement of account, respondent chose not to pay and immediately
referred the matter to the Executive Judge, instead of negotiating and
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), Felix, Leonardo, Crispen, Pablito, and Lilia, Pablito did not sign the
March 06, 2019 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.
ROLANDO T. KO, COMPLAINANT, v. ATTY. ALMA
UY-LAMPASA, RESPONDENT. 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
DECISION 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.
CAGUIOA, J.:
Before the Court is an administrative complaint1 for disbarment filed Second, complainant also claimed that respondent, as counsel for Jerry
by Rolando T. Ko (complainant) against Atty. Alma Uy-Lampasa (the vendee in the abovementioned Deeds of Sale), filed a malicious
(respondent) with the Commission on Bar Discipline (CBD), case of Estafa against his son Jason and the Sultan siblings, grounded
Integrated Bar of the Philippines (IBP).2 on the allegation that the Extra-judicial Settlement was not published
when in fact, it was published as evidenced by an Affidavit of
Complaint Publication.8
In his Complaint dated October 2, 2012, complainant alleged that
Lastly, complainant averred that respondent also committed perjury
respondent violated the Code of Professional Responsibility for
and has filed pleadings in court without the necessary Mandatory
Lawyers (CPR). First, he claimed that respondent notarized two
Continuing Legal Education (MCLE) compliance number, attaching to
purported deeds of sale between Jerry Uy (Jerry) and the Sultan
his complaint several pleadings and manifestations in support of such.9
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 Answer
appears that the Sultan siblings are: Pablito, Anicieto, Cristita, Juanito,
Felix, Leonardo, Crispen,3 Lilia, Victoriano and Lucita.4
In her Answer10 dated November 10, 2012, respondent countered that
The Deeds of Absolute Sale dated October 12, 20115 and October 19, she has not violated any provision of the CPR, arguing that: (1) the
2011,6 are similar in the following respects: the vendee, the property matter of whether the deeds of sale were spurious is now the subject of
covered, and the consideration. However, the two deeds differ as separate cases pending in court and with the City Prosecutor's Office
regards the name of the vendors. For the Deed dated October 12, the of Catbalogan City, Western Samar; (2) the determination of whether
vendors named were Juanito, Felix, Leonardo, Crispen, Lilia, Pablito, the estafa case is malicious is within the jurisdiction of the City
Victoriano and Lucita, but only Leonardo, Lilia and Victoriano signed Prosecutor's Office conducting the preliminary investigation; and (3)
the deed. For the Deed dated October 19, Victoriano and Lucita were she was exempted from MCLE requirements for the first up to the
not included in the vendors and among those named, i.e., Juanito, 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
In a Resolution17 dated October 11, 2014, the IBP Board of Governors
12
Subsequently, the parties submitted their Reply and (IBP Board) adopted and approved the Report and Recommendation
Rejoinders13 before the CBD in support of their arguments and of the Investigating Commissioner, finding the same to be fully
counter-arguments. A mandatory conference was held on September supported by the evidence on record and applicable laws. The IBP
19, 2013 and upon its termination, both parties submitted their Board found that respondent indeed violated the 2004 Rules on
respective position papers.14 Notarial Practice and Bar Matter No. (B.M.) 850. However, the IBP
Board modified the recommendation of the Investigating
Report and Recommendation of the Investigating Commissioner
Commissioner and imposed on respondent the penalty of immediate
revocation of her notarial commission and disqualification for re-
On December 18, 2013, the Investigating Commissioner of the CBD appointment as notary public for two (2) years, not six months as
issued a Report and Recommendation,15 the pertinent portions of recommended by the Investigating Commissioner. In addition, the IBP
which are reproduced below: Board also suspended respondent from the practice of law for a
period of six (6) months.
xxx Stripped of the non-essentials, a scrutiny of the records would
show that respondent has, indeed, notarized two (2) documents of sale Respondent filed a Motion for Reconsideration18 (MR), which was
involving the same parties but containing different dates of denied by the IBP Board in a Resolution19 dated February 25, 2016.
notarization. Respondent has never denied notarizing the subject
documents in her verified answer and in her subsequent pleadings filed The Court notes that in respondent's MR before the IBP Board, she
before the CBD. Very clearly, this alone is a violation of the notarial argued that the latter merely adopted the Report and Recommendation
law. Moreover, there is sufficient evidence to prove that respondent of the Investigating Commissioner, which was likewise not exhaustive
failed to indicate her MCLE Compliance Certificate Number in enough in its findings and conclusions. Moreover, respondent claimed
various pleadings filed before the courts and the Prosecutors Office of that the IBP Board failed to cite any specific violation of the Notarial
Catbalogan City, Western Samar. Her argument that she was on the and MCLE Rules. Lastly, respondent argued that the IBP Board
process of obtaining her MCLE certificate for the latest compliance increased the penalty imposed on her without citing any additional fact
period does not, in any way, exempt her from the mandate of the or basis.
circular. Prudence dictates that respondent should have refrained from
signing pleadings while her MCLE certificate is being processed. Indeed, despite the numerous submissions of the parties, the Report
Unfortunately, however, she failed to do so. and Recommendation of the Investigating Commissioner as well as the
Resolutions of the IBP Board leave much to be desired. Thus, the
WHEREFORE, PREMISES CONSIDERED, it is recommended Court shall expound on respondent's administrative liability.
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
Ruling of the Court
supplied)
Resolution of the IBP Board of Governors
Regional Trial Court (RTC) where the cases involved were pending
Non-compliance with the MCLE Requirements required her to submit her Certificates of Compliance. When
respondent received said certificates, she immediately submitted the
On the issue of compliance with the MCLE, the Court disagrees with same to the trial court.29
the Investigating Commissioner and the IBP Board.
In finding respondent administratively liable, the IBP Board merely
B.M. 850 requires members of the IBP to undergo continuing legal stated that she violated B.M. 850. The relevant provisions thereof are
education "to ensure that throughout their career, they keep abreast Rules 12 and 13, which provide:
with law and jurisprudence, maintain the ethics of the profession and
RULE 12
enhance the standards of the practice of law."20 The First Compliance
Non-Compliance Procedures
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 xxxx
to 14 April 2010; and the Fourth Compliance Period was from 15
April 2010 to 14 April 2013.21 SECTION 2. Non-compliance Notice and 60-day Period to Attain
Compliance. — Members failing to comply will receive a Non-
Here, complainant alleged that in several pleadings filed by Compliance Notice stating the specific deficiency and will be given
respondent, the latter did not indicate her MCLE compliance number. sixty (60) days from the date of notification to file a response
He cited five pleadings filed by respondent which were dated clarifying the deficiency or otherwise showing compliance with the
December 7, 2011,22 February 25, 2012,23 March 8, 2012,24 and two requirements. xxx
pleadings dated March 27, 2012,25 thus falling under the Fourth
Compliance Period. xxxx
For her part, respondent explained that she was exempted from MCLE Members given sixty (60) days to respond to a Non-Compliance
compliance for the First, Second, and Third Compliance Periods, until Notice may use this period to attain the adequate number of
she resigned as a judge on March 2010. After which, she endeavored credit units for compliance. xxx
to comply with the Fourth Compliance Period while also in the
process of requesting copies of her certificate of exemption.26 RULE 13
Consequences of Non-Compliance
The Court notes that respondent eventually completed the required
units on May 19, 2012, which is still within the Fourth Compliance SECTION 1. Non-compliance Fee. — A member who, for whatever
Period. Likewise, she was also issued Certificates of Exemption27 on reason, is in non-compliance at the end of the compliance period
September 4, 2012 for the First, Second, and Third Compliance shall pay a non-compliance fee.
Periods.28
SECTION 2. Listing as Delinquent Member. — A member who fails
Moreover, respondent manifested that the presiding judge of the to comply with the requirements after the sixty (60) day period for
compliance has expired, shall be listed as a delinquent member of notarial system.31 In this case, respondent failed to faithfully comply
the IBP upon the recommendation of the MCLE Committee. The with her duties as a notary public.
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 It appears that respondent notarized two Deeds of Absolute Sale
MCLE Committee. (Emphasis and underscoring supplied) covering the same property and involving substantially the same
parties. In the October 12, 2011 Deed of Absolute Sale, the
Based on the rules, an IBP member shall only be declared delinquent
Acknowledgement reads in part:
for failure to comply with the education requirements "after the sixty
(60) day period for compliance has expired." This 60-day period shall BEFORE ME, a Notary Public for and in the Province of
commence from the time such member received a notice of non- Samar, personally appeared JUANITO A. SULTAN, FELIX A.
compliance. Without the notice of compliance, a member who believes SULTAN, LEONARDO A. SULTAN, CRISPEN A. SULTAN, LILIA
that the units he or she had taken already amounts to full compliance A. SULTAN, PABLITO A. SULTAN, VICTORIANO A. SULTAN,
may be declared delinquent without being made aware of such lack of LUCITA S. UY and JERRY I. UY, exhibiting to me their
units and with no chance to rectify the same.30 Community Tax Certificate numbers, known to me to be the same
persons who executed the foregoing instrument, which they
In the instant case, there is no showing that respondent had ever been acknowledged to me as their free and voluntary act and
issued a Notice of Non-Compliance. On the contrary, the records show deed.32 (Emphasis supplied)
that for the first to third compliance periods, she was exempted for
However, among the vendors, only Leonardo, Lilia, and Victoriano
being a member of the judiciary, and that she was able to complete the
actually signed the deed. Details of the Community Tax Certificate
requirements for the fourth compliance period. The Court also notes
(CTC) of Juanito, Felix, and Crispen were provided, but they did not
that when complainant filed the disbarment case on October 12, 2012,
sign the deed. As for Pablito and Lucita, the space for the signature
respondent still had until April 14, 2013 to comply with the fourth
and identification details was left blank.
compliance period. She eventually completed the required units on
May 19, 2012. Thus, there is no reason for respondent to be held liable
Likewise, in the October 19, 2011 Deed of Absolute Sale, the
and declared delinquent under B.M. 850.
Acknowledgement reads in part:
Violation of the Notarial Rules BEFORE ME, a Notary Public for and in the Province of
Samar, personally appeared JUANITO A. SULTAN, FELIX A.
Despite the foregoing, the Court agrees with the IBP Board that SULTAN, LEONARDO A. SULTAN, CRISPEN A. SULTAN, LILIA
respondent can be held liable for violation of the Rules on Notarial A. SULTAN, PABLITO A. SULTAN, and JERRY I. UY, exhibiting
Practice. to me their Community Tax Certificate numbers, known to me to
be the same persons who executed the foregoing instrument,
The act of notarization is impressed with public interest. As such, a which they acknowledged to me as their free and voluntary act and
notary public must observe the highest degree of care in complying deed.33 (Emphasis supplied)
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 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 instruments, the vendors therein claimed that they did not actually sign
no signature for Pablito even though he was listed as a vendor. the deeds. In support of this, complainant attached in his Complaint
the counter-affidavits of some of the Sultan siblings in the estafa case
In this regard, the Court notes that complainant submitted a copy of filed by Jerry (the vendee in the assailed deeds of sale), with
another deed of sale involving the same property, specifically the respondent as counsel. The pertinent portions of the counter-affidavits
Extra-judicial Settlement between his son Jason and all the Sultan are reproduced below:
siblings. In contrast with the Deeds of Sale notarized by respondent,
this Extra-judicial Settlement contains the names of all the Sultan In Victoriano Sultan's Counter-Affidavit,36 he stated that:
siblings, along with their signatures and thumbprints affixed on all
18. Later[,] I was surprised unpleasantly that the deed [of absolute
pages of the said document. Nonetheless, the issue on the genuineness
sale] had already been signed by my other siblings, by the witnesses[,]
of these deeds is subject of a pending civil case; hence, the Court will
and subscribed to before the notary public, which, on my part, I did
not rule on the matter. The instant resolution will focus on
not appear before her. xxx37 (Emphasis supplied).
respondent's administrative liability.
Similarly, Crispin Sultan stated in his Counter-Affidavit38 the
Section 6 of Rule IV of the 2004 Rules on Notarial Practice states: following:
SEC. 6. Improper Instruments or Documents. — A notary public 15. Later[,] I was surprised to know that I supposedly appeared,
shall not notarize: 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
(a) a blank or incomplete instrument or document; or Bacolod City discharging my duties as security guard[.]39 (Emphasis
supplied).
Also, in Felix Sultan's Counter-Affidavit,40 he stipulated that:
(b) an instrument or document without appropriate notarial
certification. 19. It is noteworthy that I did not appear before a notary public in
Catbalogan City supposedly to execute and sign any deed of
Here, respondent clearly violated this provision when she notarized the conveyance in the month of October 2011; and specifically[,] I did
deeds of absolute sale despite the incomplete signature and not receive the amount of P500,000.00 from
identification details of the vendors. Moreover, when the identification complainant[.]41 (Emphasis supplied)
details were indeed provided in the deeds, the proof of identity
Lastly, Juanito Sultan made a similar statement as Felix's in his
indicated for all of them was the CTC Number.
Counter-Affidavit:42
Jurisprudence34 already holds that a CTC is not considered as
competent evidence of identity as it does not bear a photograph and a 22. It is noteworthy that I did not appear before a notary public in
signature of the individual concerned, as required in Rule II, Section Catbalogan City supposedly to execute and sign any deed of
12 of the Notarial Rules.35 conveyance in the month of October 2011; and specifically[,] I did
not receive the amount of P500,000.00 from
Worse, while there are some signatures that do appear on the 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.
SECOND DIVISION
A.C. No. 9917, January 14, 2019 2012 and the IBP Board of Governor's Resolution11 dated March
21,2013 in CBD Case No. 11-3036.
NORBERTO S. COLLANTES, Complainant, v. ATTY.
ANSELMO B. MABUTI, Respondent. The complaint was thereafter referred to the IBP for investigation,
report, and recommendation.12
RESOLUTION
The IBP's Report and Recommendation
PERLAS-BERNABE, J.:
In a Report and Recommendation13 dated December 7, 2016, the IBP
This administrative case stemmed from a complaint
Investigating Commissioner (IBP-IC) found respondent
affidavit,1 executed on May 10, 2013, filed by complainant Norberto
administratively liable for failure to comply with the Notarial Rules,
S. Collantes (complainant) before the Office of the Bar Confidant,
and accordingly, recommended that he be suspended from the practice
Supreme Court, against respondent Atty. Anselmo B. Mabuti
of law for a period of two (2) years.
(respondent) for violation of the 2004 Rules on Notarial Practice
(Notarial Rules)2 and of his duties as a lawyer.3 The IBP-IC found the evidence convincing that respondent was indeed
not commissioned as a notary public at the time the subject
The Facts
"Memorandum of Agreement" was notarized.14 Corollary thereto, the
Complainant alleged that on October 10, 2009, respondent notarized a IBP-IC brushed aside respondent's claim of double jeopardy, pointing
document entitled "Memorandum of Agreement"4 in the City of out that the present administrative action concerns an act that is
Manila. Upon verification, however, he discovered that respondent entirely different from the act for which he was found guilty of
was not commissioned as a notary public in the City of Manila for the violation of the Notarial Rules in CBD Case No. 11-3036, i.e., for
years 2008- 2009. In support thereof, complainant attached a notarizing a letter dated December 28, 2010 when he was likewise not
Certification5 dated February 27, 2012 issued by the Notarial Section commissioned as a notary public.
of the Office of the Clerk of Court and Ex-Officio Sheriff of the
In a Resolution15 dated August 31, 2017, the IBP Board of Governors
Regional Trial Court of Manila attesting to the same.
adopted the above findings and recommendation with modification,
In his Comment6 dated January 15, 2014, respondent denied the increasing the recommended penalty to: (a) perpetual disqualification
allegations and claimed that the signature in the "Memorandum of from being commissioned as a Notary Public since this is respondent's
Agreement" is not his. Respondent questioned complainant's motives second offense; (b) revocation of his notarial commission, if
for filing the present case against him, claiming that the latter has subsisting; and (c) suspension for two (2) years from the practice of
pending cases for Estafa filed against him.7 Finally, he prayed for the law.
dismissal of the complaint on the ground of double jeopardy.8 In this
The Issue Before the Court
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. The issue for the Court's resolution is whether or not the IBP correctly
Bertillo before the Integrated Bar of the Philippines (IBP), docketed as found respondent liable for violation of the 2004 Notarial Rules.
CBD Case No. 11-3036, for which he was disqualified from being
The Court's Ruling
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,
The Court affirms the findings and adopts with modification the It should be emphasized that respondent's transgressions of the
recommendations of the IBP Board of Governors. Notarial Rules also have a bearing on his standing as a
lawyer.26 In Virtusio v. Virtusio,27 the Court observed that "[a] lawyer
The Court has emphatically stressed that notarization is not an empty,
who notarizes a document without a proper commission violates his
meaningless, routinary act. Notarization by a notary public converts a
lawyer's oath to obey the law. He makes it appear that he is
private document into a public document making it admissible in
commissioned when he is not. He thus indulges in deliberate falsehood
evidence without further proof of its authenticity.16 A notarial
that the lawyer's oath forbids. This violation falls squarely under Rule
document is, by law, entitled to full faith and credit,17 and as such,
1.01 of Canon 1 of the Code of Professional Responsibility and Canon
notaries public are obligated to observe with utmost care the basic
7 as well,"28 to wit:
requirements in the performance of their duties.18
CANON 1 – A lawyer shall uphold the constitution, obey the laws of
For these reasons, notarization is invested with substantive public
the land and promote respect for law and legal processes.
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, Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral
those not qualified or authorized to act must be prevented from or deceitful conduct.
imposing upon the public, the courts, and the administrative offices in
CANON 7 – A lawyer shall at all times uphold the integrity and
general.20 The requirements for the issuance of a commission as a
dignity of the legal profession and support the activities of the
notary public must not be treated as a mere casual formality.21 Where
integrated bar.
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 Notably, while the Court agrees with the IBP's findings as regards
act which the Court has characterized as reprehensible, constituting as respondent's administrative liability, the Court, however, cannot adopt
it does, not only malpractice, but also the crime of falsification of the recommendation of the IBP Board of Governors to increase the
public documents, the offender may be subjected to disciplinary penalty against respondent to "[p]erpetual [d]isqualification from
action.22 Jurisprudence provides that without a commission, a lawyer being commissioned as [a] [n]otary [p]ublic"29 in view of an alleged
is unauthorized to perform any of the notarial acts.23 A lawyer who earlier infraction for which he was found guilty of violating the
performs a notarial act without such commission violates the lawyer's Notarial Rules by the IBP in CBD Case No. 11-3036. After an
oath to obey the laws, more specifically, the Notarial Rules.24 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
In this case, the IBP found that respondent notarized the subject
yet to be forwarded to the Court for its approval. As case law explains,
document, "Memorandum of Agreement," without being
the "[f]actual findings and recommendations of the [IBP] Commission
commissioned as a notary public at the time of notarization. This fact
on Bar Discipline and the Board of Governors x x x are
has been duly certified to by none other than the Notarial Section of
recommendatory, subject to review by the Court."30 In Torres v.
the Office of the Clerk of Court and Ex-Officio Sheriff of the Regional
Dalangin:31
Trial Court of Manila.25 Thus, by knowingly performing notarial acts
at the time when he was not authorized to do so, respondent clearly It is the Supreme Court, not the IBP, which has the constitutionally
violated the Notarial Rules and in consequence, should be held mandated duty to discipline lawyers. The factual findings of the IBP
administratively liable.
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.