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CANON 1

A.M. No. 1625 February 12, 1990


ANGEL L. BAUTISTA, complainant,
vs.ATTY. RAMON A. GONZALES, respondent.

5. Submitting to the Court of First Instance of Quezon City falsified


documents purporting to be true copies of "Addendum to the Land
Development Agreement dated August 30, 1971" and submitting the same
document to the Fiscal's Office of Quezon City, in connection with the
complaint for estafa filed by respondent against complainant designated as
I.S. No. 7512936;
6. Committing acts of treachery and disloyalty to complainant who was his
client;

RESOLUTION
PER CURIAM:
In a verified complaint filed by Angel L. Bautista on May 19, 1976, respondent Ramon
A. Gonzales was charged with malpractice, deceit, gross misconduct and violation of
lawyer's oath. Required by this Court to answer the charges against him, respondent
filed on June 19, 1976 a motion for a bill of particulars asking this Court to order
complainant to amend his complaint by making his charges more definite. In a
resolution dated June 28, 1976, the Court granted respondent's motion and required
complainant to file an amended complaint. On July 15, 1976, complainant submitted
an amended complaint for disbarment, alleging that respondent committed the
following acts:
1. Accepting a case wherein he agreed with his clients, namely, Alfaro
Fortunado, Nestor Fortunado and Editha Fortunado [hereinafter referred to
as the Fortunados] to pay all expenses, including court fees, for a contingent
fee of fifty percent (50%) of the value of the property in litigation.
2. Acting as counsel for the Fortunados in Civil Case No. Q-15143, wherein
Eusebio Lopez, Jr. is one of the defendants and, without said case being
terminated, acting as counsel for Eusebio Lopez, Jr. in Civil Case No. Q15490;
3. Transferring to himself one-half of the properties of the Fortunados, which
properties are the subject of the litigation in Civil Case No. Q-15143, while
the case was still pending;
4. Inducing complainant, who was his former client, to enter into a contract
with him on August 30, 1971 for the development into a residential
subdivision of the land involved in Civil Case No. Q-15143, covered by TCT
No. T-1929, claiming that he acquired fifty percent (50%) interest thereof as
attorney's fees from the Fortunados, while knowing fully well that the said
property was already sold at a public auction on June 30, 1971, by the
Provincial Sheriff of Lanao del Norte and registered with the Register of
Deeds of Iligan City;

7. Harassing the complainant by filing several complaints without legal basis


before the Court of First Instance and the Fiscal's Office of Quezon City;
8. Deliberately misleading the Court of First Instance and the Fiscal's Office
by making false assertion of facts in his pleadings;
9. Filing petitions "cleverly prepared (so) that while he does not intentionally
tell a he, he does not tell the truth either."
Respondent filed an answer on September 29, 1976 and an amended answer on
November 18, 1976, denying the accusations against him. Complainant filed a reply
to respondent's answer on December 29, 1976 and on March 24, 1977 respondent
filed a rejoinder.
In a resolution dated March 16, 1983, the Court referred the case to the Office of the
Solicitor General for investigation, report and recommendation. In the investigation
conducted by the Solicitor General, complainant presented himself as a witness and
submitted Exhibits "A" to "PP", while respondent appeared both as witness and
counsel and submitted Exhibits "1" to "11". The parties were required to submit their
respective memoranda.
On May 16, 1988 respondent filed a motion to dismiss the complaint against him,
claiming that the long delay in the resolution of the complaint against him constitutes
a violation of his constitutional right to due process and speedy disposition of cases.
Upon order of the Court, the Solicitor General filed a comment to the motion to
dismiss on August 8, 1988, explaining that the delay in the investigation of the case
was due to the numerous requests for postponement of scheduled hearings filed by
both parties and the motions for extension of time to file their respective memoranda."
[Comment of the Solicitor General, p. 2; Record, p. 365]. Respondent filed a reply to
the Solicitor General's comment on October 26, 1988. In a resolution dated January
16, 1989 the Court required the Solicitor General to submit his report and
recommendation within thirty (30) days from notice.
On April 11, 1989, the Solicitor General submitted his report with the recommendation
that Atty. Ramon A. Gonzales be suspended for six (6) months. The Solicitor General
found that respondent committed the following acts of misconduct:

a. transferring to himself one-half of the properties of his clients


during the pendency of the case where the properties were
involved;

Court. The Court shall base its final action on the case on the report and
recommendation submitted by the investigating official and the evidence presented by
the parties during the investigation.

b. concealing from complainant the fact that the property subject of


their land development agreement had already been sold at a
public auction prior to the execution of said agreement; and

Secondly, there is no need to refer the case to the IBP since at the time of the
effectivity of Rule 139-B [June 1, 1988] the investigation conducted by the Office
of the Solicitor General had been substantially completed. Section 20 of Rule
139-B provides that only pending cases, the investigation of which has not been
substantially completed by the Office of the Solicitor General, shall be transferred to
the IBP. In this case the investigation by the Solicitor General was terminated even
before the effectivity of Rule 139-B. Respondent himself admitted in his motion to
dismiss that the Solicitor General terminated the investigation on November 26, 1986,
the date when respondent submitted his reply memorandum [Motion to Dismiss, p. 1;
Record, p. 353].

c. misleading the court by submitting alleged true copies of a


document where two signatories who had not signed the original (or
even the xerox copy) were made to appear as having fixed their
signatures [Report and Recommendation of the Solicitor General,
pp. 17-18; Rollo, pp. 403-404].
Respondent then filed on April 14, 1989 a motion to refer the case to the Integrated
Bar of the Philippines (IBP) for investigation and disposition pursuant to Rule 139-B of
the Revised Rules of Court. Respondent manifested that he intends to submit more
evidence before the IBP. Finally, on November 27, 1989, respondent filed a
supplemental motion to refer this case to the IBP, containing additional arguments to
bolster his contentions in his previous pleadings.
I.
Preliminarily, the Court will dispose of the procedural issue raised by respondent. It is
respondent's contention that the preliminary investigation conducted by the Solicitor
General was limited to the determination of whether or not there is sufficient ground
to proceed with the case and that under Rule 139 the Solicitor General still has to file
an administrative complaint against him. Respondent claims that the case should be
referred to the IBP since Section 20 of Rule 139-B provides that:
This Rule shall take effect on June 1, 1988 and shall supersede the
present Rule 139 entitled DISBARMENT OR SUSPENSION OF
ATTORNEYS. All cases pending investigation by the Office of the
Solicitor General shall be transferred to the Integrated Bar of the
Philippines Board of Governors for investigation and disposition as
provided in this Rule except those cases where the investigation
has been substantially completed.
The above contention of respondent is untenable. In the first place, contrary to
respondent's claim, reference to the IBP of complaints against lawyers is not
mandatory upon the Court [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707;
Zaldivar v. Gonzales, G.R. No. 80578, October 7, 1988]. Reference of complaints to
the IBP is not an exclusive procedure under the terms of Rule 139-B of the Revised
Rules of Court [Ibid]. Under Sections 13 and 14 of Rule 139-B, the Supreme Court
may conduct disciplinary proceedings without the intervention of the IBP by
referring cases for investigation to the Solicitor General or to any officer of the
Supreme Court or judge of a lower court. In such a case, the report and
recommendation of the investigating official shall be reviewed directly by the Supreme

Thirdly, there is no need for further investigation since the Office of the Solicitor
General already made a thorough and comprehensive investigation of the case.
To refer the case to the IBP, as prayed for by the respondent, will result not only in
duplication of the proceedings conducted by the Solicitor General but also to further
delay in the disposition of the present case which has lasted for more than thirteen
(13) years.
Respondent's assertion that he still has some evidence to present does not warrant
the referral of the case to the IBP. Considering that in the investigation conducted by
the Solicitor General respondent was given ample opportunity to present evidence,
his failure to adduce additional evidence is entirely his own fault. There was therefore
no denial of procedural due process. The record shows that respondent appeared as
witness for himself and presented no less than eleven (11) documents to support his
contentions. He was also allowed to cross-examine the complainant who appeared as
a witness against him.
II.
The Court will now address the substantive issue of whether or not respondent
committed the acts of misconduct alleged by complainant Bautista.
After a careful review of the record of the case and the report and recommendation of
the Solicitor General, the Court finds that respondent committed acts of
misconduct which warrant the exercise by this Court of its disciplinary power.
The record shows that respondent prepared a document entitled "Transfer of Rights"
which was signed by the Fortunados on August 31, 1971. The document assigned
to respondent one-half (1/2) of the properties of the Fortunados covered by TCT
No. T-1929, with an area of 239.650 sq. mm., and TCT No. T-3041, with an area of
72.907 sq. m., for and in consideration of his legal services to the latter. At the
time the document was executed, respondent knew that the abovementioned
properties were the subject of a civil case [Civil Case No. Q-15143] pending before
the Court of First Instance of Quezon City since he was acting as counsel for the

Fortunados in said case [See Annex "B" of Original Complaint, p. 12; Rollo, p. 16]. In
executing the document transferring one-half (1/2) of the subject properties to
himself, respondent violated the law expressly prohibiting a lawyer from
acquiring his client's property or interest involved in any litigation in which he
may take part by virtue of his profession [Article 1491, New Civil Code]. This Court
has held that the purchase by a lawyer of his client's property or interest in litigation is
a breach of professional ethics and constitutes malpractice [Hernandez v. Villanueva,
40 Phil. 774 (1920); Go Beltran v. Fernandez, 70 Phil. 248 (1940)].
However, respondent notes that Canon 10 of the old Canons of Professional Ethics,
which states that "[t]he lawyer should not purchase any interests in the subject matter
of the litigation which he is conducting," does not appear anymore in the new Code of
Professional Responsibility. He therefore concludes that while a purchase by a lawyer
of property in litigation is void under Art. 1491 of the Civil Code, such purchase is no
longer a ground for disciplinary action under the new Code of Professional
Responsibility.
This contention is without merit. The very first Canon of the new Code states that "a
lawyer shall uphold the Constitution, obey the laws of the land and promote respect
for law and legal process" (Emphasis supplied), Moreover, Rule 138, Sec. 3 of the
Revised Rules of Court requires every lawyer to take an oath to 44 obey the laws [of
the Republic of the Philippines] as well as the legal orders of the duly constituted
authorities therein." And for any violation of this oath, a lawyer may be suspended or
disbarred by the Supreme Court [Rule 138, Sec. 27, Revised Rules of Court]. All of
these underscore the role of the lawyer as the vanguard of our legal system. The
transgression of any provision of law by a lawyer is a repulsive and reprehensible act
which the Court will not countenance. In the instant case, respondent, having
violated Art. 1491 of the Civil Code, must be held accountable both to his client
and to society.
Parenthetically, it should be noted that the persons mentioned in Art. 1491 of the Civil
Code are prohibited from purchasing the property mentioned therein because of their
existing trust relationship with the latter. A lawyer is disqualified from acquiring by
purchase the property and rights in litigation because of his fiduciary
relationship with such property and rights, as well as with the client. And it
cannot be claimed that the new Code of Professional Responsibility has failed to
emphasize the nature and consequences of such relationship. Canon 17 states that
"a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust
and confidence reposed in him." On the other hand, Canon 16 provides that "a lawyer
shall hold in trust all moneys and properties of his client that may come into his
possession." Hence, notwithstanding the absence of a specific provision on the
matter in the new Code, the Court, considering the abovequoted provisions of the
new Code in relation to Art. 1491 of the Civil Code, as well as the prevailing
jurisprudence, holds that the purchase by a lawyer of his client's property in litigation
constitutes a breach of professional ethics for which a disciplinary action may be
brought against him.
Respondent's next contention that the transfer of the properties was not really
implemented, because the land development agreement on which the transfer

depended was later rescinded, is untenable. Nowhere is it provided in the Transfer of


Rights that the assignment of the properties of the Fortunados to respondent was
subject to the implementation of the land development agreement. The last paragraph
of the Transfer of Rights provides that:
... for and in consideration of the legal services of ATTY. RAMON A.
GONZALES, Filipino, married to Lilia Yusay, and a resident of 23 Sunrise
Hill, New Manila, Quezon City, rendered to our entire satisfaction, we hereby,
by these presents, do transfer and convey to the said ATTY. RAMON A.
GONZALES, his heirs, successor, and assigns, one-half (1/2) of our rights
and interests in the abovedescribed property, together with all the
improvements found therein [Annex D of the Complaint, Record, p. 28;
Emphasis supplied].
It is clear from the foregoing that the parties intended the transfer of the properties to
respondent to be absolute and unconditional, and irrespective of whether or not the
land development agreement was implemented.
Another misconduct committed by respondent was his failure to disclose to
complainant, at the time the land development agreement was entered into, that the
land covered by TCT No. T-1929 had already been sold at a public auction. The land
development agreement was executed on August 31, 1977 while the public auction
was held on June 30, 1971.
Respondent denies that complainant was his former client, claiming that his
appearance for the complainant in an anti-graft case filed by the latter against a
certain Gilbert Teodoro was upon the request of complainant and was understood to
be only provisional. Respondent claims that since complainant was not his client, he
had no duty to warn complainant of the fact that the land involved in their land
development agreement had been sold at a public auction. Moreover, the sale was
duly annotated at the back of TCT No. T-1929 and this, respondent argues, serves as
constructive notice to complainant so that there was no concealment on his part.
The above contentions are unmeritorious. Even assuming that the certificate of sale
was annotated at the back of TCT No. T-1929, the fact remains that respondent failed
to inform the complainant of the sale of the land to Samauna during the negotiations
for the land development agreement. In so doing, respondent failed to live up to the
rigorous standards of ethics of the law profession which place a premium on honesty
and condemn duplicitous conduct. The fact that complainant was not a former client
of respondent does not exempt respondent from his duty to inform complainant of an
important fact pertaining to the land which is subject of their negotiation. Since he was
a party to the land development agreement, respondent should have warned the
complainant of the sale of the land at a public auction so that the latter could make a
proper assessment of the viability of the project they were jointly undertaking. This
Court has held that a lawyer should observe honesty and fairness even in his private
dealings and failure to do so is a ground for disciplinary action against him [Custodio
v. Esto, Adm. Case No. 1113, February 22, 1978, 81 SCRA 517].

Complainant also charges respondent with submitting to the court falsified documents
purporting to be true copies of an addendum to the land development agreement.
Based on evidence submitted by the parties, the Solicitor General found that in the
document filed by respondent with the Court of First Instance of Quezon City, the
signatories to the addendum to the land development agreement namely, Ramon A.
Gonzales, Alfaro T. Fortunado, Editha T. Fortunado, Nestor T. Fortunado, and Angel L.
Bautistawere made to appear as having signed the original document on December
9, 1972, as indicated by the letters (SGD.) before each of their names. However, it
was only respondent Alfaro Fortunado and complainant who signed the original and
duplicate original (Exh. 2) and the two other parties, Edith Fortunado and Nestor
Fortunado, never did. Even respondent himself admitted that Edith and Nestor
Fortunado only signed the xerox copy (Exh. 2-A) after respondent wrote them on May
24, 1973, asking them to sign the said xerox copyattached to the letter and to send it
back to him after signing [Rejoinder to Complainant's Reply, pp. 4-6; Rollo, pp. 327329]. Moreover, respondent acknowledged that Edith and Nestor Fortunado had
merely agreed by phone to sign, but had not actually signed, the alleged true copy of
the addendum as of May 23, 1973 [Respondent's Supplemental Motion to Refer this
Case to the Integrated Bar of the Philippines, p. 16]. Thus, when respondent
submitted the alleged true copy of the addendum on May 23, 1973 as Annex "A" of
his Manifestation filed with the Court of First Instance of Quezon City, he knowingly
misled the Court into believing that the original addendum was signed by Edith
Fortunado and Nestor Fortunado. Such conduct constitutes willful disregard of his
solemn duty as a lawyer to act at all times in a manner consistent with the truth. A
lawyer should never seek to mislead the court by an artifice or false statement of fact
or law [Section 20 (d), Rule 138, Revised Rules of Court; Canon 22, Canons of
Professional Ethics; Canon 10, Rule 10.01, Code of Professional Responsibility].
Anent the first charge of complainant, the Solicitor General found that no impropriety
was committed by respondent in entering into a contingent fee contract with the
Fortunados [Report and Recommendation, p. 8; Record, p. 394]. The Court, however,
finds that the agreement between the respondent and the Fortunados, which provides
in part that:
We the [Fortunados] agree on the 50% contingent fee, provided,
you [respondent Ramon Gonzales] defray all expenses, for the suit,
including court fees.
[Annex A to the Complaint, Record, p. 4].
is contrary to Canon 42 of the Canons of Professional Ethics which provides that a
lawyer may not properly agree with a client to pay or bear the expenses of litigation.
[See also Rule 16.04, Code of Professional Responsibility]. Although a lawyer may in
good faith, advance the expenses of litigation, the same should be subject to
reimbursement. The agreement between respondent and the Fortunados, however,
does not provide for reimbursement to respondent of litigation expenses paid by him.
An agreement whereby an attorney agrees to pay expenses of proceedings to
enforce the client's rights is champertous [JBP Holding Corp. v. U.S. 166 F. Supp. 324
(1958)]. Such agreements are against public policy especially where, as in this case,

the attorney has agreed to carry on the action at his own expense in consideration of
some bargain to have part of the thing in dispute [See Sampliner v. Motion Pictures
Patents Co., et al., 255 F. 242 (1918)]. The execution of these contracts violates the
fiduciary relationship between the lawyer and his client, for which the former must
incur administrative sanctions.
The Solicitor General next concludes that respondent cannot be held liable for acting
as counsel for Eusebio Lopez, Jr. in Civil Case No. Q-15490 while acting as counsel
for the Fortunados against the same Eusebio Lopez, Jr. in Civil Case No. Q-15143.
The Court, after considering the record, agrees with the Solicitor General's findings on
the matter. The evidence presented by respondent shows that his acceptance of
Civil Case No. Q-15490 was with the knowledge and consent of the Fortunados.
The affidavit executed by the Fortunados on June 23, 1976 clearly states that they
gave their consent when respondent accepted the case of Eusebio Lopez, Jr.
[Affidavit of Fortunados, dated June 23, 1976; Rollo, p. 198]. One of the recognized
exceptions to the rule against representation of conflicting interests is where the
clients knowingly consent to the dual representation after full disclosure of the facts
by counsel [Canon 6, Canons of Professional Ethics; Canon 15, Rule 15.03, Code of
Professional Responsibility].
Complainant also claims that respondent filed several complaints against him before
the Court of First Instance and the Fiscal's Office of Quezon City for the sole purpose
of harassing him.
The record shows that at the time of the Solicitor General's investigation of this case,
Civil Case No. Q-18060 was still pending before the Court of First Instance of Quezon
City, while the complaints for libel (I.S. No. 76-5912) and perjury (I.S. No. 5913) were
already dismissed by the City Fiscal for insufficiency of evidence and lack of interest,
respectively [Report and Recommendation, pp. 16-17; Rollo, pp. 402-403]. The
Solicitor General found no basis for holding that the complaints for libel and perjury
were used by respondent to harass complainant. As to Civil Case No. Q-18060,
considering that it was still pending resolution, the Solicitor General made no finding
on complainants claim that it was a mere ploy by respondent to harass him. The
determination of the validity of the complaint in Civil Case No. Q-18060 was left to the
Court of First Instance of Quezon City where the case was pending resolution.
The Court agrees with the above findings of the Solicitor General, and accordingly
holds that there is no basis for holding that the respondent's sole purpose in filing the
aforementioned cases was to harass complainant.
Grounds 6, 8 and 9 alleged in the complaint need not be discussed separately since
the above discussion on the other grounds sufficiently cover these remaining
grounds.
The Court finds clearly established in this case that on four counts the respondent
violated the law and the rules governing the conduct of a member of the legal
profession. Sworn to assist in the administration of justice and to uphold the rule of
law, he has "miserably failed to live up to the standards expected of a member of the

Bar." [Artiaga v. Villanueva, Adm. Matter No. 1892, July 29, 1988, 163 SCRA 638,
647]. The Court agrees with the Solicitor General that, considering the nature of the
offenses committed by respondent and the facts and circumstances of the case,
respondent lawyer should be suspended from the practice of law for a period of six
(6) months.WHEREFORE, finding that respondent Attorney Ramon A. Gonzales
committed serious misconduct, the Court Resolved to SUSPEND respondent from
the practice of law for SIX (6) months effective from the date of his receipt of this
Resolution. Let copies of this Resolution be circulated to all courts of the country for
their information and guidance, and spread in the personal record of Atty.
Gonzales.SO ORDERED.

[A. C. No. 5305. March 17, 2003] MARCIANO P. BRION, JR., petitioner, vs.
FRANCISCO F. BRILLANTES, JR., respondent.

DECISION
QUISUMBING, J.:
In this petition for disbarment, complainant Marciano Brion, Jr., charges the
respondent, Atty. Francisco Brillantes, Jr., of having willfully violated a lawful order of
this Court in A.M. No. MTJ-92-706, entitled Lupo Almodiel Atienza v. Judge Francisco
F. Brillantes, Jr.[1] The decretal portion of our resolution in Atienza reads:
WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave
and retirement benefits and with prejudice to reappointment in any branch,
instrumentality or agency of the government, including government-owned and
controlled corporations. This decision is immediately executory.
SO ORDERED.[2]
Respondents dismissal in the aforesaid case was ordered after he was found
guilty of Gross Immorality and Appearance of Impropriety during his incumbency as
presiding judge of the Metropolitan Trial Court, Branch 20, Manila.
Petitioner now avers that respondent violated our decree of perpetual
disqualification imposed upon him from assuming any post in government
service, including any posts in government-owned and controlled corporations, when
he accepted a legal consultancy post at the Local Water Utilities Administration
(LWUA), from 1998 to 2000. Said consultancy included an appointment by LWUA as
6th member of the Board of Directors of the Urdaneta (Pangasinan) Water
District. Upon expiration of the legal consultancy agreement, this was subsequently
renewed as a Special Consultancy Agreement.
Petitioner contends that while both consultancy agreements contained a proviso
to the effect that nothing therein should be construed as establishing an employer-

employee relationship between LWUA and respondent, the inclusion of this proviso
was only a ploy to circumvent our order barring respondent from appointment to a
government agency. Petitioner points out in reality, respondent enjoys the same rights
and privileges as a regular employee, to wit:[3]
1. Issuance of LWUA properties such as a cellular phone with accessories, as
evidenced by the covering Property Issue Slips with respondent signing as
Accountable Employee;[4]
2. Official travel to various places in the country as shown by Reports of
Authorized Travel kept by LWUAs General Services Division[5]and Report of Travel
accomplished by respondent himself;[6]
3. Designation as supervising officer over other LWUA employees as brought to
light by written instructions personally signed by respondent;[7]
4. Attendance in water district conventions and meetings held in various
provinces;[8]
5. Membership in several sensitive LWUA committees such as
the Prequalification, Bids, and Awards Committee (PBAC), Build-Operate-Transfer
(BOT) Committee, among others, with receipt of corresponding honoraria as borne
out by various Disbursement Vouchers;[9]
6. Sitting at meetings of the LWUA Board of Trustees as evidenced by the
minutes of such meetings;[10] and
7. Receipt of Productivity Incentive Bonus in 1999.
Petitioner submits that all of the foregoing constitute deceitful conduct, gross
misconduct, and willful disobedience to a decree of this Court, and show that
respondent is unfit to be a member of the Bar.
In his comment,[11] respondent admits the existence of the Legal Consultancy
Contract as well as the Special Consultancy Contract.However, he raises the
affirmative defense that under Civil Service Commission (CSC) Memorandum
Circular No. 27, Series of 1993, services rendered pursuant to a consultancy contract
shall not be considered government services, and therefore, are not covered by Civil
Service Law, rules and regulations.
Further, says respondent, according to the same Memorandum Circular issued
by the Commission, consultancy contracts do not have to be submitted to the
Commission for approval. With respect to his designation as the 6th Member of the
Board of Directors of the Urdaneta Water District, respondent reasons out that the
same is not a reappointment, which is prohibited by our ruling in Atienza, as said
designation is not an organic appointment to a LWUA plantilla position. Hence,
according to respondent, the CSC need not pass approval upon his temporary
designation.
Respondent also argues that all the members of the Urdaneta Water District
Board, especially the 6th Member, who comes from the LWUA, assumed such
functions merely by virtue of a designation and only in addition to their regular
duties. In any event, says respondent, his designation as 6 th Member was revoked in
April 2000 and the Special Consultancy Contract was pre-terminated on April 30,

2000. It has never been renewed since then. With respect to his use of LWUA
properties, respondent admits receiving the cellular phone unit but insists that he
merely borrowed it from one Solomon Badoy, a former LWUA Board of Trustees
Member.
In our Resolution of February 19, 2001, we referred this case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation. The IBP
Commission on Bar Discipline found that respondent willfully violated a lawful order of
this Court and recommended that respondent be suspended from the practice of law
for one (1) year and fined ten thousand (P10,000) pesos.
There is no question that the LWUA is a government-owned and controlled
corporation, created by virtue of Presidential Decree No. 198.[12] As such, our
ruling in the Atienza case, A.M. No. MTJ-92-706, which categorically prohibits
respondents appointment to any position in any government-owned and
controlled corporation, clearly encompasses and extends to LWUA positions.
In the instant case the respondent does not deny the petitioners allegations.
[13]
Instead, he offers the existence of Memorandum Circular No. 27, Series of 1993
(MC No. 27, s. 1993) to exculpate himself from the charge against him. However, it
does not escape our attention that the very Memorandum Circular that respondent
cites before this Court provides that the duties enumerated in the consultancy
contract are mainly advisory in nature.[14]
Without belaboring the definition of advisory,[15] it appears obvious to us that the
tasks and duties that respondent performed pursuant to the consultancy contract
cannot, by any stretch of imagination, be deemed merely advisory in nature.
An adviser does not exercise supervisory powers over LWUA employees nor
does he issue written instructions to them. An adviser is not entitled to a seat in such
vital LWUA committees like PBAC and the BOT Committee. Also, respondents
continuous receipt of honoraria for sitting as a member of certain LWUA Committees,
particularly the BOT Committee, belies his claim that he is a mere consultant for the
LWUA. The evidence on record clearly shows that the LWUA Office Order
implementing National Compensation Circular No. 75-95 [16]refers to payments of
honoraria to officials/employees in consideration of services rendered.
Most telling, in our view, is respondents acceptance of his 1998 Productivity
Incentive Bonus (PIB). The Board of Trustees Resolution No. 26, Series of 1999, of
the LWUA,[17] which governed the release of the PIB, limited the entitlement to said
bonus only to officials and employees (permanent, temporary, casual, or contractual)
of LWUA.
In sum, we find that for all intents and purposes, respondent performed duties
and functions of a non-advisory nature, which pertain to a contractual employee of
LWUA. As stated by petitioner in his reply, [18] there is a difference between
a consultant hired on a contractual basis (which is governed by CSC M.C. No. 27, s.
1993) and a contractual employee (whose appointment is governed, among others,
by the CSC Omnibus Rules on Appointment and other Personnel Actions). By
performing duties and functions, which clearly pertain to a contractual
employee, albeit in the guise of an advisor or consultant, respondent has
transgressed both letter and spirit of this Courts decree in Atienza.

The lawyers primary duty as enunciated in the Attorneys Oath is to uphold the
Constitution, obey the laws of the land, and promote respect for law and legal
processes.[19] That duty in its irreducible minimum entails obedience to the legal
orders of the courts. Respondents disobedience to this Courts order prohibiting
his reappointment to any branch, instrumentality, or agency of government,
including government owned and controlled corporations, cannot be
camouflaged by a legal consultancy or a special consultancy contract. By
performing duties and functions of a contractual employee of LWUA, by way of a
consultancy, and receiving compensation and perquisites as such, he displayed acts
of open defiance of the Courts authority, and a deliberate rejection of his oath as
an officer of the court. It is also destructive of the harmonious relations that should
prevail between Bench and Bar, a harmony necessary for the proper administration of
justice. Such defiance not only erodes respect for the Court but also corrodes public
confidence in the rule of law.
What aggravates respondents offense is the fact that respondent is no ordinary
lawyer. Having served in the judiciary for eight (8) years, he is very well aware of the
standards of moral fitness for membership in the legal profession. His propensity to
try to get away with an indiscretion becomes apparent and inexcusable when he
entered into a legal consultancy contract with the LWUA. Perhaps realizing its own
mistake, LWUA terminated said contract with respondent, but then proceeded to give
him a special consultancy. This travesty could not be long hidden from public
awareness, hence the instant complaint for disbarment filed by petitioner. Given the
factual circumstances found by Commission on Bar Discipline, we have no hesitance
in accepting the recommendation of the Board of Governors, Integrated Bar of the
Philippines, that respondent be fined and suspended from the practice of law. The
Code of Professional Responsibility, Rule 1.01, provides that a lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct. For violating the Code as
well as transgressing his oath as an officer of the court, his suspension for one (1)
year and a fine of ten thousand (P10,000) pesos are in order.
WHEREFORE, respondent Atty. Francisco Brillantes, Jr., is found liable for
having willfully violated a lawful order of this Court in our decision of March
29, 1995 rendered in A.M. No. MTJ-92-706, entitled Lupo Almodiel Atienza vs. Judge
Francisco F. Brillantes, Jr.He is hereby SUSPENDED from the practice of law for one
(1) year and ordered to pay a FINE of Ten Thousand (P10,000.00) Pesos, with a
STERN WARNING that a repetition of the same or similar conduct shall be dealt with
more severely. Let a copy of this Decision be furnished to the Bar Confidant and the
Integrated Bar of the Philippines and spread on the personal records of respondent
as well as circulated to all courts in the Philippines. This decision is immediately
executory.
SO ORDERED.

when Magdalena gave birth to their child on September 4, 1973 in the Cebu
Community Hospital. He went to Cebu in December, 1973 for the baptism of his child.
A.M. No. 1608 August 14, 1981
MAGDALENA T. ARCIGA complainant,
vs.SEGUNDINO D. MANIWANG respondent.
Magdalena T. Arciga in her complaint of February 24, 1976 asked for the disbarment
of lawyer Segundino D. Maniwang (admitted to the Bar in 1975 ) on the ground of
grossly immoral conduct because he refused to fulfill his promise of marriage to her.
Their illicit relationship resulted in the birth on September 4, 1973 of their child,
Michael Dino Maniwang.
Magdalena and Segundino got acquainted sometime in October, 1970 at Cebu City.
Magdalena was then a medical technology student in the Cebu Institute of Medicine
while Segundino was a law student in the San Jose Recoletos College. They became
sweethearts but when Magdalena refused to have a tryst with Segundino in a motel in
January, 1971, Segundino stopped visiting her.
Their paths crossed again during a Valentine's Day party in the following month. They
renewed their relationship. After they had dinner one night in March, 1971 and finding
themselves alone (like Adam and Eve) in her boarding house since the other
boarders had gone on vacation, they had sexual congress. When Segundino asked
Magdalena why she had refused his earlier proposal to have sexual intercourse with
him, she jokingly said that she was in love with another man and that she had a child
with still another man. Segundino remarked that even if that be the case, he did not
mind because he loved her very much.
Thereafter, they had repeated acts of cohabitation. Segundino started telling his
acquaintances that he and Magdalena were secretly married.
In 1972 Segundino transferred his residence to Padada, Davao del Sur. He continued
his law studies in Davao City. .Magdalena remained in Cebu. He sent to her letters
and telegrams professing his love for her (Exh. K to Z).
When Magdalena discovered in January, 1973 that she was pregnant, she and
Segundino went to her hometown, Ivisan, Capiz, to apprise Magdalena's parents that
they were married although they were not really so. Segundino convinced
Magdalena's father to have the church wedding deferred until after he had passed the
bar examinations. He secured his birth certificate preparatory to applying for a
marriage license.
Segundino continued sending letters to Magdalena wherein he expressed his love
and concern for the baby in Magdalena's womb. He reassured her time and again
that he would marry her once he passed the bar examinations. He was not present

Segundino passed the bar examinations. The results were released on April 25, 1975.
Several days after his oath-taking, which Magdalena also attended, he stopped
corresponding with Magdalena. Fearing that there was something amiss, Magdalena
went to Davao in July, 1975 to contact her lover. Segundino told her that they could
not get married for lack of money. She went back to Ivisan.
In December, 1975 she made another trip to Davao but failed to see Segundino who
was then in Malaybalay, Bukidnon. She followed him there only to be told that their
marriage could not take place because he had married Erlinda Ang on November 25,
1975. She was broken-hearted when she returned to Davao.
Segundino followed her there and inflicted physical injuries upon her because she
had a confrontation with his wife, Erlinda Ang. She reported the assault to the
commander of the Padada police station and secured medical treatment in a hospital
(Exh. I and J).
Segundino admits in his answer that he and Magdalena were lovers and that he is the
father of the child Michael. He also admits that he repeatedly promised to marry
Magdalena and that he breached that promise because of Magdalena's shady past.
She had allegedly been accused in court of oral defamation and had already an
illegitimate child before Michael was born.
The Solicitor General recommends the dismissal of the case. In his opinion,
respondent's cohabitation with the complainant and his reneging on his promise of
marriage do not warrant his disbarment.
An applicant for admission to the bar should have good moral character. He is
required to produce before this Court satisfactory evidence of good moral character
and that no charges against him, involving moral turpitude, have been filed or are
pending in any court.
If good moral character is a sine qua non for admission to the bar, then the continued
possession of good moral character is also a requisite for retaining membership in the
legal profession. Membership in the bar may be terminated when a lawyer ceases to
have good moral character (Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for grossly immoral conduct, or by reason of his conviction
of a crime involving moral turpitude". A member of the bar should have moral integrity
in addition to professional probity.
It is difficult to state with precision and to fix an inflexible standard as to what is
"grossly immoral conduct" or to specify the moral delinquency and obliquity which
render a lawyer unworthy of continuing as a member of the bar. The rule implies that

what appears to be unconventional behavior to the straight-laced may not be the


immoral conduct that warrants disbarment.

disbarment for contracting a bigamous marriage, see Villasanta vs. Peralta, 101 Phil.
313).

Immoral conduct has been defined as "that conduct which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community" (7 C.J.S. 959).

(4) The conduct of Abelardo Simbol in making a dupe of Concepcion Bolivar by living
on her bounty and allowing her to spend for his schooling and other personal
necessities, while dangling before her the mirage of a marriage, marrying another girl
as soon as he had finished his studies, keeping his marriage a secret while continuing
to demand money from the complainant, and trying to sponge on her and persuade
her to resume their broken relationship after the latter's discovery of his perfidy are
indicative of a character not worthy of a member of the bar (Bolivar vs. Simbol, 123
Phil. 450).

Where an unmarried female dwarf possessing the intellect of a child became


pregnant by reason of intimacy with a married lawyer who was the father of six
children, disbarment of the attorney on the ground of immoral conduct was justified
(In re Hicks 20 Pac. 2nd 896).
There is an area where a lawyer's conduct may not be inconsonance with the canons
of the moral code but he is not subject to disciplinary action because his misbehavior
or deviation from the path of rectitude is not glaringly scandalous. It is in connection
with a lawyer's behavior to the opposite sex where the question of immorality usually
arises. Whether a lawyer's sexual congress with a woman not his wife or without the
benefit of marriage should be characterized as "grossly immoral conduct," will depend
on the surrounding circumstances.
This Court in a decision rendered in 1925, when old-fashioned morality still prevailed,
observed that "the legislator well knows the frailty of the flesh and the ease with which
a man, whose sense of dignity, honor and morality is not well cultivated, falls into
temptation when alone with one of the fair sex toward whom he feels himself
attracted. An occasion is so inducive to sin or crime that the saying "A fair booty
makes many a thief" or "An open door may tempt a saint" has become general."
(People vs. De la Cruz, 48 Phil. 533, 535).
Disbarment of a lawyer for grossly immoral conduct is illustrated in the following
cases:
(1) Where lawyer Arturo P. Lopez succeeded in having carnal knowledge of Virginia
C. Almirez, under promise of marriage, which he refused to fulfill, although they had
already a marriage license and despite the birth of a child in consequence of their
sexual intercourse; he married another woman and during Virginia's pregnancy,
Lopez urged her to take pills to hasten the flow of her menstruation and he tried to
convince her to have an abortion to which she did not agree. (Almirez vs. Lopez,
Administrative Case No. 481, February 28, 1969, 27 SCRA 169. See Sarmiento vs.
Cui, 100 Phil. 1102).
(2) Where lawyer Francisco Agustin made Anita Cabrera believe that they were
married before Leoncio V. Aglubat in the City Hall of Manila, and, after such fake
marriage, they cohabited and she later give birth to their child (Cabrera vs. Agustin,
106 Phil. 256).
(3) Where lawyer Jesus B. Toledo abandoned his lawful wife and cohabited with
another women who had borne him a child (Toledo vs. Toledo, 117 Phil. 768. As to

(5) Where Flora Quingwa, a public school teacher, who was engaged to lawyer
Armando Puno, was prevailed upon by him to have sexual congress with him inside a
hotel by telling her that it was alright to have sexual intercourse because, anyway,
they were going to get married. She used to give Puno money upon his request. After
she became pregnant and gave birth to a baby boy, Puno refused to marry her.
(Quingwa vs. Puno, Administrative Case No. 389, February 28, 1967, 19 SCRA 439).
(6) Where lawyer Anacleto Aspiras, a married man, misrepresenting that he was
single and making a promise of marriage, succeeded in having sexual intercourse
with. Josefina Mortel. Aspiras faked a marriage between Josefina and his own son
Cesar. Aspiras wrote to Josefina: "You are alone in my life till the end of my years in
this world. I will bring you along with me before the altar of matrimony." "Through thick
and thin, for better or for worse, in life or in death, my Josephine you will always be
the first, middle and the last in my life." (Mortel vs. Aspiras, 100 Phil. 586).
(7) Where lawyer Ariston Oblena, who had been having adulterous relations for fifteen
years with Briccia Angeles, a married woman separated from her husband, seduced
her eighteen-year-old niece who became pregnant and begot a child. (Royong vs.
Oblena, 117 Phil. 865).
The instant case can easily be differentiated from the foregoing cases. This case is
similar to the case of Soberano vs. Villanueva, 116 Phil. 1206, where lawyer Eugenio
V. Villanueva had sexual relations with Mercedes H. Soberano before his admission
to the bar in 1954. They indulged in frequent sexual intercourse. She wrote to him in
1950 and 1951 several letters making reference to their trysts in hotels.
On letter in 1951 contain expressions of such a highly sensual, tantalizing and vulgar
nature as to render them unquotable and to impart the firm conviction that, because
of the close intimacy between the complainant and the respondent, she felt no
restraint whatsoever in writing to him with impudicity.
According to the complainant, two children were born as a consequence of her long
intimacy with the respondent. In 1955, she filed a complaint for disbarment against
Villanueva.

This Court found that respondent's refusal to marry the complainant was not so
corrupt nor unprincipled as to warrant disbarment. (See Montana vs. Ruado,
Administrative Case No. 507, February 24, 1975, 62 SCRA 382; Reyes vs. Wong,
Administrative Case No. 547, January 29, 1975, 63 SCRA 667, Viojan vs. Duran, 114
Phil. 322; Abaigar vs. Paz, Administrative Case No. 997, September 10, 1979,93
SCRA 91).
Considering the facts of this case and the aforecited precedents, the complaint for
disbarment against the respondent is hereby dismissed.
SO ORDERED.
A.C. No. 6116

August 1, 2012

ENGR.
GILBERT
TUMBOKON, Complainant,
PEFIANCO, Respondent.

vs.ATTY.

MARIANO

R.

RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is an administrative complaint for disbarment filed by complainant
Engr. Gilbert Tumbokon against respondent Atty. Mariano R. Pefianco for grave
dishonesty, gross misconduct constituting deceit and grossly immoral conduct.
In his Complaint,1 complainant narrated that respondent undertook to give him 20%
commission, later reduced to 10%, of the attorney's fees the latter would receive in
representing Spouses Amable and Rosalinda Yap (Sps. Yap), whom he referred, in
an action for partition of the estate of the late Benjamin Yap (Civil Case No. 4986
before the Regional Trial Court of Aklan). Their agreement was reflected in a
letter2 dated August 11, 1995. However, respondent failed to pay him the agreed
commission notwithstanding receipt of attorney's fees amounting to 17% of the total
estate or about P 40 million. Instead, he was informed through a letter 3 dated July 16,
1997 that Sps. Yap assumed to pay the same after respondent had agreed to reduce
his attorney's fees from 25% to 17%. He then demanded the payment of his
commission4 which respondent ignored.
Complainant further alleged that respondent has not lived up to the high moral
standards required of his profession for having abandoned his legal wife, Milagros
Hilado, with whom he has two children, and cohabited with Mae FlorGalido, with
whom he has four children. He also accused respondent of engaging in moneylending
business5 without
the
required
authorization
from
the
BangkoSentralngPilipinas.
In his defense, respondent explained that he accepted Sps. Yap's case on a 25%
contingent fee basis, and advanced all the expenses. He disputed the August 11,
1995 letter for being a forgery and claimed that Sps. Yap assumed to pay

complainant's commission which he clarified in his July 16, 1997 letter. He, thus,
prayed for the dismissal of the complaint and for the corresponding sanction against
complainant's counsel, Atty. Florencio B. Gonzales, for filing a baseless complaint.6
In the Resolution7 dated February 16, 2004, the Court resolved to refer this
administrative case to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation. In his Report and Recommendation 8dated October 10,
2008, the Investigating IBP Commissioner recommended that respondent be
suspended for one (1) year from the active practice of law, for violation of the
Lawyer's Oath, Rule 1.01, Canon 1; Rule 7.03, Canon 7 and Rule 9.02, Canon 9 of
the Code of Professional Responsibility (Code). The IBP Board of Governors adopted
and approved the same in its Resolution No. XIX-2010-4539 dated August
28, 2010. Respondent moved for reconsideration10 which was denied in Resolution
No. XIX-2011-141 dated October 28, 2011.
After due consideration, We adopt the findings and recommendation of the IBP Board
of Governors.
The practice of law is considered a privilege bestowed by the State on those
who show that they possess and continue to possess the legal qualifications
for the profession. As such, lawyers are expected to maintain at all times a high
standard of legal proficiency, morality, honesty, integrity and fair dealing, and
must perform their four-fold duty to society, the legal profession, the courts and
their clients, in accordance with the values and norms embodied in the
Code.11 Lawyers may, thus, be disciplined for any conduct that is wanting of the
above standards whether in their professional or in their private capacity.
In the present case, respondent's defense that forgery had attended the execution of
the August 11, 1995 letter was belied by his July 16, 1997 letter admitting to have
undertaken the payment of complainant's commission but passing on the
responsibility to Sps. Yap. Clearly, respondent has violated Rule 9.02, 12 Canon 9 of
the Code which prohibits a lawyer from dividing or stipulating to divide a fee for legal
services with persons not licensed to practice law, except in certain cases which do
not obtain in the case at bar.
Furthermore, respondent did not deny the accusation that he abandoned his legal
family to cohabit with his mistress with whom he begot four children notwithstanding
that his moral character as well as his moral fitness to be retained in the Roll of
Attorneys has been assailed. The settled rule is that betrayal of the marital vow
of fidelity or sexual relations outside marriage is considered disgraceful and
immoral as it manifests deliberate disregard of the sanctity of marriage and the
marital vows protected by the Constitution and affirmed by our
laws.13Consequently, We find no reason to disturb the IBP's finding that respondent
violated the Lawyer's Oath14 and Rule 1.01, Canon 1 of the Code which proscribes a
lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct."

However, We find the charge of engaging in illegal money lending not to have been
sufficiently established.1wphi1 A "business" requires some form of investment and a
sufficient number of customers to whom its output can be sold at profit on a
consistent basis.15 The lending of money to a single person without showing that
such service is made available to other persons on a consistent basis cannot
be construed asindicia that respondent is engaged in the business of lending.
Nonetheless, while We rule that respondent should be sanctioned for his actions, We
are minded that the power to disbar should be exercised with great caution and only
in clear cases of misconduct that seriously affect the standing and character of the
lawyer as an officer of the court and as member of the bar,16 or the misconduct
borders on the criminal, or committed under scandalous circumstance, 17 which do not
obtain here. Considering the circumstances of the case, We deem it appropriate that
respondent be suspended from the practice of law for a period of one (1) year as
recommended.
WHEREFORE, respondent ATTY. MARIANO R. PEFIANCO is found GUILTY of
violation of the Lawyers Oath, Rule 1.01, Canon 1 of the Code of Professional
Responsibility and Rule 9.02, Canon 9 of the same Code andSUSPENDED from the
active practice of law ONE (1) YEAR effective upon notice hereof.
Let copies of this Resolution be entered in the personal record of respondent as a
member of the Philippine Bar and furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines and the Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.

10

future will be dealt with more severely, and ordering him to support his legitimate
family as a responsible parent should.
A.M. No. 3249 November 29, 1989
SALVACION
DELIZO
vs.
ATTY. LAURENCE D. CORDOVA, respondent.

The findings of the IBP Board of Governors may be summed up as follows:


CORDOVA, complainant,

RESOLUTION
PER CURIAM:
In an unsworn letter-complaint dated 14 April 1988 addressed to then Mr. Chief
Justice Claudio Teehankee, complainant Salvacion Delizo charged her husband, Atty.
Laurence D. Cordova, with immorality and acts unbecoming a member of the Bar.
The letter-complaint was forwarded by the Court to the Integrated Bar of the
Philippines, Commission on Bar Discipline ("Commission"), for investigation, report
and recommendation.
The Commission, before acting on the complaint, required complainant to submit a
verified complaint within ten (10) days from notice. Complainant complied and
submitted to the Commission on 27 September 1988 a revised and verified version of
her long and detailed complaint against her husband charging him with immorality
and acts unbecoming a member of the Bar.
In an Order of the Commission dated 1 December 1988, respondent was declared in
default for failure to file an answer to the complaint within fifteen (15) days from
notice. The same Order required complainant to submit before the Commission her
evidence ex parte, on 16 December 1988. Upon the telegraphic request of
complainant for the resetting of the 16 December 1988 hearing, the Commission
scheduled another hearing on 25 January 1989. The hearing scheduled for 25
January 1989 was rescheduled two (2) more times-first, for 25 February 1989 and
second, for 10 and 11 April 1989. The hearings never took place as complainant
failed to appear. Respondent Cordova never moved to set aside the order of default,
even though notices of the hearings scheduled were sent to him.
In a telegraphic message dated 6 April 1989, complainant informed the Commission
that she and her husband had already "reconciled". In an order dated 17 April 1989,
the Commission required the parties (respondent and complainant) to appear before
it for confirmation and explanation of the telegraphic message and required them to
file a formal motion to dismiss the complaint within fifteen (15) days from notice.
Neither party responded and nothing was heard from either party since then.
Complainant having failed to submit her evidence ex parte before the Commission,
the IBP Board of Governors submitted to this Court its report reprimanding
respondent for his acts, admonishing him that any further acts of immorality in the

Complainant and respondent Cordova were married on 6 June 1976 and out of this
marriage, two (2) children were born. In 1985, the couple lived somewhere in Quirino
Province. In that year, respondent Cordova left his family as well as his job as Branch
Clerk of Court of the Regional Trial Court, Cabarroguis, Quirino Province, and went to
Mangagoy, Bislig, Surigao del Sur with one Fely G. Holgado. Fely G. Holgado was
herself married and left her own husband and children to stay with respondent.
Respondent Cordova and Fely G. Holgado lived together in Bislig as husband and
wife, with respondent Cordova introducing Fely to the public as his wife, and Fely
Holgado using the name Fely Cordova. Respondent Cordova gave Fely Holgado
funds with which to establish a sari-sari store in the public market at Bislig, while at
the same time failing to support his legitimate family.
On 6 April 1986, respondent Cordova and his complainant wife had an apparent
reconciliation. Respondent promised that he would separate from Fely Holgado and
brought his legitimate family to Bislig, Surigao del Sur. Respondent would, however,
frequently come home from beerhouses or cabarets, drunk, and continued to neglect
the support of his legitimate family. In February 1987, complainant found, upon
returning from a trip to Manila necessitated by hospitalization of her daughter Loraine,
that respondent Cordova was no longer living with her (complainant's) children in their
conjugal home; that respondent Cordova was living with another mistress, one Luisita
Magallanes, and had taken his younger daughter Melanie along with him.
Respondent and his new mistress hid Melanie from the complinant, compelling
complainant to go to court and to take back her daughter byhabeas corpus. The
Regional Trial Court, Bislig, gave her custody of their children.
Notwithstanding respondent's promises to reform, he continued to live with Luisita
Magallanes as her husband and continued to fail to give support to his legitimate
family.
Finally the Commission received a telegram message apparently from complainant,
stating that complainant and respondent had been reconciled with each other.
After a review of the record, we agree with the findings of fact of the IBP Board. We
also agree that the most recent reconciliation between complainant and respondent,
assuming the same to be real, does not excuse and wipe away the misconduct and
immoral behavior of the respondent carried out in public, and necessarily adversely
reflecting upon him as a member of the Bar and upon the Philippine Bar itself. An
applicant for admission to membership in the bar is required to show that he is
possessed of good moral character. That requirement is not exhausted and
dispensed with upon admission to membership of the bar. On the contrary, that
requirement persists as a continuing condition for membership in the Bar in good
standing.

11

In Mortel v. Aspiras, 1 this Court, following the rule in the United States, held that "the
continued possession ... of a good moral character is a requisite condition for the
rightful continuance in the practice of the law ... and its loss requires suspension or
disbarment, even though the statutes do not specify that as a ground for disbarment.
" 2 It is important to note that the lack of moral character that we here refer to as
essential is not limited to good moral character relating to the discharge of the duties
and responsibilities of an attorney at law. The moral delinquency that affects the
fitness of a member of the bar to continue as such includes conduct that outrages the
generally accepted moral standards of the community, conduct for instance, which
makes "a mockery of the inviolable social institution or marriage." 3 In Mortel, the
respondent being already married, wooed and won the heart of a single, 21-year old
teacher who subsequently cohabited with him and bore him a son. Because
respondent's conduct in Mortel was particularly morally repulsive, involving the
marrying of his mistress to his own son and thereafter cohabiting with the wife of his
own son after the marriage he had himself arranged, respondent was disbarred.
In Royong v. Oblena, 4 the respondent was declared unfit to continue as a member of
the bar by reason of his immoral conduct and accordingly disbarred. He was found to
have engaged in sexual relations with the complainant who consequently bore him a
son; and to have maintained for a number of years an adulterous relationship with
another woman.
In the instant case, respondent Cordova maintained for about two (2) years an
adulterous relationship with a married woman not his wife, in full view of the general
public, to the humiliation and detriment of his legitimate family which he, rubbing salt
on the wound, failed or refused to support. After a brief period of "reform" respondent
took up again with another woman not his wife, cohabiting with her and bringing along
his young daughter to live with them. Clearly, respondent flaunted his disregard of the
fundamental institution of marriage and its elementary obligations before his own
daughter and the community at large.
WHEREFORE, the Court Resolved to SUSPEND respondent from the practice of law
indefinitely and until farther orders from this Court. The Court will consider lifting his
suspension when respondent Cordova submits proof satisfactory to the Commission
and this Court that he has and continues to provide for the support of his legitimate
family and that he has given up the immoral course of conduct that he has clung to.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento,

12

Aggrieved, Ferraren filed with the Sandiganbayan in Criminal Case 25665 a

EN BANC

complaint against Atty. Pactolin for falsification of public document.[1] On November


RE: SC DECISION DATED A.C. No. 7940
MAY 20, 2008 IN G.R. NO. 161455
UNDER RULE 139-B OF THE
RULES OF COURT, Present:
ATTY. RODOLFO D. PACTOLIN,
Respondent. Promulgated:

12, 2003 the Sandiganbayan found Atty. Pactolin guilty of falsification under Article

April 24, 2012


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

in case of insolvency.

172 and sentenced him to the indeterminate penalty of imprisonment of 2 years and 4
months of prision correccional as minimum to 4 years, 9 months and 10 days
of prision correccional as

maximum,

to

suffer

all

the

accessory

penalties

of prision correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment

Atty. Pactolin appealed to this Court but on May 20, 2008 it affirmed his

DECISION

conviction.[2] Since the Court treated the matter as an administrative complaint against

PER CURIAM:

him as well under Rule 139-B of the Rules of Court, it referred the case to the
Integrated Bar of the Philippines (IBP) for appropriate action.

This case resolves the question of whether or not the conviction of a lawyer
for a crime involving moral turpitude constitutes sufficient ground for his disbarment
from the practice of law under Section 27, Rule 138 of the Rules of Court.

Because complainant Ferraren neither appeared nor submitted any pleading


during the administrative proceedings before the IBP Commission on Bar Discipline,
on October 9, 2010 the IBP Board of Governors passed Resolution XIX-2010-632,

The Facts and the Case

adopting

and

approving

the

Investigating

Commissioners

Report

and

Recommendation that the case against Atty. Pactolin be dismissed for insufficiency of
In

May

1996,

Elmer

Abastillas,

the

playing

coach

of

evidence.

the Ozamis City volleyball team, wrote Mayor Benjamin A. Fuentes ofOzamis City,
requesting financial assistance for his team. Mayor Fuentes approved the request

The Issue Presented

and sent Abastillas letter to the City Treasurer for processing. Mayor Fuentes also
designated Mario R. Ferraren, a city council member, as Officer-in-Charge (OIC) of
the city while Mayor Fuentes was away. Abastillas eventually got the P10,000.00

The only issue presented in this case is whether or not Atty. Pactolin should
be disbarred after conviction by final judgment of the crime of falsification.

assistance for his volleyball team.


The Courts Ruling
Meanwhile,

respondent

lawyer,

Atty.

Rodolfo

D.

Pactolin,

then

a Sangguniang Panlalawigan member of Misamis Occidental, got a photocopy of

In his pleadings before the Commission on Bar Discipline, Atty. Pactolin

Abastillas letter and, using it, filed on June 24, 1996 a complaint with the Office of the

reiterated the defenses he raised before the Sandiganbayan and this Court in the

Deputy Ombudsman-Mindanao against Ferraren for alleged illegal disbursement

falsification case. He claims that the Court glossed over the facts, that its decision

of P10,000.00 in public funds. Atty. Pactolin attached to the complaint a copy of what

and referral to the IBP was factually infirmed [3] and contained factual exaggerations

he claimed was a falsified letter of Abastillas, which showed that it was Ferraren, not

and patently erroneous observation,[4] and was too adventurous.[5]

Mayor Fuentes, who approved the disbursement.

13

To recapitulate, this Court upheld the finding of the Sandiganbayan that the
copy of Abastillas letter which Atty. Pactolin attached to his complaint was

Court has also consistently pronounced that disbarment is the appropriate penalty for
conviction by final judgment for a crime involving moral turpitude.[11]

spurious. Given the clear absence of a satisfactory explanation regarding his


possession and use of the falsified Abastillas letter, this Court held that the

Here, Atty. Pactolins disbarment is warranted. The Sandiganbayan has

Sandiganbayan did not err in concluding that it was Atty. Pactolin who falsified

confirmed that although his culpability for falsification has been indubitably

the letter. This Court relied on the settled rule that in the absence of

established, he has not yet served his sentence. His conduct only exacerbates his

satisfactory explanation, one found in possession of and who used a forged

offense and shows that he falls short of the exacting standards expected of him as a

document is the forger and therefore guilty of falsification.

[6]

vanguard of the legal profession.[12]

This Courts decision in said falsification case had long become final and

This Court once again reminds all lawyers that they, of all classes and

executory. In In Re: Disbarment of Rodolfo Pajo,[7]the Court held that in disbarment

professions, are most sacredly bound to uphold the law. [13] The privilege to practice

cases, it is no longer called upon to review the judgment of conviction which has

law is bestowed only upon individuals who are competent intellectually, academically

become final.The review of the conviction no longer rests upon this Court.

and, equally important, morally. As such, lawyers must at all times conduct
themselves, especially in their dealings with their clients and the public at large, with

Under Section 27, Rule 138 of the Rules of Court, a lawyer may be

honesty and integrity in a manner beyond reproach.[14]

removed or suspended on the following grounds: (1) deceit; (2) malpractice; (3) gross
misconduct in office; (4) grossly immoral conduct; (5) conviction of a crime involving

WHEREFORE, Atty. Rodolfo D. Pactolin is hereby DISBARRED and his

moral turpitude; (6) violation of the lawyers oath; (7) willful disobedience of any lawful

name REMOVED from the Rolls of Attorney.Let a copy of this decision be attached to

order of a superior court; and (8) corruptly or willfully appearing as a lawyer for a party

his personal records and furnished the Office of the Bar Confidant, Integrated Bar of

to a case without authority so to do.

thePhilippines and the Office of the Court Administrator for circulation to all courts in
the country.

This Court has ruled that the crime of falsification of public document
is contrary to justice, honesty, and good morals and, therefore, involves moral

SO ORDERED.

[8]

turpitude. Moral turpitude includes everything which is done contrary to justice,


honesty, modesty, or good morals. It involves an act of baseness, vileness, or
depravity in the private duties which a man owes his fellowmen, or to society in
general, contrary to the accepted and customary rule of right and duty between man
and woman, or conduct contrary to justice, honesty, modesty, or good morals.[9]
Having said that, what penalty should be imposed then on Atty. Pactolin?
As a rule, this Court exercises the power to disbar with great caution. Being
the most severe form of disciplinary sanction, it is imposed only for the most
imperative reasons and in clear cases of misconduct affecting the standing and moral
character of the lawyer as an officer of the court and a member of the bar. [10] Yet this

14

April 7, 1922
In Re MARCELINO LONTOK
MALCOLM, J.:
The Attorney-General asks that an order issue for the removal of Marcelino Lontok
from his office of lawyer in the Philippine Islands, because of having been convicted
of the crime of bigamy. The respondent lawyer, in answer, prays that the charges be
dismissed, and bases his plea principally on a pardon issued to him by former
Governor-General Harrison.
Marcelino Lontok was convicted by the Court of First Instance of Zambales of the
crime of bigamy. This judgement was affirmed on appeal to the Supreme Court, while
a further attempt to get the case before the United States Supreme Court was
unsuccessful. On February 9, 1921, a pardon was issued by the Governor-General of
the following tenor:
By virtue of the authority conferred upon me by the Philippine Organic Act on
August 29, 1916, the sentence in the case of Marcelino Lontok convicted by
the Court of First Instance of Zambales of bigamy and sentenced on
February 27, 1918, to imprisonment for eight years, to suffer the accessory
penalties prescribed by law, and to pay the costs of the proceedings, which
sentence was, on September 8, 1919, confirmed by the Supreme Court is
hereby remitted, on condition that he shall not again be guilty of any
misconduct.
The particular provision of the Code of Civil Procedure, upon which the AttorneyGeneral relies in asking for the disbarment of Attorney Lontok, provides that a
member of the bar may be removed or suspended form his office of lawyer by the
Supreme Court "by reason of his conviction of a crime involving moral
turpitude." (Sec. 21) That conviction of the crime of bigamy involves moral turpitude,
within the meaning of the law, cannot be doubted. The debatable question relates to
the effect of the pardon by the Governor-General. On the one hand, it is contended by
the Government that while the pardon removes the legal infamy of the crime, it cannot
wash out the moral stain; on the other hand, it is contended by the respondent that
the pardon reaches the offense for which he was convicted and blots it out so that he
may not be looked upon as guilty of it.
The cases are not altogether clear as to just what effect a pardon has on the right of a
court of disbar an attorney for conviction of a felony. On close examination, however,
it will be found that the apparent conflict in the decisions is more apparent than real,
and arises from differences in the nature of the charges on which the proceedings to
disbar are based. Where preceedings to strike an attorney's name from the rolls are
founded on, and depend alone, on a statute making the fact of a conviction for a

felony ground for disbarment, it has been held that a pardon operates to wipe out the
conviction and is a bar to any proceeding for the disbarment of the attorney after the
pardon has been granted. (In re Emmons [1915], 29 Cal. App., 121; Scott vs. State
[1894], 6 Tex. Civ. App., 343). But where proceedings to disbar an attorney are
founded on the professional misconduct involved in a transaction which has
culminated in a conviction of felony, it has been held that while the effect of the
pardon is to relieve him of the penal consequences of his act, it does not operate as a
bar to the disbarment proceedings, inasmuch as the criminal acts may nevertheless
constitute proof that the attorney does not possess a good moral character and is not
a fit or proper person to retain his license to practice law. (People vs. Burton [1907],
39 Colo., 164; People vs. George [1900],186 Ill., 122; Nelson vs. Com. [1908],128
Ky., 779; Case of In re [1881],86 N.Y., 563.)
The celebrated case of Ex parte Garland [1866], 4 Wall., 380, is directly in point. The
petitioner in this case applied for a license to practice law in the United States courts,
without first taking an oath to the effect that he had never voluntarily given aid to any
government hostile to the United States, as required by statute. The petitioner, it
seems, had been a member of the Conferate Congress, during the secession of the
South, but had been pardons by the President of the United States. It was held, buy a
divided court, that to exclude the petitioner from the practice of law for the offense
named would be to enforce a punishment for the offense, notwithstanding the pardon
which the court had no right to do; and the opinion of the court, in part, said:
A pardon reaches both the punishment prescribed for the offense and the
guilt of the offender; and when the pardon is full, it releases the punishment
and blots out of existence the guilt, so that in the eye of the law the offender
is an innocent as if he had never committed the offense. If granted before
conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the
penalties and disabilities, and restores him to all his civil rights; it makes him,
as it were, a new man, and gives him a new credit and capacity.
There is only this limitation to its operation; it does not restore offices
forfeited, or property or interest vested in others in consequence of the
conviction and judgement.
Although much which is contained in the opinion of the four dissenting justices, in the
Garland case, appeals powerfully to the minds of the court, we feel ourselves under
obligation to follow the rule laid down by the majority decision of the higher court. We
do this with the more grace when we recall that according to the article 130 of the
Penal Code, one of the different ways by which criminal liability is extinguished is by
pardon. We must also remember that the motion for disbarment is based solely on
the judgement of conviction for a crime of which the respondent has been pardoned,
We must also remember that the motion for disbarment is based solely on the
judgment of conviction for crime of which the respondent has been pardoned, and
that the language of the pardon is not such as to amount to a conditional pardon
similar in nature to a parole. It may be mentioned however, in this connection, that if
Marcelino Lontok should again be guilty of any misconduct, the condition of his
pardon would be violated, and he would then become subject to disbarment.

15

It results, therefore, that the petition of the Attorney-General cannot be granted, and
that the proceedings must be dismissed. Costs shall be taxed as provided by section
24 of the Code of Civil Procedure. So ordered.

16

disbarment, it has been held that a pardon operates to wipe out the conviction and is
a bar to any proceeding for the disbarment of the attorney after the pardon has been
granted."
A.M. No. L-363

July 31, 1962

IN RE: DISBARMENT
GUTIERREZ, respondent.

PROCEEDINGS

Victoriano
A.
Nestor M. Andrada for respondent.

Savellano

AGAINST

ATTY.

for

DIOSDADO

Q.

complaint.

MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it
on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of
Oriental Mindoro he was convicted of the murder of Filemon Samaco, former
municipal mayor of Calapan, and together with his co-conspirators was sentenced to
the penalty of death. Upon review by this Court the judgment of conviction was
affirmed on June 30, 1956 (G.R. No. L-17101), but the penalty was changed
to reclusion perpetua. After serving a portion of the sentence respondent was granted
a conditional pardon by the President on August 19, 1958. The unexecuted portion of
the prison term was remitted "on condition that he shall not again violate any of the
penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the murder
case, filed a verified complaint before this Court praying that respondent be removed
from the roll of lawyers pursuant to Rule 127, section 5. Respondent presented his
answer in due time, admitting the facts alleged by complainant regarding pardon in
defense, on the authority of the decision of this Court in the case of In re Lontok, 43
Phil. 293.
Under section 5 of Rule 127, a member of the bar may be removed suspended from
his office as attorney by the Supreme Court by reason of his conviction of a crime
insolving moral turpitude. Murder is, without doubt, such a crime. The term "moral
turpitude" includes everything which is done contrary to justice, honesty, modesty or
good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it
means an act of baseness, vileness, or depravity in the private and social duties
which a man owes to his fellowmen or to society in general, contrary to the accepted
rule of right and duty between man and man. State ex rel. Conklin v. Buckingham, 84
P. 2nd 49; 5 Am. Jur. Sec. 279. pp. 428-429.
The only question to be resolved is whether or not the conditional pardon extended to
respondent places him beyond the scope of the rule on disbarment aforecited.
Reliance is placed by him squarely on the Lontok case. The respondent therein was
convicted of bigamy and thereafter pardoned by the Governor-General. In a
subsequent viction, this Court decided in his favor and held: "When proceedings to
strike an attorney's name from the rolls the fact of a conviction for a felony ground for

It is our view that the ruling does not govern the question now before us. In making it
the Court proceeded on the assumption that the pardon granted to respondent Lontok
was absolute. This is implicit in the ratio decidendi of the case, particularly in the
citations to support it, namely. In Re Emmons, 29 Cal. App. 121; Scott vs. State, 6
Tex. Civ. App. 343; and Ex parte Garland, 4 Wall, 380. Thus in Scott vs. State the
court said:
We are of opinion that after received an unconditional pardon the record of
the felony conviction could no longer be used as a basis for the proceeding
provided for in article 226. The record, when offered in evidence, was met
with an unconditional pardon, and could not, therefore, properly be said to
afford "proof of a conviction of any felony." Having been thus cancelled, all
its force as a felony conviction was taken away. A pardon falling short of this
would not be a pardon, according to the judicial construction which that act
of executive grace was received. Ex parte Garland, 4 Wall, 344; Knote v.
U.S., 95 U.S. 149, and cases there cited; Young v. Young, 61 Tex. 191.
And the portion of the decision in Ex parte Garland quoted with approval in the Lontok
case is as follows:
A pardon reaches both the punishment prescribed for the offense and the
guilt of the offender; and when the pardon is full, it releases the punishment
and blots out the existence of guilt, so that in the eye of the law the offender
is as innocent as if he had never committed the offense. It granted before
conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the
penalties and disabilities, and restores him to all his civil rights it makes him,
as it were, a new man, and gives him a new credit and capacity.
The pardon granted to respondent here is not absolute but conditional, and merely
remitted the unexecuted portion of his term. It does not reach the offense itself, unlike
that in Ex parte Garland, which was "a full pardon and amnesty for all offense by him
committed in connection with rebellion (civil war) against government of the United
States."
The foregoing considerations rendered In re Lontok are inapplicable here.
Respondent Gutierrez must be judged upon the fact of his conviction for murder
without regard to the pardon he invokes in defense. The crime was qualified by
treachery and aggravated by its having been committed in hand, by taking advantage
of his official position (respondent being municipal mayor at the time) and with the use
of motor vehicle. People vs. Diosdado Gutierrez, supra. The degree of moral turpitude
involved is such as to justify his being purged from the profession.

17

The practice of law is a privilege accorded only to those who measure up to certain
rigid standards of mental and moral fitness. For the admission of a candidate to the
bar the Rules of Court not only prescribe a test of academic preparation but require
satisfactory testimonials of good moral character. These standards are neither
dispensed with nor lowered after admission: the lawyer must continue to adhere to
them or else incur the risk of suspension or removal. As stated in Ex parte Wall, 107
U.S. 263, 27 Law ed., 552, 556: "Of all classes and professions, the lawyer is most
sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men
in the world, to repudiate and override the laws, to trample them under foot and to
ignore the very bonds of society, argues recreancy to his position and office and sets
a pernicious example to the insubordinate and dangerous elements of the body
politic.
WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of the
crime for which respondent Diosdado Q. Gutierrez has been convicted, he is ordered
disbarred and his name stricken from the roll of lawyers.
Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ.,
concur.

18

A.M. No. 439 September 30, 1982


IN RE: QUINCIANO D. VAILOCES
ESCOLIN, J.:
This is a petition filed by Quinciano D. Vailoces for readmission to the practice of law
and the inclusion of his name in the roll of attorneys.
The records disclose that the Court of First Instance of Negros Oriental in a decision
promulgated on September 30, 1955 found petitioner guilty of falsification of public
document, penalized under Article 117 of the Revised Penal Code, and imposed on
him an indeterminate sentence ranging from 2 years, 4 months and 1 day of prision
mayor, as minimum, to 8 years and 1 day of prision mayor, as maximum, with the
accessory penalties to the law, plus fine and costs. In its decision the court found that
petitioner, as a member of the bar and in his capacity as a notary public,
aknowledged the execution of a document purporting to be the last will and testament
of one Tarcila Visitacion de Jesus. Presented for probate before the Court of First
Instance of Negros Oriental, the genuineness of the document was impugned by the
forced heirs of the alleged testatrix, and the court, finding that the document was a
forgery, denied probate to the will.
On appeal, the Court of Appeals affirmed the verdict of conviction; and upon finality
thereof, petitioner commenced service of the sentence.
Thereafter, Ledesma de Jesus-Paras, complainant in the criminal case, instituted
before this Court disbarment proceedings against petitioner. The same culminated in
his disbarment on April 12, 1961. 1
On December 27, 1967, the President of the Philippines granted petitioner "absolute
and unconditional pardon" and restored him "to full civil and political rights. 2
Since August 23, 1968, petitioner had repeatedly sought readmission to the practice
of law, the first of which was denied by this Court in a minute resolution dated August
30, 1968.
On February 27, 1970, petitioner reiterated his plea, but consideration thereof was
deferred "until after the integration of the bar has been effected." 3
On December 12, 1977, he filed another petition, attaching thereto copies, among
others, of the following documents, to wit: the resolution of the Negros Oriental Bar
Association signed by 78 members thereof, indorsing his plea for reinstatement 4 ; the
certificate of the mayor of the municipality of Bindoy, Negros Oriental, where
petitioner has been residing, to the effect that the latter "is a person of exemplary

moral character, a peace-loving and law-abiding citizen 5 a certification of Governor


William B. Villegas of Negros Oriental, attesting to the fact that since the grant of
absolute pardon to petitioner, "he has comported himself as a morally straight and
respectable citizen and that he has been active and has cooperated in civic and
social undertakings, sincere and honest in his desire to lead a decent and dignified
life" 6 ; the certification of Dean Eduardo G. Flores of the College of Law, Siliman
University, vouching to petitioner's "honest, upright and moral life ... and because of
his conduct he has earned the sympathy of the people of the community and
regained the confidence of the people and of his other associates: 7 the statement of
Atty. Alexander G. Amor, former president of the Negros Oriental Chapter of the
Integrated Bar of the Philippines, certifying "that Mr. Quinciano D. Vailoces ... is a
person of good moral character, whose integrity is beyond question" 8 ; and the
clearance certificates issued by Judge Romeo R. Solis of the City Court of
Dumaguete, Provincial Fiscal Andrew S. Namukatkat of Negros Oriental, and City
Fiscal Pablo E. Cabahug of Dumaguete City, to the effect that petitioner "is a person
of good moral character" and that since his release from the national penitentiary he
"has never been accused or convicted of any crime involving moral turpitude." 9
When asked to comment, the Integrated Bar of the Philippines, through its then
president, Atty. Marcelo D. Fernan, favorably indorsed petitioner's request for
reinstatement.
On February 13, 1978, Ledesma de Jesus-Paras, complainant in the original
disbarment proceedings, filed an opposition to the petitions for reinstatement; and this
was followed by a telegram of Nicanor Vailoces, barangay captain of Domolog,
Bindoy, Negros, Oriental, addressed to his Excellency, President Ferdinand E.
Marcos, and referred to this Court, opposing petitioner's readmission to the bar "on
grounds of his non-reformation, immoral conduct and pretensions of being a licensed
lawyer."
Anent these oppositions, the Integrated Bar of the Philippines, through Atty. Fernan,
made the following observations:
By resolution of the Court En Banc dated August 24, 1978, the
following matters have been referred to the Integrated Bar for
comment:
(1) The opposition of complainant Ledesma de
Jesus-Paras to respondent's petition and
supplementary petition for reinstatement in the
roll of attorneys; and
(2) The telegram dated February 16, 1978 of
Nicanor Vailoces, Barangay Captain of Domolog,
Bindoy, Negros Oriental, addressed to his
Excellency Ferdinand E. Marcos, requesting the
Office of the President to oppose the petition of

19

Quinciano Vailoces for reinstatement in the Roll


of Attorneys on grounds stated therein.
It may be recalled that on January 17, 1978, the Board of Governors of the
Integrated Bar transmitted to the Honorable Supreme Court for its favorable
consideration the above stated petition for reinstatement.
Subsequent to its being served with a copy of the resolution of the Supreme
Court, the Integrated Bar received a petition dated February 14, 1978 signed
by 'the people of the Municipality of Bindoy, Province of Negros Oriental'
vehemently opposing the reinstatement of Mr. Vailoces in the Roll of
Attorneys. On October 5, 1978 the President of the Integrated Bar wrote to
Mr. Vailoces asking him to comment on the above mentioned petitions and
telegram.
This Office is now in receipt of Mr. Vailoces' comment dated November 3,
1978, which is being forwarded herewith to the Honorable Supreme Court
together with other pertinent papers.
It is believed that Mr. Vailoces' comment is a satisfactory answer to the
adverse allegations and charges which have been referred to him. The
charges of immorality (publicly maintaining a querida) and gambling are
general statements devoid of particular allegations of fact and may well be
disregarded. Then, too, the Municipal Mayor of Bindoy, Negros Oriental namely, Mr. Jesus A. Mana-ay - who tops the list of persons who have
signed the February 14, 1978 petition vehemently opposing the
reinstatement of Mr. Vailoces, appears to be the very same official who on
October 25, 1977 issued a Certification to the effect that Mr. Vailoces 'is
personally known to me as a person of exemplary character, a peace loving
and law abiding citizen' and that 'he is cooperative in all our civic and social
activities and that he is one of our respectable citizens in our community.'
That this official should now sign a petition containing statements exactly
opposite in thrust and tenor is very intriguing, to say the least, and it is not
altogether difficult to believe Mr. Vailoces' imputations of politics in the
conduct of Mayor Mana-ay.
As for the opposition of Mrs. Ledesma de Jesus-Paras, the alleged absence
of remorse on the part of Mr. Vailoces, and his alleged belligerence and
display of open defiance and hostility, etc. are matters so subjective in
character that her general allegations and charges in this regard cannot be
properly considered. It is significant that Mr. Vailoces in his comment states:
"If she is indeed that much desperately so in need of cash assistance,
considering really that she is an old woman being recently widowed the
second time, for her satisfaction and as a gesture of goodwill, I am willing to
assist her but only with a modest amount because I am only a small farmer
with still three college students to support."

Regarding the telegram dated February 16, 1978 of one Nicanor Vailoces
stating as grounds for denial of Mr. Quinciano D. Vailoces' petition for
reinstatement the alleged 'grounds of non-reformation, immoral conduct and
pretensions of being a licensed lawyer by soliciting cases,' there is such a
lack of specificity and particularity in such statement of grounds that
one is at a loss as to how a person in the place of Mr. Quinciano D.
Vailoces could properly defend himself against such charges.
Thus, the Integrated Bar of the Philippines reaffirmed its indorsement of petitioner's
"reinstatement in the rolls of attorneys."
This Court likewise referred the oppositions interposed by Mrs. Ledesma de JesusParas and Nicanor Vailoces to the Solicitor General for investigation and
recommendation; and on August 4, 1982, the latter, after conducting an investigation,
submitted his report, recommending that "Quinciano D. Vailoces be reinstated in the
roll of attorneys upon taking his oath anew of the corresponding oath of office."
The Court sustains the conclusion of the Solicitor General that petitioner has
sufficiently proven himself fit to be readmitted to the practice of law. True it is that the
plenary pardon extended to him by the President does not of itself warrant his
reinstatement.
Evidence of reformation is required before applicant is entitled to
reinstatement, notwithstanding the attorney has received a pardon following
his conviction, and the requirements of reinstatement had been held to be
the same as for original admission to the bar, except that the court may
require a greater degree of proof than in an original evidence [7 C.J.S.
Attorney & Client, Sept. 41, p. 815]
The decisive question on an application for reinstatement is whether
applicant is 'of good moral character' in the sense in which that phrase is
used when applied to attorneys-at-law and is a fit and proper person to be
entrusted with the privileges of the office of an attorney ... [7 C.J.S. Attorney
& Client, Sept. 41, p. 816].
Petitioner's conduct after disbarment can stand searching scrutiny. He has regained
the respect and confidence of his fellow attorneys as well as of the citizens of his
community. The favorable indorsements of both the Integrated Bar of the Philippines
and its Negros Oriental Chapter, the testimonials expressed in his behalf by the
provincial governor of Negros Oriental as well as the municipal and barrio officials of
Bindoy, Negros Oriental, his active participation in civic and social undertakings in the
community attest to his moral reform and rehabilitation and justify his reinstatement.
Petitioner, now 69 years of age, has reached the twilight of his life. He has been
barred from the practice of his profession for a period of 21 years. Adequate
punishment has been exacted.
Chastened by his painful and humiliating experience, he further "pledges with all his
honor ... that if reinstated in the roll of attorneys he will surely and consistently

20

conduct himself honestly, uprightly and worthily." Indeed, there is reasonable


expectation that he will endeavor to lead an irreproachable life and maintain steadfast
fidelity to the lawyer's oath.
WHEREFORE, petitioner Quinciano D. Vailoces is hereby ordered reinstated in the
roll of attorneys.

21

Roberto Ferrer, employed as sales manager of Matiao Marketing, Inc. The


complainant was furnished documents to support her assumed
identity.1wphi1.nt

A.C. No. 5118 September 9, 1999


(A.C. CBD No. 97-485)
MARILOU
vs.
ATTY. DOROTHEO CALIS, respondent.

SEBASTIAN, complainant,

Realizing that she will be travelling with spurious documents, the


complainant demanded the return of her money, however she was assured
by respondent that there was nothing to worry about for he has been
engaged in the business for quite sometime; with the promise that her
money will be refunded if something goes wrong.
Weeks before her departure respondent demanded for the payment of the
required fee which was paid by complainant, but the corresponding receipt
was not given to her.

PER CURIAM:
For unlawful, dishonest, immoral or deceitful conduct as well as violation of his oath
as lawyer, respondent Atty. Dorotheo Calis faces disbarment.
The facts of this administrative case, as found by the Commission on Bar Discipline of
the Integrated Bar of the Philippines (IBP), 1 in its Report, are as follows:
Complainant (Marilou Sebastian) alleged that sometime in November, 1992,
she was referred to the respondent who promised to process all necessary
documents required for complainant's trip to the USA for a fee of One
Hundred Fifty Thousand Pesos (P150,000.00).
On December 1, 1992 the complainant made a partial payment of the
required fee in the amount of Twenty Thousand Pesos (P20,000.00), which
was received by Ester Calis, wife of the respondent for which a receipt was
issued.
From the period of January 1993 to May 1994 complainant had several
conferences with the respondent regarding the processing of her travel
documents. To facilitate the processing, respondent demanded an additional
amount of Sixty Five Thousand Pesos (P65,000.00) and prevailed upon
complainant to resign from her job as stenographer with the Commission on
Human Rights.
On June 20, 1994, to expedite the processing of her travel documents
complainant issued Planters Development Bank Check No. 12026524 in the
amount of Sixty Five Thousand Pesos (P65,000.00) in favor of Atty. D. Calis
who issued a receipt. After receipt of said amount, respondent furnished the
complainant copies of Supplemental to U.S. Nonimmigrant Visa Application
(Of. 156) and a list of questions which would be asked during interviews.
When complainant inquired about her passport, Atty. Calis informed the
former that she will be assuming the name Lizette P. Ferrer married to

When complainant demanded for her passport, respondent assured the


complainant that it will be given to her on her departure which was
scheduled on September 6, 1994. On said date complainant was given her
passport and visa issued in the name of Lizette P. Ferrer. Complainant left
together with Jennyfer Belo and a certain Maribel who were also recruits of
the respondent.
Upon arrival at the Singapore International Airport, complainant together with
Jennyfer Belo and Maribel were apprehended by the Singapore Airport
Officials for carrying spurious travel documents; Complainant contacted the
respondent through overseas telephone call and informed him of by her
predicament. From September 6 to 9, 1994, complainant was detained at
Changi Prisons in Singapore.
On September 9, 1994 the complainant was deported back to the
Philippines and respondent fetched her from the airport and brought her to
his residence at 872-A Tres Marias Street, Sampaloc, Manila. Respondent
took complainant's passport with a promise that he will secure new travel
documents for complainant. Since complainant opted not to pursue with her
travel, she demanded for the return of her money in the amount of One
Hundred Fifty Thousand Pesos (P150,000.00).
On June 4, 1996, June 18 and July 5, 1996 respondent made partial refunds
of P15,000.00; P6,000.00; and P5,000.00.
On December 19, 1996 the complainant through counsel, sent a demand
letter to respondent for the refund of a remaining balance of One Hundred
Fourteen Thousand Pesos (P114,000.00) which was ignored by the
respondent.
Sometime in March 1997 the complainant went to see the respondent,
however his wife informed her that the respondent was in Cebu attending to
business matters.

22

In May 1997 the complainant again tried to see the respondent however she
found out that the respondent had transferred to an unknown residence
apparently with intentions to evade responsibility.
Attached to the complaint are the photocopies of receipts for the amount
paid by complainant, applications for U.S.A. Visa, questions and answers
asked during interviews; receipts acknowledging partial refunds of fees paid
by the complainant together with demand letter for the remaining balance of
One Hundred Fourteen Thousand Pesos (P114,000.00); which was received
by the respondent. 2
Despite several notices sent to the respondent requiring an answer to or comment on
the complaint, there was no response. Respondent likewise failed to attend the
scheduled hearings of the case. No appearance whatsoever was made by the
respondent. 3 As a result of the inexplicable failure, if not obdurate refusal of the
respondent to comply with the orders of the Commission, the investigation against
him proceeded ex parte.
On September 24, 1998, the Commission on Bar Discipline issued its Report on the
case, finding that:
It appears that the services of the respondent was engaged for the purpose of
securing a visa for a U.S.A. travel of complainant. There was no mention of job
placement or employment abroad, hence it is not correct to say that the
respondent engaged in illegal recruitment.
The alleged proposal of the respondent to secure the U.S.A. visa for the
complainant under an assumed name was accepted by the complainant which
negates deceit on the part of the respondent. Noted likewise is the partial
refunds made by the respondent of the fees paid by the complainant. However,
the transfer of residence without a forwarding address indicates his attempt to
escape responsibility.
In the light of the foregoing, we find that the respondent is guilty of gross
misconduct for violating Canon 1 Rule 1.01 of the Code of Professional
Responsibility which provides that a lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
WHEREFORE, it is respectfully recommended that ATTY. DOROTHEO CALIS
be SUSPENDED as a member of the bar until he fully refunds the fees paid to
him by complainant and comply with the order of the Commission on Bar
Discipline pursuant to Rule 139-B, Sec. 6, of the Rules of Court. 4
Pursuant to Section 12, Rule 139-B of the Rules of Court, this administrative case
was elevated to the IBP Board of Governors for review. The Board in a
Resolution 5 dated December 4, 1998 resolved to adopt and approve with
amendment the recommendation of the Commission. The Resolution of the Board
states:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED


and APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein
made part of this Resolution/Decision as Annex "A"; and, finding
the recommendation fully supported by the evidence on record and
the applicable laws and rules, with an amendment that Respondent
Atty. Dorotheo Calis be DISBARRED for having been found guilty
of Gross Misconduct for engaging in unlawful, dishonest, immoral
or deceitful conduct.
We are now called upon to evaluate, for final action, the IBP recommendation
contained in its Resolution dated December 4, 1998, with its supporting report.
After examination and careful consideration of the records in this case, we find the
Resolution passed by the Board of Governors of the IBP in order. We agree with the
finding of the Commission that the charge of illegal recruitment was not established
because complainant failed to substantiate her allegation on the matter. In fact she
did not mention any particular job or employment promised to her by the respondent.
The only service of the respondent mentioned by the complainant was that of
securing a visa for the United States.
We likewise concur with the IBP Board of Governors in its Resolution, that herein
respondent is guilty of gross misconduct by engaging in unlawful, dishonest, immoral
or deceitful conduct contrary to Canon I, Rule 101 of the Code of Professional
Responsibility. Respondent deceived the complainant by assuring her that he could
give her visa and travel documents; that despite spurious documents nothing
untoward would happen; that he guarantees her arrival in the USA and even
promised to refund her the fees and expenses already paid, in case something went
wrong. All for material gain.
Deception and other fraudulent acts by a lawyer are disgraceful and dishonorable.
They reveal moral flaws in a lawyer. They are unacceptable practices. A lawyer's
relationship with others should be characterized by the highest degree of good faith,
fairness and candor. This is the essence of the lawyer's oath. The lawyer's oath is not
mere facile words, drift and hollow, but a sacred trust that must be upheld and keep
inviolable. 6 The nature of the office of an attorney requires that he should be a
person of good moral character. 7 This requisite is not only a condition precedent to
admission to the practice of law, its continued possession is also essential for
remaining in the practice of law.8 We have sternly warned that any gross misconduct
of a lawyer, whether in his professional or private capacity, puts his moral character in
serious doubt as a member of the Bar, and renders him unfit to continue in the
practice of law. 9
It is dismaying to note how respondent so cavalierly jeopardized the life and liberty of
complainant when he made her travel with spurious documents. How often have
victims of unscrupulous travel agents and illegal recruiters been imprisoned in foreign
lands because they were provided fake travel documents? Respondent totally
disregarded the personal safety of the complainant when he sent her abroad on false
assurances. Not only are respondent's acts illegal, they are also detestable from the

23

moral point of view. His utter lack of moral qualms and scruples is a real threat to the
Bar and the administration of justice.
The practice of law is not a right but a privilege bestowed by the State on those who
show that they possess, and continue to possess, the qualifications required by law
for the conferment of such privilege. 10 We must stress that membership in the bar is a
privilege burdened with conditions. A lawyer has the privilege to practice law only
during good behavior. He can be deprived of his license for misconduct ascertained
and declared by judgment of the court after giving him the opportunity to be heard. 11
Here, it is worth noting that the adamant refusal of respondent to comply with the
orders of the IBP and his total disregard of the summons issued by the IBP are
contemptuous acts reflective of unprofessional conduct. Thus, we find no hesitation in
removing respondent Dorotheo Calis from the Roll of Attorneys for his unethical,
unscrupulous and unconscionable conduct toward complainant.
Lastly, the grant in favor of the complainant for the recovery of the P114,000.00 she
paid the respondent is in order. 12 Respondent not only unjustifiably refused to return
the complainant's money upon demand, but he stubbornly persisted in holding on to
it, unmindful of the hardship and humiliation suffered by the complainant.
WHEREFORE, respondent Dorotheo Calis is hereby DISBARRED and his name is
ordered stricken from the Roll of Attorneys. Let a copy of this Decision be
FURNISHED to the IBP and the Bar Confidant to be spread on the personal records
of respondent. Respondent is likewise ordered to pay to the complainant immediately
the amount of One Hundred Fourteen Thousand (P114,000.00) Pesos representing
the amount he collected from her.1wphi1.nt
SO ORDERED.

24

Notarial Practice, and that he be meted the penalty of six (6) months suspension as a
lawyer and six (6) months suspension as a Notary Public.12
A.C. No. 7350

February 18, 2013

PATROCINIO
V.
vs.
ATTY. ROSELLER A. VIRAY, Respondent.

AGBULOS, Complainant,

DECISION
PERALTA, J.:
The case stemmed from a Complaint1 filed before the Office of the Bar Confidant
(OBC) by complainant Mrs. Patrocinio V. Agbulos against respondent Atty. Roseller A.
Viray of Asingan, Pangasinan, for allegedly notarizing a document denominated as
Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was
supposedly executed by complainant, but the latter denies said execution and claims
that the signature and the community tax certificate (CTC) she allegedly presented
are not hers. She further claims that the CTC belongs to a certain Christian
Anton. 3 Complainant added that she did not personally appear before respondent for
the notarization of the document. She, likewise, states that respondent's client,
Rolando Dollente (Dollente), benefited from the said falsified affidavit as it contributed
to the illegal transfer of a property registered in her name to that of Dollente.4
In his Comment,5 respondent admitted having prepared and notarized the document
in question at the request of his client Dollente, who assured him that it was
personally signed by complainant and that the CTC appearing therein is owned by
her.6 He, thus, claims good faith in notarizing the subject document.
In a Resolution7 dated April 16, 2007, the OBC referred the case to the Integrated Bar
of the Philippines (IBP) for investigation, report and recommendation or decision.

On April 15, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-166
which reads:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of this
Resolution as Annex "A"; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and considering Respondents
violation of the Code of Professional Responsibility and 2004 Rules on Notarial
Practice, Atty. Roseller A. Viray is hereby SUSPENDED from the practice of law for
one (1) month.13
Respondent moved for the reconsideration of the above decision, but the same was
denied. The above resolution was further modified in Resolution No. XX-2012-117,
dated March 10, 2012, to read as follows:
RESOLVED to DENY Respondents Motion for Reconsideration, and unanimously
MODIFY as it is hereby MODIFIED Resolution No. XVIII- 2008-166 dated April 15,
2008, in addition to Respondents SUSPENSION from the practice of law for one (1)
month, Atty. Roseller A. Viray is hereby SUSPENDED as Notary Public for six (6)
months. (Emphasis in the original)
The findings of the IBP are well taken.
Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice emphasizes the
necessity of the affiants personal appearance before the notary public:14
xxxx

After the mandatory conference and hearing, the parties submitted their respective
Position Papers.8Complainant insists that she was deprived of her property because
of the illegal notarization of the subject document.9 Respondent, on the other hand,
admits having notarized the document in question and asks for apology and
forgiveness from complainant as a result of his indiscretion.10

(b) A person shall not perform a notarial act if the person involved as
signatory to the instrument or document

In his report, Commissioner Dennis A. B. Funa (Commissioner Funa) reported that


respondent indeed notarized the subject document in the absence of the alleged
affiant having been brought only to respondent by Dollente. It turned out later that the
document was falsified and the CTC belonged to another person and not to
complainant. He further observed that respondent did not attempt to refute the
accusation against him; rather, he even apologized for the complained
act.11 Commissioner Funa, thus, recommended that respondent be found guilty of
violating the Code of Professional Responsibility and the 2004 Rules on

(2) is not personally known to the notary public or otherwise


identified by the notary public through competent evidence of
identity as defined by these Rules.

(1) is not in the notarys presence personally at the time of the


notarization; and

Moreover, Section 12,15 Rule II, of the 2004 Rules on Notarial Practice defines the
"competent evidence of identity" referred to above.

25

In this case, respondent admits that not only did he prepare and notarize the subject
affidavit but he likewise notarized the same without the affiants personal appearance.
He explained that he did so merely upon the assurance of his client Dollente that the
document was executed by complainant. In notarizing the document, respondent
contented himself with the presentation of a CTC despite the Rules clear requirement
of presentation of competent evidence of identity such as an identification card with
photograph and signature. With this indiscretion, respondent failed to ascertain
the genuineness of the affiants signature which turned out to be a forgery. In
failing to observe the requirements of the Rules, even the CTC presented,
purportedly owned by complainant, turned out to belong to somebody else.
To be sure, a notary public should not notarize a document unless the person
who signed the same is the very same person who executed and personally
appeared before him to attest to the contents and the truth of what are stated
therein.16 Without the appearance of the person who actually executed the
document in question, the notary public would be unable to verify the
genuineness of the signature of the acknowledging party and to ascertain that
the document is the partys free act or deed.17
As aptly observed by the Court in Dela Cruz-Sillano v. Pangan:18
The Court is aware of the practice of not a few lawyers commissioned as notary
public to authenticate documents without requiring the physical presence of affiants.
However, the adverse consequences of this practice far outweigh whatever
convenience is afforded to the absent affiants. Doing away with the essential
requirement of physical presence of the affiant does not take into account the
likelihood that the documents may be spurious or that the affiants may not be who
they purport to be. A notary public should not notarize a document unless the persons
who signed the same are the very same persons who executed and personally
appeared before him to attest to the contents and truth of what are stated therein. The
purpose of this requirement is to enable the notary public to verify the genuineness of
the signature of the acknowledging party and to ascertain that the document is the
partys free act and deed.19

thus, be held liable for such negligence not only as a notary public but also as a
lawyer.23 The responsibility to faithfully observe and respect the legal solemnity of the
oath in an acknowledgment or jurat is more pronounced when the notary public is a
lawyer because of his solemn oath under the Code of Professional Responsibility to
obey the laws and to do no falsehood or consent to the doing of any.24 Lawyers
commissioned as notaries public are mandated to discharge with fidelity the duties of
their offices, such duties being dictated by public policy and impressed with public
interest.251wphi1
As to the proper penalty, the Court finds the need to increase that recommended by
the IBP which is one month suspension as a lawyer and six months suspension as
notary public, considering that respondent himself prepared the document, and he
performed the notarial act without the personal appearance of the affiant and without
identifying her with competent evidence of her identity. With his indiscretion, he
allowed the use of a CTC by someone who did not own it. Worse, he allowed himself
to be an instrument of fraud. Based on existing jurisprudence, when a lawyer
commissioned as a notary public fails to discharge his duties as such, he is meted the
penalties of revocation of his notarial commission, disqualification from being
commissioned as a notary public for a period of two years, and suspension from the
practice of law for one year.26
WHEREFORE, the Court finds respondent Atty. Roseller A. Viray GUILTY of breach
of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility.
Accordingly, the Court SUSPENDS him from the practice of law for one (1)
year; REVOKES his incumbent commission, if any; and PROHIBITS him from being
commissioned as a notary public for two (2) years, effective immediately. He
is WARNED that a repetition of the same or similar acts in the future shall be dealt
with more severely.
Let all the courts, through the Office of the Court Administrator, as well as the IBP and
the Office of the Bar Confidant, be notified of this Decision and be it entered into
respondent's personal record.
SO ORDERED.

The Court has repeatedly emphasized in a number of cases20 the important role a
notary public performs, to wit:
x x x [N]otarization is not an empty, meaningless routinary act but one invested with
substantive public interest. The notarization by a notary public converts a private
document into a public document, making it admissible in evidence without further
proof of its authenticity. A notarized document is, by law, entitled to full faith and credit
upon its face. It is for this reason that a notary public must observe with utmost care
the basic requirements in the performance of his duties; otherwise, the publics
confidence in the integrity of a notarized document would be undermined.21
Respondents failure to perform his duty as a notary public resulted not only damage
to those directly affected by the notarized document but also in undermining the
integrity of a notary public and in degrading the function of notarization. 22 He should,

26

the Chief Operations Manager of the complainant requesting for the latters
services.1a\^/phi1.net
A.C. No. 6107

January 31, 2005

BEL-AIR
TRANSIT
SERVICE
CORPORATION
CAR), Complainant,
vs.
ATTY. ESTEBAN Y. MENDOZA, Respondent.

(DOLLAR

RENT-A-

DECISION
CALLEJO, SR., J.:
In a verified Complaint1 dated June 11, 2003, Bel-Air Transit Service Corporation
(Dollar Rent-A-Car) charged Atty. Esteban Y. Mendoza with grossly immoral and
unethical conduct, praying for his disbarment and that his name be stricken-off from
the Roll of Attorneys.
The complainant narrated that, on September 19, 2001, the respondent rented a car
from it, a Toyota Camry with Plate No. WMK 232, for the amount of P5,549.00. Under
the terms of the Rental Agreement No. 97206, 2 which the respondent personally
signed, the latter was to be fetched at his residence at No. 483 Northwestern Street,
East Greenhills, Mandaluyong City. The respondent rented another Toyota Camry
from the complainant on September 28, 2001, this time with Plate No. WRT 557, and
was, likewise, fetched at his residence in accordance with the Rental Agreement No.
97420.3 This second contract was also personally signed by the respondent. The
statements of account4 were, thereafter, sent to the respondent at his office and
business address at Martinez & Mendoza Law Office, Cityland Show Tower,
Mandaluyong City. Despite repeated demands for payment, the respondent refused
to pay his account, which constrained the complainant to send a formal and final
demand for payment through counsel.5 This formal demand was, likewise, ignored by
the respondent, further compelling the complainant to resort to filing a complaint 6 for
recovery of money on March 12, 2003 before the Metropolitan Trial Court of Makati
City, Branch 65, docketed as Civil Case No. 81392.
According to the complainant, the respondents refusal to pay for the complainants
car rental services constitutes deceit and grossly immoral and unethical conduct,
which violates the Canons of Professional Ethics and Articles 19, 20 and 21 of the
Civil Code on Human Relations. The complainant further alleged that this is a
sufficient ground for the respondents disbarment, considering that the respondent
even ignored the complainants repeated demands for payment.7
In his Comment, the respondent denied the allegations against him. He averred that it
was the law firm of Martinez & Mendoza which engaged the services of the
complainant, and that all the trips undertaken were for an out-of-town engagement in
Lucena City. To support his claim, the respondent incorporated a letter 8 addressed to

The respondent alleged that the driver assigned to him by the complainant during the
trip from Lucena City on September 19, 2001 did not exercise extraordinary diligence.
He averred that they almost figured in an accident, and when he inquired as to why
the said driver was not cautious with his driving, the latter replied that he had just
been on another out-of-town trip driving for another client and only had three hours of
sleep the night before. The respondent decided not to report the incident to the
complainant, thinking that it was going to be the first and last incident. However,
during the trip of September 28, 2001, the respondent again almost figured in an
accident, prompting the respondent to contact the complainant to complain as to why
the latter was providing drivers to their law firm who had not had enough sleep. No
one from the complainants staff could provide him with a decent answer,
merely "Pasensiya na." The respondent then demanded a meeting with the
complainants president in order to resolve the matter, but despite repeated requests,
the latter refused to meet with him. The respondent further averred, thus:
14. It is not only inaccurate but also unfair for the complainant to baselessly
accuse the respondent or M&M of refusing to pay their claims. As shown
above, M&M immediately paid all of complainants billings for August 2001. It
was only the billings for September 2001 that remained unpaid because
M&M and respondent first wanted to meet with the President of the
complainant to resolve their complaint. M&M and respondent do not have a
history of not honoring their obligations. As officers of the court, it is
cognizant that [they] should conduct [themselves] properly so as not to do
injustice to anyone, including the complainant.
14.1. Respondent almost met an accident because the complainant provided
him with drivers that did not have enough rest and sleep before they drove
for him. It is the respondent who is the aggrieved party here and not the
complainant. Thus, it is very unfortunate that it is the respondent who is
slapped with a disbarment case. M&M did not even file a complaint with the
Department of Trade and Industry for violation of the Consumers Act of the
Philippines because it wanted to resolve its complaint amicably.
14.2 Respondent respectfully manifests that, only to buy peace, the
questioned billings of the complainant which [were] made the subject of a
complaint they filed against him had already been fully satisfied.
A copy of Official Receipt No. 52095 dated 4 September 2003 in the name of
"Martinez & Mendoza Law Office" is attached hereto and made an integral part hereof
as Annex "H."9
The respondent concluded that the complainant did not have a cause of action for
disbarment against him, as he was merely exercising his right to contest its
questionable billings.

27

The case was referred to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation and was assigned to IBP Commissioner Caesar R.
Dulay. During the hearing of March 1, 2004, the counsel for the complainant
manifested that although the respondent had already paid his account, such
payment was made only after the court had already decided the case against
the respondent and after the filing of a motion for execution, 10 which the
respondent admitted. Thus, the parties agreed during the hearing that as far as the
monetary obligation was concerned, the said judgment had already been satisfied by
the respondent. The parties were then required to file their respective position papers,
which were basically reiterations of their previous allegations.
In his Report and Recommendation dated April 19, 2004, Commissioner Dulay made
the following findings:
Respondent offers two reasons for non-payment: First, that the obligation was
incurred not by him but by his law office Martinez & Mendoza. Second, that the
respondent almost met an accident on the two occasions he used the services of the
complainant and therefore "he should not be penalized for exercising its right to
contest complainants questionable billings."
...
As to the first reason, we reiterate that as decided by the Metropolitan Trial Court,
respondent was liable for the obligation to the complainant. Indeed, respondent
cannot avoid the obligation and pass it on to his law firm and just make a complete
denial considering that he is a name partner in the firm and law partnership of
Martinez and Mendoza. The Metropolitan Trial Court, therefore, ruled that
respondent was, nevertheless, liable for the obligation of his law partnership.
Independent of the said decision, we find that the documents attached as Annexes
"A" and "B" to the complaint appear to have been signed by the respondent and even
assuming that it was the law firm that was liable, there is nothing on record to
show that the law firm questioned the billings of the complainant or that the
respondent referred the same to the law firm for proper disposition.
As to the second reason, respondent admits that there was no written demand made
for the complainant to account and answer for the "near accidents" alleged by
respondent, which "near accidents" as we understand are his reasons for not
immediately paying. We find the absence of a written demand from the respondent
quite odd especially in the case of a lawyer who is seeking to exercise his "right to
contest complainants questionable billings" or otherwise hold complainant
accountable for the said "near accidents." It would perhaps be understandable if the
omission was made by a layman; but for a lawyer not to put his demand in
writing, it would be uncharacteristic to say the least. Neither was a demand
made by the law firm of Martinez and Mendoza as a basis for non-payment . We
are, therefore, inclined to look at this reason, (near accident) as a mere afterthought
and would not justify respondent in not paying for two (2) years what appears to be a
clear and simple obligation to complainant. As pointed out by complainant, it was only
after a writ of execution was issued when payment was made.

The reason offered by respondent for not paying complainant particularly the alleged
"near accident" is, therefore, not justifiable. The said reason appears to us trite and
contrived. Lack of funds to pay an obligation may perhaps be a good reason but to
use as a reason the said "near accident" on the bare assertion of respondent
alone and not supported by any corroborating evidence may not be readily
acceptable. We are, on the other hand, also not convinced that respondent was
deceitful or grossly negligent by his actions. There is no evidence to show that
respondent was acting with deceit in not paying for the obligation incurred. However,
we find respondent lacking in probity and forthrightness in dealing with the complaint
and quite simply negligent in the handling of this particular obligation to complainant.
Taken in the light of the circumstances presented, we believe respondent should be
admonished and warned to avoid such similar conduct in the future.
It was, thus, recommended that the respondent be admonished and advised to be
more forthright in the handling of his monetary obligations in the future. On July 30,
2004, the IBP Commission on Bar Discipline then issued Resolution No. XVI-2004378, adopting and approving the recommendation of the Investigating Commissioner,
considering that there was no evidence to show that the respondent had acted with
deceit in not paying for the questioned obligation.1awphi1.nt
It is settled that a lawyer may be disbarred or suspended for any misconduct, whether
in his professional or private capacity, which shows him to be wanting in moral
character, in honesty, probity and good demeanor or unworthy to continue as an
officer of the court.11 A lawyer must, at all times, uphold the integrity and dignity of the
legal profession.l^vvphi1.net Indeed, a lawyer brings honor to the legal profession by
faithfully performing his duties to society, to the bar, to the courts and to his clients. To
this end, a member of the legal fraternity should refrain from doing any act which
might lessen in any degree the confidence and trust reposed by the public in the
fidelity, honesty and integrity in the legal profession.12 Thus, lawyers must promptly
pay their financial obligations.13Their conduct must always reflect the values and
norms of the legal profession as embodied in the Code of Professional
Responsibility.14
In this case, the respondent refused to pay for the services of the complainant,
constraining the latter to file charges in order to collect what was due to it under the
contracts, in which the respondent himself was the signatory. Moreover, as pointed
out by IBP Commissioner Dulay, the respondents claim that he almost twice figured
in accidents due to the negligent drivers employed by the complainant and that he
intended to question the companys billings (which he also posited was a valid excuse
for non-payment), appears to have been concocted as a mere afterthought.
Verily, the respondent is guilty of conduct unbecoming of a member of the bar, and
should be admonished for his actuations.
WHEREFORE, respondent Atty. Esteban Y. Mendoza is hereby ADMONISHED to be
more circumspect in his financial obligations and his dealings with the public. He
is STERNLY WARNED that similar conduct in the future shall be dealt with more
severely.

28

Let a copy of this Decision be included in the respondents files which are with the
Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of
the Philippines.
SO ORDERED.

29

G.R. No. 1203

May 15, 1903

In the matter of the suspension of HOWARD D. TERRELL from the practice of


law.
PER CURIAM:

convicted of crime, and as the acts with which he is charged in this proceeding, while
unprofessional and hence to be condemned, are not criminal in their nature, we are of
opinion that the ends of justice will be served by the suspension of said Howard D.
Terrell from the practice of law in the Philippine Islands for the term of one year from
the 7th day of February, 1903.
It is therefore directed that the said Howard D. Terrell be suspended from the practice
of law for a term of one year from February 7, 1903. It is so ordered.

Howard D. Terrell, an attorney-at-law, was ordered to show cause in the Court of First
Instance, in the city of Manila, on the 5th day of February, 1903, why he should not be
suspended as a member of the bar of the city of Manila for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes" Club, after
he had been notified that the said organization was made for the purpose of evading
the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the time of and
after its organization, which organization was known to him to be created for the
purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A. Kincaid, made
answer to these charges, denying the same, and filed affidavits in answer thereto.
After reading testimony given by said Howard D. Terrell, in the case of the United
States vs. H. D. Terrell,1 wherein he was charged with estafa, and after reading the
said affidavits in his behalf, and hearing his counsel, the court below found, and
decided as a fact, that the charges aforesaid made against Howard D. Terrell were
true, and thereupon made an order suspending him from his office as a lawyer in the
Philippine Islands, and directed the clerk of the court to transmit to this court a
certified copy of the order of suspension, as well as a full statement of the facts upon
which the same was based.
We have carefully considered these facts, and have reached the conclusion
that they were such as to justify the court below in arriving at the conclusion
that the knowledge and acts of the accused in connection with the organization
of the "Centro Bellas Artes" Club were of such a nature and character as to
warrant his suspension from practice.
The promoting of organizations, with knowledge of their objects, for the purpose of
violating or evading the laws against crime constitutes such misconduct on the part of
an attorney, an officer of the court, as amounts to malpractice or gross misconduct in
his office, and for which he may be removed or suspended. (Code of Civil Procedure,
sec. 21.) The assisting of a client in a scheme which the attorney knows to be
dishonest, or the conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the United
States, vs. Terrell was acquitted on the charge of estafa, and has not, therefore, been

30

A.C. No. 6057

June 27, 2006

PETER T. DONTON, Complainant,


vs.ATTY. EMMANUEL O. TANSINGCO, Respondent.

property for his residence and business operations. The OCCUPANCY


AGREEMENT was tied up with a loan which Mr. Stier had extended to Mr.
Donton.6
Complainant averred that respondents act of preparing the Occupancy Agreement,
despite knowledge that Stier, being a foreign national, is disqualified to own real
property in his name, constitutes serious misconduct and is a deliberate violation of
the Code. Complainant prayed that respondent be disbarred for advising Stier to do
something in violation of law and assisting Stier in carrying out a dishonest scheme.

DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco
("respondent") for serious misconduct and deliberate violation of Canon 1,1 Rules
1.012 and 1.023 of the Code of Professional Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated that he
filed a criminal complaint for estafa thru falsification of a public document 4 against
Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay") and respondent, as the
notary public who notarized the Occupancy Agreement.
The disbarment complaint arose when respondent filed a counter-charge for
perjury5 against complainant. Respondent, in his affidavit-complaint, stated that:

In his Comment dated 19 August 2003, respondent claimed that complainant filed the
disbarment case against him upon the instigation of complainants counsel, Atty.
Bonifacio A. Alentajan,7 because respondent refused to act as complainants witness
in the criminal case against Stier and Maggay. Respondent admitted that he
"prepared and notarized" the Occupancy Agreement and asserted its genuineness
and due execution.
In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.
The IBPs Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V. San
Juan ("Commissioner San Juan") of the IBP Commission on Bar Discipline found
respondent liable for taking part in a "scheme to circumvent the constitutional
prohibition against foreign ownership of land in the Philippines." Commissioner
San Juan recommended respondents suspension from the practice of law for two
years and the cancellation of his commission as Notary Public.

5. The OCCUPANCY AGREEMENT dated September 11, 1995 was prepared and
notarized by me under the following circumstances:

In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of Governors
adopted, with modification, the Report and recommended respondents suspension
from the practice of law for six months.

A. Mr. Duane O. Stier is the owner and long-time resident of a real property
located at No. 33 Don Jose Street, Bgy. San Roque, Murphy, Cubao,
Quezon City.

On 28 June 2004, the IBP Board of Governors forwarded the Report to the Court as
provided under Section 12(b), Rule 139-B8 of the Rules of Court.

B. Sometime in September 1995, Mr. Stier a U.S. citizen and thereby


disqualified to own real property in his name agreed that the property
be transferred in the name of Mr. Donton, a Filipino.

On 28 July 2004, respondent filed a motion for reconsideration before the IBP.
Respondent stated that he was already 76 years old and would already retire by 2005
after the termination of his pending cases. He also said that his practice of law is his
only means of support for his family and his six minor children.

C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several


documents that would guarantee recognition of him being the actual owner
of the property despite the transfer of title in the name of Mr. Donton.

In a Resolution dated 7 October 2004, the IBP denied the motion for reconsideration
because the IBP had no more jurisdiction on the case as the matter had already been
referred to the Court.

D. For this purpose, I prepared, among others, the OCCUPANCY


AGREEMENT, recognizing Mr. Stiers free and undisturbed use of the

The Ruling of the Court

31

The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code.
A lawyer should not render any service or give advice to any client which will involve
defiance of the laws which he is bound to uphold and obey. 9 A lawyer who assists a
client in a dishonest scheme or who connives in violating the law commits an act
which justifies disciplinary action against the lawyer.10
By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified
from owning real property.11Yet, in his motion for reconsideration, 12 respondent
admitted that he caused the transfer of ownership to the parcel of land to Stier.
Respondent, however, aware of the prohibition, quickly rectified his act and
transferred the title in complainants name. But respondent provided "some
safeguards" by preparing several documents,13including the Occupancy Agreement,
that would guarantee Stiers recognition as the actual owner of the property despite
its transfer in complainants name. In effect, respondent advised and aided Stier in
circumventing the constitutional prohibition against foreign ownership of lands 14 by
preparing said documents.
Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the
Code when he prepared and notarized the Occupancy Agreement to evade the law
against foreign ownership of lands. Respondent used his knowledge of the law to
achieve an unlawful end. Such an act amounts to malpractice in his office, for which
he may be suspended.15
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice
of law for three years for preparing an affidavit that virtually permitted him to commit
concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from
the practice of law for one year for preparing a contract which declared the spouses
to be single again after nine years of separation and allowed them to contract
separately subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation
of Canon 1 and Rule 1.02 of the Code of Professional Responsibility. Accordingly,
we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law
for SIX MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondents personal record as an attorney, the Integrated Bar of the
Philippines, the Department of Justice, and all courts in the country for their
information and guidance.

32

G.R. No. 104599 March 11, 1994


JON DE YSASI III, petitioner,
vs.NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU
CITY, and JON DE YSASI,respondents.

withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor
and legal adviser, as well as for the remittance of his salary. Both demands, however,
were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC,
for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984,
docketed therein as RAB Case No. 0452-84, against private respondent for illegal
dismissal with prayer for reinstatement without loss of seniority rights and payment of
full back wages, thirteenth month pay for 1983, consequential, moral and exemplary
damages, as well as attorney's fees.

REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case,
notwithstanding the vinculum of paternity and filiation between the parties. It would
indeed have been the better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere of familial amity and
with the grace of reciprocal concessions. Father and son opted instead for judicial
intervention despite the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their dispute with the same
reasoned detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros
Occidental sometime in April, 1980. Prior thereto, he was successively employed as
sales manager of Triumph International (Phil.), Inc. and later as operations manager
of Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on
a fixed salary, with other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily activities
and operations of the sugarcane farm such as land preparation, planting, weeding,
fertilizing, harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be assigned to him by private
respondent. For this purpose, he lived on the farm, occupying the upper floor of the
house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his
wife and commuted to work daily. He suffered various ailments and was hospitalized
on two separate occasions in June and August, 1982. In November, 1982, he
underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer.
During his recuperation which lasted over four months, he was under the care of Dr.
Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his
medical expenses and petitioner continued to receive compensation. However, in
April, 1984, without due notice, private respondent ceased to pay the latter's salary.
Petitioner made oral and written demands for an explanation for the sudden

On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC, 1 holding that petitioner abandoned his work and that the termination of his
employment was for a valid cause, but ordering private respondent to pay petitioner
the amount of P5,000.00 as penalty for his failure to serve notice of said termination
of employment to the Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al. 2 On appeal to the Fourth Division of
the NLRC, Cebu City, said decision was affirmed in toto. 3
His motion for reconsideration 4 of said decision having been denied for lack of
merit, 5 petitioner filed this petition presenting the following issues for resolution: (1)
whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled
to reinstatement, payment of back wages, thirteenth month pay and other benefits;
and (3) whether or not he is entitled to payment of moral and exemplary damages
and attorney's fees because of illegal dismissal. The discussion of these issues will
necessarily subsume the corollary questions presented by private respondent, such
as the exact date when petitioner ceased to function as farm administrator, the
character of the pecuniary amounts received by petitioner from private respondent,
that is, whether the same are in the nature of salaries or pensions, and whether or not
there was abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended a
modification of the decision of herein public respondent sustaining the findings and
conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84, 6 for which
reason the NLRC was required to submit its own comment on the petition. In
compliance with the Court's resolution of November 16, 1992, 7 NLRC filed its
comment on February 12, 1992 largely reiterating its earlier position in support of the
findings of the Executive Labor Arbiter. 8
Before proceeding with a discussion of the issues, the observation of the labor arbiter
is worth noting:
This case is truly unique. What makes this case unique is the fact
that because of the special relationship of the parties and the
nature of the action involved, this case could very well go down (in)
the annals of the Commission as perhaps the first of its kind. For

33

this case is an action filed by an only son, his father's namesake,


the only child and therefore the only heir against his own father. 9

eventually decided the case, presents no procedural infirmity, especially considering


that there is a presumption of regularity in the performance of a public officer's
functions, 13 which petitioner has not successfully rebutted.

Additionally, the Solicitor General remarked:


. . . After an exhaustive reading of the records, two (2) observations
were noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and
private respondent had with each other, were personal matters
affecting father and son relationship. And secondly, if any of the
complaints pertain to their work, they allow their personal
relationship to come in the way. 10
I. Petitioner maintains that his dismissal from employment was illegal because of want
of just cause therefor and non-observance of the requirements of due process. He
also charges the NLRC with grave abuse of discretion in relying upon the findings of
the executive labor arbiter who decided the case but did not conduct the hearings
thereof.
Private respondent, in refutation, avers that there was abandonment by petitioner of
his functions as farm administrator, thereby arming private respondent with a ground
to terminate his employment at Hacienda Manucao. It is also contended that it is
wrong for petitioner to question the factual findings of the executive labor arbiter and
the NLRC as only questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private respondent faults
herein petitioner for failure to refer to the corresponding pages of the transcripts of
stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be
Section
16[c]
and
[d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of
page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that
technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to technicalities of
law or procedure in the interest of due process.

We are constrained to heed the underlying policy in the Labor Code relaxing the
application of technical rules of procedure in labor cases in the interest of due
process, ever mindful of the long-standing legal precept that rules of procedure must
be interpreted to help secure, not defeat, justice. For this reason, we cannot indulge
private respondent in his tendency to nitpick on trivial technicalities to boost his
arguments. The strength of one's position cannot be hinged on mere procedural
niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no
worker shall be dismissed except for just and authorized cause provided by law and
after due process. 14 Article 282 of the Labor Code enumerates the causes for which
an
employer
may
validly
terminate
an
employment,
to
wit:
(a) serious misconduct or willful disobedience by the employee of the lawful orders of
his employer or representative in connection with his work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee of
the trust reposed in him by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his employer
or any immediate member of his family or his duly authorized representative; and (e)
other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to the installation
of labor saving devices, redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking, unless the closing is for
the purpose of circumventing the pertinent provisions of the Labor Code, by serving a
written notice on the workers and the Department of Labor and Employment at least
one (1) month before the intended date thereof, with due entitlement to the
corresponding separation pay rates provided by law.15 Suffering from a disease by
reason whereof the continued employment of the employee is prohibited by law or is
prejudicial to his and his co-employee's health, is also a ground for termination of his
services provided he receives the prescribed separation pay. 16 On the other hand, it
is well-settled that abandonment by an employee of his work authorizes the employer
to effect the former's dismissal from employment. 17

It is settled that it is not procedurally objectionable for the decision in a case to be


rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the judgment, 11 provided that
he draws up his decision and resolution with due care and makes certain that they
truly and accurately reflect conclusions and final dispositions on the bases of the facts
of and evidence submitted in the case. 12

After a careful review of the records of this case, we find that public respondent
gravely erred in affirming the decision of the executive labor arbiter holding that
petitioner abandoned his employment and was not illegally dismissed from such
employment.
For
want
of
substantial
bases,
in
fact
or
in law, we cannot give the stamp of finality and conclusiveness normally accorded to
the factual findings of an administrative agency, such as herein public respondent
NLRC, 18 as even decisions of administrative agencies which are declared "final" by
law are not exempt from judicial review when so warranted. 19

Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T.
Octavio, who conducted the hearings therein from December 5, 1984 to July 11,
1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who

The following perceptive disquisitions of the Solicitor General on this point deserve
acceptance:

34

It is submitted that the absences of petitioner in his work from


October 1982 to December 1982, cannot be construed as
abandonment of work because he has a justifiable excuse.
Petitioner was suffering from perennial abscess in the peri-anal
around the anus and fistula under the medical attention of Dr.
Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn,
Vol. III, Dr. Tan, February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by
medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan,
January 22, 1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in
Bacolod City upon the instruction(s) of private respondent to
recuperate thereat and to handle only administrative matters of the
hacienda in that city. As a manager, petitioner is not really obliged
to live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's
illness and strained family relation with respondent Jon de Ysasi II
may be considered as justifiable reason for petitioner Jon de Ysasi
III's absence from work during the period of October 1982 to
December 1982. In any event, such absence does not warrant
outright dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1) failure to report for work or absence without
valid or justifiable reason; and (2) clear intention
to sever the employer-employee tie (Samson
Alcantara, Reviewer in Labor and Social
Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA
328), the Court rules that for abandonment to arise, there must be a
concurrence of the intention to abandon and some overt act from
which it may be inferred that the employee has no more interest to
work. Similarly, in Nueva Ecija I Electric Cooperative,
Inc. v. NLRC(184 SCRA 25), for abandonment to constitute a valid
cause for termination of employment, there must be a deliberate,
unjustified refusal of the employee to resume his employment. . .

Mere absence is not sufficient; it must be accompanied by overt


acts unerringly pointing to the fact that the employee simply does
not want to work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to leave
his residence inside Hacienda Manucao, is justified by his illness
and strained family relations. Second he has some medical
certificates to show his frail health. Third, once able to work,
petitioner wrote a letter (Annex "J") informing private respondent of
his intention to assume again his employment. Last, but not the
least, he at once instituted a complaint for illegal dismissal when he
realized he was unjustly dismissed. All these are indications that
petitioner had no intention to abandon his employment. 20
The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware of
petitioner's state of health as the former admittedly shouldered part of the medical
and hospital bills and even advised the latter to stay in Bacolod City until he was fit to
work again. The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for recuperation
is beside the point. The fact remains that on account of said illnesses, the details of
which were amply substantiated by the attending physician, 21 and as the records are
bereft of any suggestion of malingering on the part of petitioner, there was justifiable
cause for petitioner's absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere absence that is required to
constitute abandonment as a valid ground for termination of employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner unmistakably
may be classified as a managerial employee 23 to whom the law grants an amount of
discretion in the discharge of his duties. This is why when petitioner stated that "I
assigned myself where I want to go," 24 he was simply being candid about what he
could do within the sphere of his authority. His duties as farm administrator did not
strictly require him to keep regular hours or to be at the office premises at all times, or
to be subjected to specific control from his employer in every aspect of his work. What
is essential only is that he runs the farm as efficiently and effectively as possible and,
while petitioner may definitely not qualify as a model employee, in this regard he
proved to be quite successful, as there was at least a showing of increased
production during the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner during the years
1983 to 1984, this is because that was the period when petitioner was recuperating
from illness and on account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and control exercisable
by private respondent as employer was necessarily limited. It goes without saying that
the control contemplated refers only to matters relating to his functions as farm
administrator and could not extend to petitioner's personal affairs and activities.

35

While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really was no
explicit contractual stipulation (as there was no formal employment contract to begin
with) requiring him to stay therein for the duration of his employment or that any
transfer of residence would justify the termination of his employment. That petitioner
changed his residence should not be taken against him, as this is undeniably among
his basic rights, nor can such fact of transfer of residence per se be a valid ground to
terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain of his
son's intention of returning to work after his confinement in the hospital, he kept
petitioner on the payroll, reported him as an employee of thehacienda for social
security purposes, and paid his salaries and benefits with the mandated deductions
therefrom until the end of December, 1982. It was only in January, 1983 when he
became convinced that petitioner would no longer return to work that he considered
the latter to have abandoned his work and, for this reason, no longer listed him as an
employee. According to private respondent, whatever amount of money was given to
petitioner
from
that
time
until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles
from a father to a son, and not salaries as, in fact, none of the usual deductions were
made therefrom. It was only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what he heard petitioner
had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral
deposition regarding petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of
petitioner's intention to abandon his job. In addition to insinuations of sinister motives
on the part of petitioner in working at the farm and thereafter abandoning the job upon
accomplishment of his objectives, private respondent takes the novel position that the
agreement to support his son after the latter abandoned the administration of the farm
legally converts the initial abandonment to implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew
about petitioner's illness and even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner argues, is further belied by his
continued performance of various services related to the operations of the farm from
May to the last quarter of 1983, his persistent inquiries from his father's accountant
and legal adviser about the reason why his pension or allowance was discontinued
since April, 1984, and his indication of having recovered and his willingness and
capability to resume his work at the farm as expressed in a letter dated September
14, 1984. 26 With these, petitioner contends that it is immaterial how the monthly
pecuniary amounts are designated, whether as salary, pension or allowance, with or
without deductions, as he was entitled thereto in view of his continued service as farm
administrator. 27
To stress what was earlier mentioned, in order that a finding of abandonment may
justly be made there must be a concurrence of two elements, viz.: (1) the failure to
report for work or absence without valid or justifiable reason, and (2) a clear intention

to sever the employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's
plans of returning to work. The absence of petitioner from work since mid-1982,
prolonged though it may have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him to believe that
petitioner was no longer returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as
even after January, 1983, when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc., 28 claiming and paying for
additional farm equipment and machinery shipped by said firm from Manila to
Bacolod through Zip Forwarders, 29 getting the payment of the additional cash
advances for molasses for crop year 1983-1984 from Agrotex Commodities,
Inc., 30 and
remitting
to
private
respondent
through
Atty. Sumbingco the sums collected along with receipts for medicine and oil. 31
It will be observed that all of these chores, which petitioner took care of, relate to the
normal activities and operations of the farm. True, it is a father's prerogative to
request or even command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as the property values
and monetary sums involved, it is unlikely that private respondent would leave the
matter to just anyone. Prudence dictates that these matters be handled by someone
who can be trusted or at least be held accountable therefor, and who is familiar with
the terms, specifications and other details relative thereto, such as an employee. If
indeed petitioner had abandoned his job or was considered to have done so by
private respondent, it would be awkward, or even out of place, to expect or to oblige
petitioner to concern himself with matters relating to or expected of him with respect
to what would then be his past and terminated employment. It is hard to imagine what
further authority an employer can have over a dismissed employee so as to compel
him to continue to perform work-related tasks:
It is also significant that the special power of attorney 32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a
resident of Hda. Manucao, hereinafter called and referred to as
PRINCIPAL, am a sugarcane planter, BISCOM Mill District, and a
duly accredited planter-member of the BINALBAGAN-ISABELA
PLANTERS' ASSOCIATION, INC.;

36

That as such planter-member of BIPA, I have check/checks with


BIPA representing payment for all checks and papers to which I am
entitled to (sic) as such planter-member;
That I have named, appointed and constituted as by these
presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and
lawful ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME
and in my name, place and stead, my check/checks
aforementioned, said ATTORNEY-IN-FACT being herein given the
power and authority to sign for me and in my name, place and
stead, the receipt or receipts or payroll for the said check/checks.
PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT cannot
cash the said check/checks, but to turn the same over to me for my
proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the
receipts therefor.
That I further request that my said check/checks be made a
"CROSSED CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been
terminated by reason of abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries and benefits, 33 the issuance
of withholding tax reports, 34 as well as correspondence reporting his full recovery and
readiness to go back to work, 35 and, specifically, his filing of the complaint for illegal
dismissal are hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for
private respondent, ascribing statements to petitioner supposedly indicative of the
latter's intention to abandon his work. We perceive the irregularity in the taking of
such deposition without the presence of petitioner's counsel, and the failure of private
respondent to serve reasonably advance notice of its taking to said counsel, thereby
foreclosing
his
opportunity
to
cross-examine the deponent. Private respondent also failed to serve notice thereof on
the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office. 36 Fair play dictates that at such an
important stage of the proceedings, which involves the taking of testimony, both
parties must be afforded equal opportunity to examine and cross-examine a witness.

As to the monthly monetary amounts given to petitioner, whether denominated as


salary, pension, allowance orex gratia handout, there is no question as to petitioner's
entitlement thereto inasmuch as he continued to perform services in his capacity as
farm administrator. The change in description of said amounts contained in the pay
slips or in the receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar circumstances
above set out. Besides, if such amounts were truly in the nature of allowances given
by a parent out of concern for his child's welfare, it is rather unusual that receipts
therefor 37 should be necessary and required as if they were ordinary business
expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of the
father's agreement to support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the monthly sums received
by petitioner, regardless of designation, were in consideration for services rendered
emanating from an employer-employee relationship and were not of a character that
can qualify them as mere civil support given out of parental duty and solicitude. We
are also hard put to imagine how abandonment can be impliedly converted into a
voluntary resignation without any positive act on the part of the employee conveying a
desire to terminate his employment. The very concept of resignation as a ground for
termination by the employee of his employment 38 does not square with the elements
constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by private
respondent of the due process requirements under the Labor Code for want of notice
and hearing. 39 Private respondent, in opposition, argues that Section 2, Rule XIV,
Book V of the Omnibus Rules Implementing the Labor Code applies only to cases
where the employer seeks to terminate the services of an employee on any of the
grounds enumerated under Article 282 of the Labor Code, but not to the situation
obtaining in this case where private respondent did not dismiss petitioner on any
ground since it was petitioner who allegedly abandoned his employment. 40
The due process requirements of notice and hearing applicable to labor cases are set
out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this
wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss
a worker shall furnish him a written notice stating the particular acts
or omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last
known address.
xxx xxx xxx
Sec. 5. Answer and hearing. The worker may answer the
allegations as stated against him in the notice of dismissal within a
reasonable period from receipt of such notice. The employer shall

37

afford the worker ample opportunity to be heard and to defend


himself with the assistance of his representative, if he so desires.
Sec. 6. Decision to dismiss. The employer shall immediately
notify a worker in writing of a decision to dismiss him stating clearly
the reasons therefor.
Sec. 7. Right to contest dismissal. Any decision taken by the
employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint
with the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. The employer shall submit a
monthly report to the Regional Office having jurisdiction over the
place of work at all dismissals effected by him during the month,
specifying therein the names of the dismissed workers, the reasons
for their dismissal, the dates of commencement and termination of
employment, the positions last held by them and such other
information as may be required by the Ministry for policy guidance
and statistical purposes.

While we are in full agreement with the


respondent as to his defense of implied
resignation
and/or
abandonment,
records
somehow showed that he failed to notify the
Department
of
Labor and Employment for his sons'
(sic)/complainants' (sic) aba(n)donment as
required by BP 130. And for this failure, the other
requisite for a valid termination by an employer
was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of
a valid cause for dismissal. The validity of the
cause of dismissal must be upheld at all times
provided however that sanctions must be
imposed on the respondent for his failure to
observe the notice on due process requirement.
(Wenphil Corp. v. NLRC, G.R. No. 80587).
(Decision Labor Arbiter, at 11-12, Annex "C"
Petition), . . .

Private respondent's argument is without merit as there can be no question that


petitioner was denied his right to due process since he was never given any notice
about his impending dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of the mandatory twin
requirements of procedural due process in this particular case, he in effect admits that
no notice was served by him on petitioner. This fact is corroborated by the certification
issued on September 5, 1984 by the Regional Director for Region VI of the
Department of Labor that no notice of termination of the employment of petitioner was
submitted thereto. 41

This is thus a very different case from Wenphil Corporation


v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is:
once an employee is dismissed for just cause, he must not be
rewarded
re-employment and backwages for failure of his employer to
observe procedural due process. The public policy behind this is
that, it may encourage the employee to do even worse and render
a mockery of the rules of discipline required to be observed.
However, the employer must be penalized for his infraction of due
process. In the present case, however, not only was petitioner
dismissed without due process, but his dismissal is without just
cause. Petitioner did not abandon his employment because he has
a justifiable excuse. 43

Granting arguendo that there was abandonment in this case, it nonetheless cannot be
denied that notice still had to be served upon the employee sought to be dismissed,
as the second sentence of Section 2 of the pertinent implementing rules explicitly
requires service thereof at the employee's last known address, by way of substantial
compliance. While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements of due
process cannot be lightly taken. The law does not countenance the arbitrary exercise
of such a power or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee. 42

II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory
provisions of Article 279 of the Labor Code which entitles an illegally dismissed
employee to reinstatement and back wages and, instead, affirmed the imposition of
the penalty of P5,000.00 on private respondent for violation of the due process
requirements. Private respondent, for his part, maintains that there was error in
imposing the fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office, as required
under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the
failure to serve notice upon the employee sought to be dismissed by the employer.

On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor
General rejoins as follows:

Both the Constitution and the Labor Code enunciate in no uncertain terms the right of
every worker to security of tenure. 44 To give teeth to this constitutional and statutory
mandates, the Labor Code spells out the relief available to an employee in case of its
denial:

The Labor Arbiter held thus:

38

Art. 279. Security of Tenure. In cases of regular employment, the


employer shall not terminate the services of an employee except for
a just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits of
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of actual
reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in the
absence of just cause for dismissal. 45 The Court, however, on numerous occasions
has tempered the rigid application of said provision of the Labor Code, recognizing
that in some cases certain events may have transpired as would militate against the
practicability of granting the relief thereunder provided, and declares that where there
are strained relations between the employer and the employee, payment of back
wages and severance pay may be awarded instead of reinstatement, 46 and more
particularly when managerial employees are concerned. 47 Thus, where reinstatement
is no longer possible, it is therefore appropriate that the dismissed employee be given
his fair and just share of what the law accords him. 48
We note with favor and give our imprimatur to the Solicitor General's ratiocination, to
wit:
As a general rule, an employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority
rights and to his backwages computed from the time his
compensation was withheld up to the time of his reinstatement.
(Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement
Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court
held that when it comes to reinstatement, differences should be
made between managers and the ordinary workingmen. The Court
concluded that a company which no longer trusts its managers
cannot operate freely in a competitive and profitable manner. The
NLRC should know the difference between managers and ordinary
workingmen. It cannot imprudently order the reinstatement of
managers with the same ease and liberality as that of rank and file
workers who had been terminated. Similarly, a reinstatement may
not be appropriate or feasible in case of antipathy or antagonism
between the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The present
relationship of petitioner and private respondent (is) so strained that
a harmonious and peaceful employee-employer relationship is
hardly possible. 49
III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal
from employment was attended by bad faith or fraud, or constituted oppression, or

was contrary to morals, good customs or public policy. He further prays for exemplary
damages to serve as a deterrent against similar acts of unjust dismissal by other
employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate
one for diverse injuries such as mental anguish, besmirched reputation, wounded
feelings, and social humiliation, provided that such injuries spring from a wrongful act
or omission of the defendant which was the proximate cause thereof. 50Exemplary
damages, under Article 2229, are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or compensatory damages.
They are not recoverable as a matter of right, it being left to the court to decide
whether or not they should be adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past allowing
recovery of moral damages where the dismissal of the employee was attended by
bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy, 52 and of exemplary damages if the
dismissal was effected in a wanton, oppressive or malevolent manner. 53 We do not
feel, however, that an award of the damages prayed for in this petition would be
proper even if, seemingly, the facts of the case justify their allowance. In the
aforestated cases of illegal dismissal where moral and exemplary damages were
awarded, the dismissed employees were genuinely without fault and were
undoubtedly victims of the erring employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can equally
be faulted for fanning the flames which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful settlement of their disparate
claims. The records reveal how their actuations seethed with mutual antagonism and
the undeniable enmity between them negates the likelihood that either of them acted
in good faith. It is apparent that each one has a cause for damages against the other.
For this reason, we hold that no moral or exemplary damages can rightfully be
awarded to petitioner.
On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case
because petitioner has a justifiable excuse for his absence, or such
absence does not warrant outright dismissal without notice and
hearing. Private respondent, therefore, is guilty of illegal dismissal.
He should be ordered to pay backwages for a period not exceeding
three years from date of dismissal. And in lieu of reinstatement,
petitioner may be paid separation pay equivalent to one (1)
month('s) salary for every year of service, a fraction of six months
being considered as one (1) year in accordance with recent
jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for
damages should be dismissed, for both parties are equally at
fault. 54

39

The conduct of the respective counsel of the parties, as revealed by the records,
sorely disappoints the Court and invites reproof. Both counsel may well be reminded
that their ethical duty as lawyers to represent their clients with
zeal 55 goes beyond merely presenting their clients' respective causes in court. It is
just as much their responsibility, if not more importantly, to exert all reasonable efforts
to smooth over legal conflicts, preferably out of court and especially in consideration
of the direct and immediate consanguineous ties between their clients. Once again,
we reiterate that the useful function of a lawyer is not only to conduct litigation but to
avoid it whenever possible by advising settlement or withholding suit. He is often
called upon less for dramatic forensic exploits than for wise counsel in every phase of
life. He should be a mediator for concord and a conciliator for compromise, rather
than a virtuoso of technicality in the conduct of litigation. 56

SO ORDERED.
Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.

Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a)
lawyer shall encourage his client to avoid, end or settle the controversy if it will admit
of a fair settlement." On this point, we find that both counsel herein fell short of what
was expected of them, despite their avowed duties as officers of the court. The
records do not show that they took pains to initiate steps geared toward effecting a
rapprochement between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they may have
found favor in the equally hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this regrettable case
has been less than faithful to the letter and spirit of the Labor Code mandating that a
labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute
within his jurisdiction." 57 If he ever did so, or at least entertained the thought, the
copious records of the proceedings in this controversy are barren of any reflection of
the same.
One final word. This is one decision we do not particularly relish having been obliged
to make. The task of resolving cases involving disputes among members of a family
leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful
and enduring resolution is really achieved in such situations. While we are convinced
that we have adjudicated the legal issues herein squarely on the bases of law and
jurisprudence, sanssentimentality, we are saddened by the thought that we may have
failed to bring about the reconciliation of the father and son who figured as parties to
this dispute, and that our adherence here to law and duty may unwittingly contribute
to the breaking, instead of the strengthening, of familial bonds. In fine, neither of the
parties herein actually emerges victorious. It is the Court's earnest hope, therefore,
that with the impartial exposition and extended explanation of their respective rights in
this decision, the parties may eventually see their way clear to an ultimate resolution
of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations Commission is
hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages
for a period not exceeding three (3) years, without qualification or deduction, 58 and, in
lieu of reinstatement, separation pay equivalent to one (1) month for every year of
service, a fraction of six (6) months being considered as one (1) whole year.

40

41

Rule 2.02
A.C. No. 9259

August 23, 2012

JASPER
JUNNO
F.
RODICA, Complainant,
vs.
ATTY. MANUEL "LOLONG" M. LAZARO, ATTY. EDWIN M. ESPEJO, ATTY. ABEL
M. ALMARIO, ATTY. MICHELLE B. LAZARO, ATTY. JOSEPH C. TAN, and JOHN
DOES, Respondents.
LEONARDO-DE CASTRO,*
PERLAS-BERNABE,**
RESOLUTION

During the meeting, Atty. Manuel explained to Strong the terms of the Lazaro Law
Offices engagement as well as the fees. Strong assured him of his capacity to pay
and offered to pay a success fee of US$100,000.00 should the said law office be able
to expedite his release from detention as well as his departure from the
Philippines.6 Finding Strong to be believable and trustworthy, Atty. Manuel agreed to
handle his case.7
During the course of their meeting, Strong casually mentioned that he has a property
in Boracay and that he suspected his neighbors as the persons who caused his
arrest. According to Strong, his live-in partner Rodica filed a Complaint before the
Regional Trial Court (RTC) of Kalibo, Aklan, for recovery of possession and
damages8(against Hillview Marketing Corporation9 (Hillview), Stephanie Dornau
(Dornau) as President of Hillview, the Alargo Park Neighborhood Association, Inc. and
spouses Robert and Judy Gregoire) in connection with the 353-square meter property
they bought in Boracay. He disclosed that he and Rodica had been trying to sell the
Boracay property to rid themselves of the problems but could not find buyers because
of the said case. They even offered the property to Apostol but the latter was hesitant
because of the said pending case. Atty. Manuel averred that towards the end of the
interview with Strong, Rodica arrived. Strong described Rodica as his "handyman"
who will act as his liaison in the case.

DEL CASTILLO, J.:


"The power to disbar or suspend ought always to be exercised on the preservative
and not on the vindictive principle, with great caution and only for the most weighty
reasons."1
This is a Complaint2 for disbarment filed by Jasper Junno F. Rodica (Rodica) against
Atty. Manuel "Lolong" M. Lazaro (Atty. Manuel), Atty. Edwin M. Espejo (Atty. Espejo),
Atty. Abel M. Almario, (Atty. Almario), Atty. Michelle B. Lazaro (Atty. Michelle), and
Atty. Joseph C. Tan (Atty. Tan) for gross and serious misconduct, deceit, malpractice,
grossly immoral conduct, and violation of the Code of Professional Responsibility.
Factual Antecedents
On May 5, 2011, William Strong (Strong), an American, was arrested and detained by
the operatives of the Bureau of Immigration. Strong sought the assistance of
Philip3 G. Apostol (Apostol), a friend and neighbor, to secure the services of a lawyer.
Apostol referred him to Atty. Manuel, who is a partner at the M.M. Lazaro and
Associates Law Office (Lazaro Law Office).
Atty. Manuel initially declined because his law office only handles cases of its retained
clients and those known to him or any of the associate lawyers.4 However, he was
eventually prevailed upon by Apostol who would consider it as a special favor if Atty.
Manuel would handle Strongs case. Hence, Atty. Manuel, together with Atty. Almario
and Atty. Espejo, senior and junior associates, respectively, at the Lazaro Law Office,
agreed to meet Strong at the Taguig Detention Center of the Bureau of Immigration.5

Upon inquiry with the Bureau of Immigration, it was discovered that Strongs arrest
was made pursuant to an Interpol Red Notice; and that Strong is wanted in Brazil for
Conspiracy to Commit Fraud, Setting Up a Gang and Other Related Crimes.
Specifically, Strong is being indicted for his alleged involvement in "an international
gang involved in shares fraud which led to the creation of hundreds of millions of
dollars in illegal securities."10 Strong denied any participation in the alleged crime.
Strong then pleaded with Atty. Manuel to expedite his deportation to any country
except Brazil and reiterated his willingness to pay the success fee of US$100,000.00.
In her Complaint, Rodica alleged that in one of her meetings with the lawyers of the
Lazaro Law Office, she hinted that Atty. Tan, a senior partner at the Marcos Ochoa
Serapio Tan and Associates (MOST Law) and who is also the lawyer of Hillview and
Dornau, was instrumental in the immigration case of Strong. According to Rodica,
Atty. Manuel called up Atty. Tan. Thereafter, Atty. Manuel allegedly informed Rodica
that Atty. Tan admitted having initiated the immigration case resulting in the detention
of Strong; that Atty. Tan threatened to do something bad against Rodica and her
family; and that Atty. Tan demanded for Rodica to withdraw the RTC case as part of a
settlement package.
On May 25, 2011, the Bureau of Immigration, rendered its Judgment11 granting the
motion of Strong to voluntarily leave the country. On May 31, 2011, Strong left the
Philippines. Subsequently, or on June 6, 2011, Rodica filed with the RTC a motion
effectively withdrawing her complaint.
Rodica alleged that after the deportation of Strong and the withdrawal of the RTC
case, she heard nothing from the Lazaro Law Office. She also claimed that contrary
to her expectations, there was no "simultaneous over-all settlement of her grievances

42

x x x [with] the defendants [in the RTC] case. 12 Thinking that she was deceived,
Rodica filed the instant administrative case. In sum, she claimed that:
21. RESPONDENT ATTORNEYS (MANUEL, MICHELLE, EDWIN and ABEL) of M.M.
LAZARO & ASSOCIATES, furthermore, committed GRAVE MISCONDUCT &
DECEIT to complainant and the courts when (among other things):
(a.) they mis-represented to complainant that the withdrawal of her case at
the Regional Trial Court at Kalibo (Branch VI-Civil Case No. 8987) was only
the first step in an over-all settlement package of all her differences with her
legal adversaries (i.e. Hillview Marketing Corporation and the latters officials
/ Stephanie Dornau / Atty. Joseph Tan etc.), which respondent Manuel M.
Lazaro had allegedly already taken care of ;
(b.) they extorted from her more than P 7 MILLION for alleged professional /
legal fees and PENALTIES involved in William Strongs immigration case,
when what actually happened was (c.) as complainant came to know later, almost all of said amount was
allegedly used as "pay-off" to immigration, police and Malaca[]ang officials
as well as Atty. Joseph Tan, and as graft money/ kotong / lagay / "tongpats", for the expeditious approval of Mr. William Strongs voluntary
deportation plea with the Bureau of Immigration ;
(d.) they even shamelessly denied the status of the complainant as their
client, just so that they can evade their responsibility to her ;
(e.) they even submitted concocted stories (re Mr. Apostols purchase bid for
the Boracay villa of complainant; Atty. Espejos attempt to cover-up for
Lolong Lazaro and accept sole responsibility for signing the questioned
manifestation and withdrawal documents last May 24, 2011, and many
others) with the Regional Trial Court of Kalibo (Branch VI) just so that they
can hide the truth, hide their crimes and go scot free ;
22. RESPONDENT Atty. JOSEPH C. TAN on the other hand performed as a willing
partner of ATTY. MANUEL M. LAZARO by acting as conduit to his Malacaang
patron ("JOHN DOE") in causing the arrest of William Strong last May 5, 2011, and in
packaging with Lolong Lazaro of the magic formula regarding William Strongs
voluntary deportation bid and the conditions attached thereto as sufficiently
explained ;

Otherwise stated, Rodica claimed that she is a client of the Lazaro Law Office and
that she was deceived into causing the withdrawal of the RTC case. Further, she
claimed that the Lazaro Law Office collected exorbitant fees from her.
In their Comment, Atty. Almario and Atty. Espejo admitted being present in the May
13, 2011 meeting with Rodica. They denied, however, that Atty. Manuel talked with
Atty. Tan during the said meeting, or conveyed the information that Atty. Tan and the
group of Dornau were the ones behind Strongs arrest and detention.
Atty. Almario and Atty. Espejo disputed Rodicas assertion that the withdrawal of the
RTC case was a condition sine qua non to Strongs departure from the country. They
pointed out that the Manifestation with Motion to Withdraw Motion for
Reconsideration14 was filed only on June 3, 2011, 15 or nine days after the May 25,
2011 Judgment of the Bureau of Immigration was issued, and three days after Strong
left the country on May 31, 2011. They insisted that Rodica withdrew the RTC case
because it was one of the conditions set by Apostol before buying the Boracay
property.
As to the preparation of Rodicas Motion to Withdraw Motion for Reconsideration
relative to the RTC case, Atty. Espejo claimed that the former begged him to prepare
the said motion. Since the two already became close friends, Atty. Espejo
accommodated Rodicas request. He admitted to acceding to Rodicas requests to
put the name of the Lazaro Law Office, the names of its partners, as well as his
name, in the motion and into signing the same, without the prior knowledge and
consent of the other senior lawyers of the firm. Atty. Espejo claimed that he did all of
these out of his good intention to help and assist Rodica in making the Boracay
property more saleable by freeing it from any pending claims.
In his Comment,16 Atty. Manuel contended that none of the lawyers of the Lazaro Law
Office communicated with Atty. Tan relative to the deportation proceedings or the RTC
case. He claimed that it was highly improbable for the Lazaro Law Office to impress
upon Rodica that it will coordinate with Atty. Tan for the withdrawal of the RTC case to
expedite the deportation proceedings as the RTC case was already dismissed as
early as March 29, 2011 for failure to state a cause of action. Atty. Manuel averred
that the two cases are incongruous with each other and one cannot be used to
compromise the other.
Atty. Joseph Tans Arguments

xxxx

For his part, Atty. Tan asserted that the allegations against him are "double hearsay"
because the same were based on information allegedly relayed to Rodica by Atty.
Manuel, who, in turn, allegedly heard it from Atty. Tan. 17He denied any participation in
the withdrawal of the RTC case and the arrest and deportation of Strong.

23. RESPONDENTS also violated THEIR OATH AS x x x ATTORNEYS, especially


with the phrases ". . . I will obey the laws . . . I will do no falsehood, nor consent to the
doing of any in court ; . . . I will delay no man for money or malice . . . with all good
fidelity as well to the courts as to my clients . . . " ;13

Atty. Tan stressed that Strong was deported on May 31, 2011. Three days thereafter,
or on June 3, 2011, Rodica, with the assistance of her counsel of record, Atty. Joan I.
Tabanar-Ibutnande (Atty. Ibutnande), filed the Manifestation with Motion to Withdraw
Motion for Reconsideration. He averred that if it is indeed true, as Rodica alleged, that

43

the filing of the said motion was a pre-condition to Strongs voluntary deportation,
then the filing of the same should have preceded Strongs deportation. However, it
was the reverse in this case.
Atty. Tan also pointed out that it would be inconceivable for him to participate in
Strongs arrest as he had already obtained a favorable ruling "on the merits" for his
clients in the RTC case even before Strong was arrested and incarcerated. Besides,
Strong is not a party and had nothing to do with the RTC case. Atty. Tan likewise
denied having any dealings with the rest of the respondents insofar as the arrest and
voluntary deportation of Strong are concerned. Neither did he receive any phone call
or message from his co-respondents nor did he communicate with them in any
manner regarding Strongs case.
Issue
The sole issue to be resolved is whether the allegations in Rodicas Complaint merit
the disbarment or suspension of respondents.
Our Ruling
In Siao v. Atty. De Guzman, Jr., 18 this Court reiterated its oft repeated ruling that in
suspension or disbarment proceedings, lawyers enjoy the presumption of innocence,
and the burden of proof rests upon the complainant to clearly prove her allegations by
preponderant evidence. Elaborating on the required quantum of proof, this Court
declared thus:
Preponderance of evidence means that the evidence adduced by one side is, as a
whole, superior to or has greater weight than that of the other. It means evidence
which is more convincing to the court as worthy of belief than that which is offered in
opposition thereto. Under Section 1 of Rule 133, in determining whether or not there
is preponderance of evidence, the court may consider the following: (a) all the facts
and circumstances of the case; (b) the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability or improbability
of their testimony; (c) the witnesses interest or want of interest, and also their
personal credibility so far as the same may ultimately appear in the trial; and (d) the
number of witnesses, although it does not mean that preponderance is necessarily
with the greater number. (Citations omitted.)
In the absence of preponderant evidence, the presumption of innocence of the lawyer
continues and the complaint against him must be dismissed.19
In the present case, the totality of evidence presented by Rodica failed to overcome
the said presumption of innocence.
Rodicas
is devoid of merit.

claim

of

"settlement

package"

Rodicas assertions that Atty. Tan orchestrated Strongs arrest and that Atty. Manuel
proposed the withdrawal of the RTC case to facilitate the deportation of Strong, are
mere allegations without proof and belied by the records of the case. "The basic rule
is that mere allegation is not evidence, and is not equivalent to proof."20 Aside from
her bare assertions, Rodica failed to present even an iota of evidence to prove her
allegations. In fact, the records belie her claims. The documents issued by the Bureau
of Immigration showed that Strong was the subject of the Interpol Red Notice for
being a fugitive from justice wanted for crimes allegedly committed in Brazil. 21 His
warrant of arrest was issued sometime in February 2008. Significantly, even before
Strong was arrested and eventually deported, Atty. Tan had already obtained a
favorable judgment for his clients.
We also agree that it is highly inconceivable for Atty. Tan and the Lazaro Law Office to
concoct the scheme of "pressuring" Rodica to withdraw the RTC case for the purpose
of expediting the deportation proceedings of Strong. The following facts are
undisputed: (1) Rodicas counsel of record in the RTC is Atty. Ibutnande; (2) the RTC
case was already dismissed in the Order 22 of March 29, 2011 for failure to state a
cause of action; (3) on April 18, 2011, Rodica through her counsel of record filed a
Motion for Reconsideration; (4) on May 5, 2011, Strong was arrested and detained
pursuant to an Interpol Red Notice; (5) Strong hired the Lazaro Law Office to handle
his deportation case; (6) on May 19, 2011 Strong filed a Manifestation with Omnibus
Motion to voluntarily leave the country; (7) the Bureau of Immigration rendered a
Judgment23 dated May 25, 2011 granting Strongs motion to voluntarily leave the
country; (8) Strong left the country on May 31, 2011; (9) Rodicas Manifestation with
Motion to Withdraw the Motion for Reconsideration was filed on June 6, 2011; and,
(8) acting on the said Manifestation with Motion, the RTC on June 14, 2011 issued an
Order24 granting the same.
Given the chronology of events, there appears no relation between the deportation
case and the withdrawal of the RTC case. Thus, it would be specious if not farfetched to conclude that the withdrawal of the RTC case was a pre-condition to
Strongs deportation.
As regards the alleged participation of Atty. Manuel in the "settlement package" theory
of Rodica, suffice it to say that Atty. Manuel has in his favor "the presumption that, as
an officer of the court, he regularly performs the duties imposed upon him by his oath
as a lawyer and by the Code of Professional Responsibility." 25 Hence, absent any
competent evidence to the contrary, Atty. Manuel, as Strongs counsel, is presumed to
have worked out the release and subsequent deportation of his client in accordance
with the proper procedures.
Preponderance
of
Rodica
caused
RTC
case
to
Boracay property to Apostol.

evidence
shows
the
withdrawal
of
facilitate
the
sale
of

that
the
the

We cannot lend credence to Rodicas allegation that she was deceived by Atty.
Manuel, Atty. Espejo, Atty. Almario and Atty. Michelle, another senior associate at the
Lazaro Law Office, into believing that the withdrawal of the RTC case was part of a

44

settlement package to settle her differences with her legal adversaries. We accord
more credence to the explanation of the respondents, particularly Atty. Espejo, that in
the course of rendering legal services to Strong, he had become close to Rodica so
much so that he accommodated Rodicas request to cause the withdrawal of the RTC
case to facilitate the sale of the Boracay property to Apostol.

thoughts and deliberation she cannot now say that she was manipulated and forced
in signing the same. The Court perceives plaintiff to be an intelligent woman not to be
swayed of her principles and beliefs and manipulated by others, she may have a
fickle mind when it comes to other things but definitely it can not be applied to the
Court.

In their Joint Comment,26 respondents Attys. Almario, Espejo and Michelle debunked
the opinion of Rodicas "well-meaning lawyer friends" that the withdrawal of the RTC
case "absolve[d] all defendants from any wrong-doing" and made "the contents of her
original complaint practically meaningless." Atty. Almario and Atty. Espejo opined that
since the dismissal of Rodicas complaint was based on her failure to state a cause of
action and without prejudice, the same may simply be re-filed by revising her
complaint and ensuring that it states a cause of action.

The Court does not see the connection between the instant case and that of William
Strong as alleged by the plaintiff. Mr. Strong is not a party in this case, even plaintiffs
counsel thought so too. From the Motion for Reconsideration filed by Atty. Joan
Ibutnande, it was stated in paragraph 5: "That the undersigned counsel was baffled
as she did not see any connection [between] the incident surrounding the arrest of Mr.
William Strong and the above-entitled case filed by the [plaintiff], and told the plaintiff
about it x x x." As Mr. Strong is not a party in the instance case, his affairs whatever
they are can not dictate the outcome of this case.33

As argued by Atty. Manuel, he and his lawyers only acted in the best interest of their
client Strong and rendered services in accordance with the latters objective of leaving
the country and not being deported to Brazil. The Lazaro Law Office cannot be faulted
for the dismissal of the RTC case because it had already been dismissed even before
the Lazaro Law Office was engaged to handle Strongs immigration case. Besides,
Rodica admittedly agreed to withdraw her RTC case to meet Apostols condition and
to make the property marketable.
Apostol corroborated Atty. Manuels statement in his Affidavit 27 of July 21, 2011. He
affirmed that he told Rodica that he would only consider purchasing the Boracay
property if it is cleared of any pending case so that he can protect himself, as a buyer,
from any possible issues that may crop up involving the said property. According to
him, Rodica assured him that she would work for the termination of the RTC case and
consult her lawyers in Boracay on the matter so she could already sell the property.
It is difficult to imagine that Rodica was deceived by some of the respondent lawyers
into believing that the withdrawal of the RTC case was only the initial step in the
settlement of her differences with her adversaries. 28 We went over the said
Manifestation with Motion to Withdraw the Motion for Reconsideration29 and we note
that paragraph 6 thereof specifically states:
6. However, the Plaintiff respectfully manifests that after much serious thought and
deliberation, and considering the anxieties caused by the pendency of the instant
case, Plaintiff is no longer interested in pursuing the case. Accordingly, Plaintiff
respectfully moves for the withdrawal of the Motion for Reconsideration dated April
14, 2011 of the Order dated March 29, 2011 dismissing the instant Complaint filed on
April 18, 2011.30
As already noted by the RTC, Branch 6, Kalibo, Aklan in its Order 31 dated April 4,
2011, in the case for recovery of possession with damages:32
This Manifestation was signed by plaintiff, her Manila lawyers and Atty. Joan
Ibutnande, plaintiffs counsel on record. From the statements made by plaintiff in her
Manifestation to Withdraw Motion for Reconsideration that she had made serious

Moreover, it would appear from her own narration that Rodica is not someone who is
nave or ignorant. In her complaint, she claimed to be an astute businesswoman who
even has some business in Barcelona, Spain. 34 Thus, the more reason we cannot
lend credence to her claim that she was tricked into believing that the withdrawal of
the RTC case was only preliminary to the complete settlement of all her differences
with her perceived adversaries. If such had been the agreement, then a Compromise
Agreement enumerating all the terms and conditions should have been filed instead
of the Manifestation with Motion to Withdraw the Motion for Reconsideration. In
addition, the withdrawal should not have been limited to the RTC case as it appears
that there are other cases pending with other tribunals and agencies 35 involving the
same parties. If Rodica is to be believed, then these cases should likewise have been
dismissed in order to achieve the full and complete settlement of her concerns with
her adversaries.
From the above and by preponderance of evidence, it is clear that Rodicas purpose
in withdrawing the RTC case is to pave the way for Apostol to purchase the Boracay
property. In fact, Rodica eventually executed a Deed of Absolute Sale in favor of
Apostol over the Boracay property.36
Rodicas
million
to
substantiated.

claim
the

of
Lazaro

paying
Law

more
Office

is

than P 7
not

There is likewise no merit in Rodicas allegation that the Lazaro Law Office extorted
from her more than P 7 million for alleged professional and legal fees and penalties
relative to Strongs immigration case. To support her claim, Rodica attached four
statements of account issued by the Lazaro Law Office for US$2,650.00 under
Statement of Account No. 13837,37 US$2,400.00 under Statement of Account No.
13838,38 US$1,550.00 under Statement of Account No. 1383939 and US$8,650.00
under Statement of Account No. 13835,40 or for a total amount of US$15,250.00. She
likewise presented photocopies of portions of her dollar savings account passbook to
show where the aforesaid funds came from.

45

Considering the prevailing exchange rate at that time, the Court notes that the sum
total of the abovementioned figures in its peso equivalent is far less than P 7 million.
In fact, the statements of account even support the contention of Atty. Manuel that
Strong failed to fully pay the amount of US$100,000.00 as success fee. Anent the
alleged withdrawals from Rodicas dollar savings account, the same merely
established that she made those withdrawals. They do not constitute as competent
proof that the amounts so withdrawn were indeed paid to Lazaro Law Office.
Rodica
Law Office.

was

not

the

client

of

the

Lazaro

Rodica also faulted the Lazaro Law Office lawyers for disclaiming that she is their
client. However, Rodica admitted in paragraph 5 of her unnotarized Sworn
Affidavit41 that Atty. Manuel and his lawyer-assistants were "engaged by William
Strong to handle his case with the Philippine immigration authorities." Thus, this Court
is more inclined to believe that the Lazaro Law Office agreed to handle only the
deportation case of Strong and such acceptance cannot be construed as to include
the RTC case. In fact, all the billings of Lazaro Law Office pertained to the
immigration case, and not to the RTC case. To reiterate, the RTC case has nothing to
do with Strongs deportation case. Records also show that the RTC case was filed
long before Strong was arrested and detained. In fact, it had already been dismissed
by the trial court long before Strong engaged the legal services of the Lazaro Law
Office. More importantly, Strong is not a party to the RTC case. Also, the counsel of
record of Rodica in the RTC case is Atty. Ibutnande, and not the Lazaro Law Office.
There is nothing on record that would show that respondent Attys. Manuel, Michelle,
and Almario had any participation therein.
Atty.
case.

Espejos

participation

in

the

RTC

11.1. Upon seeing Atty. Espejos initial draft, Rodica requested Atty. Espejo to include
x x x the name of the Lazaro Law Office as signatory allegedly to give more credence
and weight to the pleading and to show the defendants in the RTC case her sincere
intention to terminate the case.
Due to Rodicas pleas and insistence, Atty. Espejo, who among all lawyers of the
Lazaro Law Office, became the most familiar and "chummy" with Rodica, agreed to
include the Lazaro Law Office and put his name as the signatory for the Office. Still
not satisfied, Rodica pleaded with Atty. Espejo to further revise the Motion to
Withdraw MR to include the names of Atty. Manuel and Atty. Michelle as signatories
and represented that she herself will cause them to sign it. Relying on Rodicas
representations that she would speak to Atty. Manuel about the matter, Atty. Espejo
obliged to include the name of Atty. Michelle and Atty. Manuel. Rodica repeatedly
reminded Atty. Espejo not to bother Atty. Manuel on the matter and that she herself
will take it up with Atty. Manuel at the proper time.
11.2 Atty. Espejo has a soft heart. He signed the pleading only with good intentions of
helping and assisting Rodica, the common law wife of a client, whom he had learned
to fancy because of being constantly together and attending to her. He never thought
ill of Rodica and believed her when she said she would speak to Atty. Lazaro about
the matter as represented. Atty. Espejo only agreed to sign the pleading for purposes
of withdrawing Rodicas MR to attain Rodicas purpose or desired result and objective
to convince or facilitate the sale to Apostol and/or to make the property more
marketable to interested buyers and to attain peace with the defendants in the RTC
case. Evidently, Rodica took advantage of Atty. Espejos youth and naivete and
manipulated him to do things on her behalf, and deliberately excluded Atty. Almario
the senior lawyer. Rodica preferred to discuss matters with Atty. Espejo than with Atty.
Almario as the latter often contradicts her views. Atty. Espejo apologized to Atty.
Manuel for allowing himself to be manipulated by Rodica.42

However, we cannot say the same as regards Atty. Espejo. He admitted drafting
Rodicas Manifestation and Motion to Withdraw Motion for Reconsideration indicating
therein the firm name of the Lazaro Law Office as well as his name and the names of
Atty. Manuel and Atty. Michelle without the knowledge and consent of his superiors,
and in likewise affixing his signature thereon.

At the outset, Atty. Espejo was well aware that Rodica was represented by another
counsel in the RTC case. As a practicing lawyer, he should know that it is the said
counsel, Atty. Ibutnande, who has the duty to prepare the said motion. In fact, he
himself stated that it is Atty. Ibutnande who is in a better position to evaluate the merit
of the withdrawal of the Motion for Reconsideration.

Atty. Espejo acknowledged committing the abovementioned acts as a way of


assisting Rodica who had already become his close friend. Atty. Espejos admissions
are as follows:

Atty. Espejos claim that he drafted and signed the pleading just to extend assistance
to Rodica deserves scant consideration. It is true that under Rules 2.01 and 2.02,
Canon 2 of the Code of Professional Responsibility, a lawyer shall not reject, except
for valid reasons, the cause of the defenseless or the oppressed, and in such cases,
even if he does not accept a case, shall not refuse to render legal advise to the
person concerned if only to the extent necessary to safeguard the latters right.
However, in this case, Rodica cannot be considered as defenseless or oppressed
considering that she is properly represented by counsel in the RTC case. Needless to
state, her rights are amply safeguarded. It would have been different had Rodica not
been represented by any lawyer, which, however, is not the case.

11. Atty. Espejo further recounts that after being advised to simply withdraw her
Motion for Reconsideration ("MR"), Rodica pleaded with Atty. Espejo to prepare the
documents required to be filed with the RTC x x x to spare her Boracay lawyers from
preparing the same. Atty. Espejo accommodated Jasper and drafted the
Manifestation with Motion to Withdraw Motion for Reconsideration ("Motion to
Withdraw MR") to be given to Rodicas Boracay counsel, Atty. Joan I. TabanarIbutnande, who is in a better position to evaluate the merit of the withdrawal of the
MR.

Moreover, the Court wonders why Atty. Espejo, knowing fully well that Rodica is not
their law firms client and without the knowledge and consent of his superiors, gave in

46

to Rodicas request for him to indicate in the said motion the names of his law firm,
Atty. Manuel and Atty. Michelle for the purpose of "giving more weight and credit to
the pleading." As a member of the bar, Atty. Espejo ought to know that motions and
pleadings filed in courts are acted upon in accordance with their merit or lack of it,
and not on the reputation of the law firm or the lawyer filing the same. More
importantly, he should have thought that in so doing, he was actually assisting Rodica
in misrepresenting before the RTC that she was being represented by the said law
firm and lawyers, when in truth she was not.
It is well to remind Atty. Espejo that before being a friend to Rodica, he is first and
foremost an officer of the court.43Hence, he is expected to maintain a high standard of
honesty and fair dealings and must conduct himself beyond reproach at all
times.44 He must likewise ensure that he acts within the bounds of reason and
common sense, always aware that he is an instrument of truth and justice. 45 As
shown by his actuations. Atty. Espejo fell short of what is expected of him. Under the
circumstances, Atty. Espejo should have exercised prudence by first diligently
studying the soundness of Rodicas pleas and the repercussions of his acts.
We note that on August 5, 2011, or even before the filing of the disbarment complaint,
Atty. Espejo already caused the filing of his Motion to Withdraw Appearance 46 before
the RTC. Therein, Atty. Espejo already expressed remorse and sincere apologies to
the RTC for wrongly employing the name of the Lazaro Law Office. Considering that
Atty. Espejo is newly admitted to the Bar (2010), we deem it proper to warm him to be
more circumspect and prudent in his actuations.
WHEREFORE, premises considered, the instant Complaint for disbarment against
respondents Atty. Manuel "Lolong" M. Lazaro, Atty. Edwin M. Espejo, Atty. Abel M.
Almario, Atty. Michelle B. Lazaro and Atty. Joseph C. Tan is DISMISSED. Atty. Edwin
M. Espejo is WARNED to be more circumspect and prudent in his actuations.
SO ORDERED.

47

48

Rm.
M-01
6th Ave., cor M.H. Del Pilar
Grace Park, Caloocan City

Rule 2.03
A.C. No. 6672

September 4, 2009

PEDRO
L.
vs.
ATTY. NICOMEDES TOLENTINO, Respondent.

Fax:
(632)
362-7821
Cel.: (0926)
2701719

LINSANGAN, Complainant,
Back

RESOLUTION
CORONA, J.:
This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan
Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation
of clients and encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano,
convinced his clients2 to transfer legal representation. Respondent promised them
financial assistance3 and expeditious collection on their claims.4To induce them to hire
his services, he persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn affidavit5 of James
Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client
relations with complainant and utilize respondents services instead, in exchange for a
loan of P50,000. Complainant also attached "respondents" calling card:6
Front

SERVICES OFFERED:
CONSULTATION
AND
ASSISTANCE
TO
OVERSEAS
SEAMEN
REPATRIATED
DUE
TO
ACCIDENT,
INJURY,
ILLNESS,
SICKNESS,
DEATH
AND
INSURANCE
BENEFIT
CLAIMS
ABROAD.
1avvphi1

(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the printing and
circulation of the said calling card.7

NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY
&
MARITIME
W/ FINANCIAL ASSISTANCE
Fe
Paralegal

Marie

L.

1st MIJI Mansion, 2nd Flr.

SERVICES

Labiano

Tel: 362-7820

The complaint was referred to the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8
Based on testimonial and documentary evidence, the CBD, in its report and
recommendation,9 found that respondent had encroached on the professional
practice of complainant, violating Rule 8.0210 and other canons11of the Code of
Professional Responsibility (CPR). Moreover, he contravened the rule against
soliciting cases for gain, personally or through paid agents or brokers as stated in
Section 27, Rule 13812 of the Rules of Court. Hence, the CBD recommended that
respondent be reprimanded with a stern warning that any repetition would merit a
heavier penalty.

49

We adopt the findings of the IBP on the unethical conduct of respondent but we
modify the recommended penalty.

Although respondent initially denied knowing Labiano in his answer, he later admitted
it during the mandatory hearing.

The complaint before us is rooted on the alleged intrusion by respondent into


complainants professional practice in violation of Rule 8.02 of the CPR. And the
means employed by respondent in furtherance of the said misconduct themselves
constituted distinct violations of ethical rules.

Through Labianos actions, respondents law practice was benefited. Hapless


seamen were enticed to transfer representation on the strength of Labianos
word that respondent could produce a more favorable result.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the
manner by which a lawyers services are to be made known. Thus, Canon 3 of the
CPR provides:
CANON 3 - A lawyer in making known his legal services shall use only true, honest,
fair, dignified and objective information or statement of facts.
Time and time again, lawyers are reminded that the practice of law is a profession
and not a business; lawyers should not advertise their talents as merchants advertise
their wares.13 To allow a lawyer to advertise his talent or skill is to commercialize the
practice of law, degrade the profession in the publics estimation and impair its ability
to efficiently render that high character of service to which every member of the bar is
called.14
Rule 2.03 of the CPR provides:
RULE 2.03. A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either
personally or through paid agents or brokers. 15 Such actuation constitutes
malpractice, a ground for disbarment.16
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:
RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit
or proceeding or delay any mans cause.
This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal
business by an attorney, personally or through an agent in order to gain
employment)17 as a measure to protect the community from barratry and champerty.18
Complainant presented substantial evidence19 (consisting of the sworn statements of
the very same persons coaxed by Labiano and referred to respondents office) to
prove that respondent indeed solicited legal business as well as profited from
referrals suits.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03,
and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of
Court.1avvphi1
With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule that a
lawyer should not steal another lawyers client nor induce the latter to retain him by a
promise of better service, good result or reduced fees for his services.20 Again the
Court notes that respondent never denied having these seafarers in his client list nor
receiving benefits from Labianos "referrals." Furthermore, he never denied Labianos
connection to his office.21Respondent committed an unethical, predatory overstep into
anothers legal practice. He cannot escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as borrowers,
respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by independent advice.
Neither shall a lawyer lend money to a client except, when in the interest of justice, he
has to advance necessary expenses in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception is,
when in the interest of justice, he has to advance necessary expenses (such as filing
fees, stenographers fees for transcript of stenographic notes, cash bond or premium
for surety bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so that the free
exercise of his judgment may not be adversely affected.22 It seeks to ensure his
undivided attention to the case he is handling as well as his entire devotion and
fidelity to the clients cause. If the lawyer lends money to the client in connection with
the clients case, the lawyer in effect acquires an interest in the subject matter of the
case or an additional stake in its outcome. 23 Either of these circumstances may lead
the lawyer to consider his own recovery rather than that of his client, or to accept a
settlement which may take care of his interest in the verdict to the prejudice of the
client in violation of his duty of undivided fidelity to the clients cause.24
As previously mentioned, any act of solicitation constitutes malpractice25 which calls
for the exercise of the Courts disciplinary powers. Violation of anti-solicitation statutes
warrants serious sanctions for initiating contact with a prospective client for the
purpose of obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule to
protect the public from the Machiavellian machinations of unscrupulous lawyers and
to uphold the nobility of the legal profession.

50

Considering the myriad infractions of respondent (including violation of the


prohibition on lending money to clients), the sanction recommended by the IBP,
a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is
grossly incommensurate to its findings.
A final word regarding the calling card presented in evidence by petitioner. A lawyers
best advertisement is a well-merited reputation for professional capacity and fidelity to
trust based on his character and conduct.27 For this reason, lawyers are only allowed
to announce their services by publication in reputable law lists or use of simple
professional cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.28
Labianos calling card contained the phrase "with financial assistance." The phrase
was clearly used to entice clients (who already had representation) to change
counsels with a promise of loans to finance their legal actions. Money was dangled to
lure clients away from their original lawyers, thereby taking advantage of their
financial distress and emotional vulnerability. This crass commercialism degraded the
integrity of the bar and deserved no place in the legal profession. However, in the
absence of substantial evidence to prove his culpability, the Court is not prepared to
rule that respondent was personally and directly responsible for the printing and
distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03,
8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section
27, Rule 138 of the Rules of Court is hereby SUSPENDEDfrom the practice of law
for a period of one year effective immediately from receipt of this resolution. He
isSTERNLY WARNED that a repetition of the same or similar acts in the future shall
be dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of the Bar
Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar
of the Philippines and the Office of the Court Administrator to be circulated to all
courts.
SO ORDERED.

51

unethical because Baker & McKenzie is not authorized to practise law here. (See
Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115.)
Rule 3.02
Adm. Case No. 2131 May 10, 1985
ADRIANO
E.
DACANAY, complainant
vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA. GUERRERO,
VICENTE A. TORRES, RAFAEL E. EVANGELISTA, JR., ROMEO L. SALONGA,
JOSE R. SANDEJAS, LUCAS M. NUNAG, J. CLARO TESORO, NATIVIDAD B.
KWAN and JOSE A. CURAMMENG, JR., respondents.

WHEREFORE, the respondents are enjoined from practising law under the firm name
Baker & McKenzie.
SO ORDERED.

Adriano E. Dacanay for and his own behalf.


Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for respondents.

AQUINO, J.:
Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980 verified
complaint, sought to enjoin Juan G. Collas, Jr. and nine other lawyers from practising
law under the name of Baker & McKenzie, a law firm organized in Illinois.
In a letter dated November 16, 1979 respondent Vicente A. Torres, using the
letterhead of Baker & McKenzie, which contains the names of the ten lawyers, asked
Rosie Clurman for the release of 87 shares of Cathay Products International, Inc. to
H.E. Gabriel, a client.
Attorney Dacanay, in his reply dated December 7, 1979, denied any liability of
Clurman to Gabriel. He requested that he be informed whether the lawyer of Gabriel
is Baker & McKenzie "and if not, what is your purpose in using the letterhead of
another law office." Not having received any reply, he filed the instant complaint.
We hold that Baker & McKenzie, being an alien law firm, cannot practice law in the
Philippines (Sec. 1, Rule 138, Rules of Court). As admitted by the respondents in their
memorandum, Baker & McKenzie is a professional partnership organized in 1949 in
Chicago, Illinois with members and associates in 30 cities around the world.
Respondents, aside from being members of the Philippine bar, practising under the
firm name of Guerrero & Torres, are members or associates of Baker & Mckenzie.
As pointed out by the Solicitor General, respondents' use of the firm name Baker &
McKenzie constitutes a representation that being associated with the firm they could
"render legal services of the highest quality to multinational business enterprises and
others engaged in foreign trade and investment" (p. 3, respondents' memo). This is

52

xxx xxx xxx


Canon 4 and 5
G.R. No. 116049 July 13, 1995
PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HON. EUSTAQUIO Z. GACOTT, JR., Presiding Judge, RTC, Branch 47, Puerto
Princesa City, ARNE STROM and GRACE REYES, respondents.
RESOLUTION

REGALADO, J.:
Rebuffed by this Court through the annulment of his order dismissing Criminal Case
No. 11529 of the court a quo, complemented with a reprimand and a fine of
P10,000.00 for gross ignorance of the law, respondent Judge Eustaquio Z. Gacott, Jr.
has filed a motion for reconsideration dated April 1, 1995, and a supplemental motion
for reconsideration dated April 26, 1995.
For reasons of his own but the purposes of which can easily be deduced, separate
copies of the basic motion were furnished the Chief Justice, Judicial and Bar Council,
Solicitor General, Bar Confidant, Integrated Bar of the Philippines, Court Administrator
and his deputies, Secretary of Justice, and Ombudsman. Copies of the supplemental
motion were also furnished by him to the same officials or entities and, additionally, to
the individual members of this Court.
In the judgment now sought to be reconsidered, the Second Division of the Court,
speaking through Mr. Justice Abdulwahid A. Bidin, specified that the only issue to be
resolved in this case was whether or not respondent judge gravely abused his
discretion in granting the motion to quash the aforementioned criminal case. We
quote the pertinent portions of his ponencia not only for easy reference but to serve
as a basis for determining whether the sanctions imposed were commensurate to the
administrative offense, to wit:
The error committed by respondent judge in dismissing the case is
quite obvious in the light of P.D. No. 1, LOI No. 2 and P.D. No. 1275
aforementioned. The intent to abolish the Anti-Dummy Board could
not have been expressed more clearly than in the aforequoted LOI.
Even assuming that the City Fiscal of Puerto Princesa failed to cite
P.D. No. 1 in his opposition to the Motion to Quash, a mere perusal
of the text of LOI No. 2 would have immediately apprised the
respondent judge of the fact that LOI No. 2 was issued in
implementation of P.D. No. 1. . . .

Obviously, respondent judge did not even bother to read the text of
the cited LOI; otherwise, he would have readily acknowledged the
validity of the argument advanced by the prosecution. As correctly
observed by the Solicitor General, Presidential Decrees, such as
P.D. No. 1, issued by the former President Marcos under his martial
law powers have the same force and effect as the laws enacted by
Congress. As held by the Supreme Court in the case of Aquino vs.
Comelec (62 SCRA 275 [1975]), all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the former
President are part of the law of the land, and shall remain valid,
legal, binding, and effective, unless modified, revoked or
superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the President. LOI No. 2 is one such
legal order issued by former President Marcos in the exercise of his
martial law powers to implement P.D. No. 1. Inasmuch as neither
P.D. No. 1 nor LOI No. 2 has been expressly or impliedly revoked
or repealed, both continue to have the force and effect of law
(Rollo, pp. 7-8).
xxx xxx xxx
But even more glaring than respondent judge's utter inexcusable
neglect to check the citations of the prosecution is the mistaken
belief that the duty to inform the court on the applicable law to a
particular case devolves solely upon the prosecution or whoever
may be the advocate before the court. Respondent judge should be
reminded that courts are duty bound to take judicial notice of all the
laws of the land (Sec. 1, Rule 129, Rules of Court). Being the trier
of facts, judges are presumed to be well-informed of the existing
laws, recent enactments and jurisprudence, in keeping with their
sworn duty as members of the bar (and bench) to keep abreast of
legal developments. . . .
xxx xxx xxx
The court is fully aware that not every error or mistake of a judge in
the performance of his duties is subject to censure. But where, as
in the present case, the error could have been entirely avoided
were it not for the public respondent's irresponsibility in the
performance of his duties, it is but proper that respondent judge be
reprimanded and his order of dismissal set aside for grave
ignorance of the law. For, respondent judge's error is not a simple
error in judgment but one amounting to gross ignorance of the law
which could easily undermine the public's perception of the court's
competence.

53

We could stop here, since the rehashed arguments raised by respondent judge in his
aforesaid original and supplemental motions are completely refuted by the foregoing
discussion demonstrative not only of his adjudicatory error but also of judicial
incompetence. In fact, just to cite a few representative cases, it may be worthwhile for
respondent
judge
to
ponder
upon
the
Court's
observations
in Aducayan vs. Flores, etc., et al., 1 Ajeno
vs. Inserto, 2Libarios
vs. Dabalos, 3 and Estoya, et al. vs. Singson, etc., 4 which would put his asseverations
at rest.
Respondent judge, however, would want this Court to pass upon his other
supplications, arguments, and even his insinuations for that matter, which although
born more of fecundity in formulation and less of bases in law, we have decided to
anatomize even with some expense of prolixity.
Respondent judge prefaces his remedial approach with the assurance that "(t)he only
purpose of (h)is motion is to plead with bended knees and with all humility for the kind
reconsideration" of the decision in this case, specifically the findings that he is
"grossly ignorant of the law and as such, (he) was reprimanded and fined in the
amount of P10,000.00; and that the aforesaid decision is to be spread on (his)
personal records." 5
He adverts to his good conduct as a person and as a judge, reiterates that the error
primarily stemmed from the shortcomings of the public prosecutor and, on a personal
note, he expresses this concern: ". . . I am again begging with humility that the
spreading of the aforesaid Decision on my personal records be reconsidered because
doing so will foreclose any chance for me to aspire for promotion in the judiciary in the
future. This is very painful. I will agonize up to my last day and my last breath in life." 6
The Court assures respondent judge that it has taken all the aforesaid matters into
consideration and is not insensitive thereto, including his argumentum ad
misericordiam. It feels, however, that there is more than ample substantiation for the
findings of the ponente in the main case, and compelling legal warrant for the
administrative penalties imposed which are even milder than those meted by it under
similar and comparable situations.
The spreading of the decision on the personal record of a respondent is an official
procedure and requirement which, incredibly, respondent judge would want this very
Court to violate and forego, in suppression of facts which must appear in official
documents. His further argument that
The spreading of such decision on my personal records will not
only open criticisms on my private qualifications as a minister in the
temple of justice but will open more comments on my official acts,
competence and credibility as a judge that might undermine the
people's faith in the judicial system in the Province of Palawan, in
Puerto Princesa City and in the entire country because it is always
difficult to disassociate my private credential from that of my public
qualifications. 7

is, to put it mildly, a mite too exaggerated and a tad too melodramatic. The Court
regrets that respondent judge appears unaware that he is actually the recipient of
uncommon sympathetic consideration in this case.
Administrative penalties do not play the final strains of the valkyrian chant to a public
career, judicial or otherwise. It is for respondent judge, by subsequently
demonstrating his true worth through observance of judicial standards, to vindicate
himself from a misjudgment which is the heritage of the heedless and to rise to higher
levels which is the destiny of the deserving. Besides, it is a curious fact that assuming
as valid his meticulosity on the confidential nature of disciplinary cases, he
nevertheless sent copies of his motions to all the persons enumerated at the start of
this resolution. It is elementary that copies of such motions are merely filed with the
court and furnished only to the adverse party. Here, he wants us to keep sub
rosa what he himself publicizes.
From his initial exhibition of humility and penitential pose, respondent judge then goes
into a critical second gear by rhetorically wondering aloud in this fashion:
On July 27, 1994, the Third Division of the Honorable Supreme
Court required me to comment on the above-entitled petition. On
August 23, 1994 I filed my comment thereto and on October 24,
1994, in a Resolution the Third Division of the Supreme Court
resolved to note my Comment. When the Third Division of the
Honorable Court required me to comment in G.R. No. 116049, the
supposition is that a valid raffle of said case to that Division had
already been made. That was my thinking and impression for, why
would the case go to that Division except thru a valid raffle. I am
now in quandary, however, as to why all of a sudden, G.R. No.
116049 was transferred to the Second Division of the Supreme
Court without us or any party being informed by the Honorable
Supreme Court about it. In our level at the Regional Trial Court in
Palawan, we observe the raffle of cases with solemnity and abide
by the result of the raffle faithfully. And the said Second Division
meted me out excessive penalties when it was the Third Division
that required me to comment. Why did this happen? (Emphasis
supplied.) 8
Since this was obviously spoken with the ascriptive courage of the uninformed, we
assure His Honor that the Supreme Court also conducts "a valid raffle," observes
such raffle of its cases "with solemnity," and abides by the result thereof "faithfully."
This case was validly and solemnly raffled to Mr. Justice Bidin who was then with the
Third Division of the Court. On January 23, 1995, he was transferred to the Second
Division where he served as working chairman until his retirement on April 7, 1995. In
accordance with the internal rules of the Court, this case remained with him as the
original ponente and he accordingly penned the decision therein for and as a member
of the Second Division. There is no rule in the Court that the parties be informed that
a case has been transferred to another division, as respondent judge would want or
expect. To do so would easily be revelatory of the identity of the ponente which is
precisely what some litigants used to, and still, watch for and speculate upon.

54

In anticipation of a similar insinuendo, respondent judge is further informed that


because of the retirement of Mr. Justice Bidin and the uncertainty of the date when
his replacement could act upon his unfinished cases and the subsequent proceedings
therein, after its summer session and working recess the Court en banc, after due
deliberation on respondent judge's successive motions, decided to assign the
preparation of this resolution to the present writer thereof, he having been and still is
with the Second Division. Respondent judge, with his claim of extensive magisterial
experience, should have verified all the foregoing facts from the records of this Court,
instead of proceeding upon speculations.
Finally, shifting to what he obviously fancies to be high gear on a constitutional basis,
respondent judge questions the competence of the Second Division of this Court to
administratively discipline him. Exordially, a mere allegatio nudus does not create a
constitutional issue as to require the referral of this case, or at least the disciplinary
aspect thereof, to the Court en banc. The disposition of that matter merely involves a
clarification of the misconception of respondent judge thereon, presumably because
of his unfamiliarity with circulars adopted and followed by this Court, some of them
being on internal procedure. Be that as it may, since all the members of this Court are
aware of the submissions of respondent judge on this point through the copies of the
motions which he furnished them, and he insistently harps on constitutional grounds
therein, the Court en banc resolved to accept this aspect of the case from the Second
Division.
His Honor relies on the second sentence of Section 11, Article VIII of the present
Constitution which reads: "The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal by a vote of a majority of the
Members who actually took part in the deliberations on the issues in the case and
voted thereon." This provision is an expansion of and was taken from the second
sentence of Section 7, Article X of the 1973 Constitution which provided: "The
Supreme Court shall have the power to discipline judges of inferior courts and, by a
vote of at least eight Members, order their dismissal."
Stress is apparently laid by respondent judge on the inclusion of the adverbial phrase
"en banc" in referring to this Court in the quoted provision of the 1987 Constitution
and, from this, he argues that it is only the full Court, not a division thereof, that can
administratively punish him.
Fortuitously, the writer of this resolution, as a member of the Committee on the
Judiciary of the 1986 Constitutional Commission, had the opportunity to take up that
precise matter with the committee chairman, retired Chief Justice Roberto
Concepcion, by pointing out the equivalent provision in the 1973 Constitution,
hereinbefore quoted, which merely referred to the "Court," without qualification. It was
accordingly explained and agreed that insofar as the power to discipline is concerned,
the qualification was not intended to make a difference, as a reference to the Court by
itself necessarily means the Court en banc. It was only decided to state "en banc"
there because all internal procedural and administrative matters, as well as
ceremonial functions, are always decided by or conducted in the Court en banc. On
the other hand, where the reference is to the Court acting through its divisions, it
would necessarily be so specified. For lack of transcription of the proceedings of the

committees of said Commission, the writer has perforce to rely on his recollection and
notes, but he assures this Court of the foregoing facts as they transpired.
At any rate, the very text of the present Section 11 of Article VIII clearly shows that
there are actually two situations envisaged therein. The first clause which states that
"the Supreme Court en banc shall have the power to discipline judges of lower
courts," is a declaration of the grant of that disciplinary power to, and the
determination of the procedure in the exercise thereof by, the Court en banc. It was
not therein intended that all administrative disciplinary cases should be heard and
decided by the whole Court since it would result in an absurdity, as will hereafter be
explained.
The second clause, which refers to the second situation contemplated therein and is
intentionally separated from the first by a comma, declares on the other hand that the
Court en banc can "order their dismissal by a vote of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted therein."
Evidently, in this instance, the administrative case must be deliberated upon and
decided by the full Court itself.
Pursuant to the first clause which confers administrative disciplinary power to the
Court en banc, on February 9, 1993 a Court En Banc resolution was adopted, entitled
"Bar Matter No. 209. In the Matter of the Amendment and/or Clarification of Various
Supreme Court Rules and Resolutions," and providing inter alia:
For said purpose, the following are considered en banc cases:
xxx xxx xxx
6. Cases where the penalty to be imposed is the dismissal of a
judge, officer or employee of the Judiciary, disbarment of a lawyer,
or either the suspension of any of them for a period of more than
one (1) year or a fine exceeding P10,000.00, or both.
xxx xxx xxx
This resolution was amended on March 16, 1993 and November 23, 1993, but the
aforequoted provision was maintained.
Indeed, to require the entire Court to deliberate upon and participate in all
administrative matters or cases regardless of the sanctions, imposable or imposed,
would result in a congested docket and undue delay in the adjudication of cases in
the Court, especially in administrative matters, since even cases involving the penalty
of reprimand would require action by the Court en banc. This would subvert the
constitutional injunction for the Court to adopt a systematic plan to expedite the
decision or resolution of cases or matters pending in the Supreme Court or the lower
courts, 9 and the very purpose of authorizing the Court to sit en banc or in divisions of
three, five, or seven members. 10

55

Yet, although as thus demonstrated, only cases involving dismissal of judges of lower
courts are specifically required to be decided by the Court en banc, in cognizance of
the need for a thorough and judicious evaluation of serious charges against members
of the judiciary, it is only when the penalty imposed does not exceed suspension of
more than one year or a fine of P10,000.00, or both, that the administrative matter
may be decided in division.
It must not also be overlooked that as early as February 7, 1989, the Court
promulgated Circular No. 2-89 which clarifies that:
xxx xxx xxx
2. A decision or resolution of a Division of the Court, when
concurred in by a majority of its members who actually took part in
the deliberations on the issues in a case and voted thereon, and in
no case without the concurrence of at least three of such Members,
is a decision or resolution of the Supreme Court (Section 4[3],
Article VIII, 1987 Constitution).
That guideline or rule in the referral to the Court en banc of cases assigned to a
division thereof rests on the same rationale and applies with equal force to confute
the antithetical theory of respondent Judge Eustaquio Z. Gacott, Jr. Apropos thereto,
it would indeed be desirable for said respondent to hereafter deal with situations like
the one subject of this resolution with more perspicacity and circumspection.
WHEREFORE, the basic and supplemental motions for reconsideration of the
judgment in the case at bar are hereby DENIED. This resolution is immediately final
and executory.
SO ORDERED.

56

The case was referred to him by Leas mother on November 29, 1991, six days
before the period to perfect an appeal to this Court expired, without supplying him
with any document bearing on the case other than the Court of Appeals resolution
denying Leas motion for reconsideration.3

Canon 4 and 5
A.C. No. 3944

July 27, 2007

LEA
P.
vs.
ATTY. ROMEO P. METILA, Respondent.

PAYOD, Petitioner,

RESOLUTION
CARPIO MORALES, J.:
Lea P. Payod (Lea) charges Atty. Romeo P. Metila (respondent) with "willful neglect
and gross misconduct" in connection with this Courts dismissal of her petition in G.R.
No. 102764, "Lea P. Payod v. Court of Appeals," by Resolution dated February 3,
1992, reading:
Acting on the pleadings filed in this case, the Court resolved: to DENY: (a) petitioners
second motion for extension of time to file petition for review on certiorari, as
petitioners first motion for extension was denied in the resolution of December 16,
1991 for failure to comply with the requirement of No. two (2) of Revised Circular 188. Moreover, the said second motion for extension still fails to comply with the same
requirement of Revised Circular 1-88, and (b) the petition itself, for having been filed
late and for failure to comply with requirement No. four (4) of Revised Circular 1-88,
and for failure to submit the certification required under Circular 28-91 on forum
shopping.1
Petitioner submits that:
It is difficult to believe that practicing lawyers cannot submit very important documents
considered regular pieces of information in their practice of law leading to default with
serious consequences prejudicial to the client if the said counsel is not ill motivated or
not due to gross misconduct and willful negligence inimical to the best interest of the
client.
Together with my mother Mrs. Restituta Pelio and my sister Mrs. Portia P. Velasco, I
have found difficulty making follow-up with Atty. Romeo P. Metila for him to comply
with the submission of required documents to the Supreme Court because of his
unreasonable excuses for non-performance despite our persistent follow-ups,
payments of expenses and attorneys fees, and willingness to supply him with
materials and needed facts. More often, we got lame excuse[s] and had his no-shows
in appointed meetings at the Supreme Court.2
Respondent denies the charges and gives his side of the case as follows:

He thus told Leas mother that he would only file a motion to stay the running of the
prescriptive period of appeal and advised her to look for another lawyer who could
assist her in getting the complete certified records of the case from the Court of
Appeals and in filing a petition for review with this Court.
Neither Lea nor her mother communicated with him, however, until January 21, 1992,
forcing him to finance and defray all the expenses for the initiation of the appeal.
He concludes there was no attorney-client relationship between him and Lea, there
being no Special Power of Attorney authorizing her mother to hire him as a lawyer in
her behalf.4
After investigation, the Integrated Bar of the Philippines (IBP) Committee on Bar
Discipline, to which the complaint was referred, found respondent guilty of simple
negligence and recommended that he be seriously admonished and required to
undergo three units of Mandatory Continuing Legal Education in Remedial law for his
failure to update himself with the developments in the legal profession and for the
cavalier manner by which he denied the existence of an attorney-client relationship
when one in fact existed.5
The IBP Board of Directors adopted the Report and Recommendation of the
Investigating Commissioner that respondent be seriously admonished.
This Court upholds the finding and recommendation of the IBP.
In failing to comply with the requirements in initiating complainants appeal before this
Court in G.R. No. 102764 even after his attention to it was called by this Court,
respondent fell short of the standards required in the Canon of Professional
Responsibility for a lawyer to "keep abreast of legal developments" 6 and "serve his
client with competence and diligence."7
That Leas mother did not have a Special Power of Attorney to hire respondent on
Leas behalf is immaterial, given that he actually initiated the appeal, albeit
unsuccessfully.
It need not be underlined that a lawyer who accepts a case must give it his full
attention, diligence, skill, and competence,8 and his negligence in connection
therewith renders him liable.9
The circumstances attendant to respondents initial handle of Leas case do not
warrant a finding of gross negligence, or sheer absence of real effort on his part to
defend her cause.10 1avvphi1

57

Respondent accepted Leas case upon her mothers insistence, with only six days for
him to file a petition for review before this Court, and without her furnishing him with
complete records, not to mention money, for the reproduction of the needed
documents. Despite these constraints, respondent exerted efforts, albeit lacking in
care, to defend his clients cause by filing two motions for extension of time to file
petition. And he in fact filed the petition within the time he requested, 11 thus complying
with the guideline of this Court that lawyers should at least file their pleadings within
the extended period requested should their motions for extension of time to file a
pleading be unacted upon.12
Neither do the circumstances warrant a finding that respondent was motivated by illwill. In the absence of proof to the contrary, a lawyer enjoys a presumption of good
faith in his favor.13
WHEREFORE,
respondent,
Atty.
Romeo
Metila,
is SERIOUSLY
ADMONISHED with WARNING that similar charges will be severely dealt with.
SO ORDERED.
CONCHITA
Associate Justice

CARPIO

MORALES

WE CONCUR:

58

As early as January 15, 1987, V & G had requested the respondent Register of
Deeds to register some 163 deeds of sale with assignment (in favor of the GSIS) of
lots of the V & G mortgaged to GSIS by the lot buyers. There was no action from the
respondent.

Canon 6
A.C. No. 3056 August 16, 1991
FERNANDO
T.
vs.
ATTY. VICENTE C. RENOMERON respondent.

COLLANTES, complainant,

PER CURIAM:p
This complaint for disbarment is related to the administrative case which complainant
Attorney Fernando T. Collantes, house counsel for V & G Better Homes Subdivision,
Inc. (V & G for short), filed against Attorney Vicente C. Renomeron, Register of Deeds
of Tacloban City, for the latter's irregular actuations with regard to the application of V
& G for registration of 163 pro forma Deeds of Absolute Sale with Assignment of lots
in its subdivision. The present complaint charges the respondent with the following
offenses:
1. Neglecting or refusing inspite (sic) repeated requests and without
sufficient justification, to act within reasonable time (sic) the
registration of 163 Deeds of Absolute Sale with Assignment and the
eventual issuance and transfer of the corresponding 163 transfer
certificates of titles to the GSIS, for the purpose of obtaining some
pecuniary or material benefit from the person or persons interested
therein.
2. Conduct unbecoming of public official.
3. Dishonesty.
4. Extortion.
5. Directly receiving pecuniary or material benefit for himself in
connection with pending official transaction before him.
6. Causing undue injury to a party, the GSIS [or] Government
through manifest partiality, evident bad faith or gross inexcusable
negligence.
7. Gross ignorance of the law and procedure. (p. 10, Rollo.)

Another request was made on February 16, 1987 for him to approve or deny
registration of the uniform deeds of absolute sale with assignment. Still no action
except to require V & G to submit proof of real estate tax payment and to clarify
certain details about the transactions.
Although V & G complied with the desired requirements, respondent Renomeron
suspended the registration of the documents pending compliance by V & G with a
certain "special arrangement" between them, which was that V & G should provide
him with a weekly round trip ticket from Tacloban to Manila plus P2,000.00 as pocket
money per trip, or, in lieu thereof, the sale of respondent's Quezon City house and lot
by V & G or GSIS representatives.
On May 19, 1987, respondent confided to the complainant that he would act favorably
on the 163 registrable documents of V & G if the latter would execute clarificatory
affidavits and send money for a round trip plane ticket for him.
The plane fare amounting to P800 (without the pocket money of P2,000) was sent to
respondent through his niece.
Because of V & G's failure to give him pocket money in addition to plane fare,
respondent imposed additional registration requirements. Fed up with the
respondent's extortionate tactics, the complainant wrote him a letter on May 20, 1987
challenging him to act on all pending applications for registration of V & G within
twenty-four (24) hours.
On May 22, 1987, respondent formally denied registration of the transfer of 163
certificates of title to the GSIS on the uniform ground that the deeds of absolute sale
with assignment were ambiguous as to parties and subject matter. On May 26, 1987,
Attorney Collantes moved for a reconsideration of said denial, stressing that:
... since the year 1973 continuously up to December 1986 for a
period of nearly fifteen (15) years or for a sum total of more than
2,000 same set of documents which have been repeatedly and
uniformly registered in the Office of the Register of Deeds of
Tacloban City under Attys. Modesto Garcia and Pablo Amascual Jr.,
it is only during the incumbency of Atty. Vicente C. Renomeron, that
the very same documents of the same tenor have been refused or
denied registration ... (p. 15, Rollo.)
On May 27, 1987, respondent elevated the matter en consulta to the Administrator,
National Land Titles and Deeds Registration Administration (NLTDRA) (now the Land
Registration Authority [LRA]). In a Resolution dated July 27,1987 (Consulta No.
1579), the NLTDRA ruled that the questioned documents were registrable. Heedless

59

of the NLTDRA's opinion, respondent continued to sit on V & Gs 163 deeds of sale
with assignment.

representations by the parties interested for expeditious action on


the said documents, he continued with his inaction.

Exasperated by respondent's conduct, the complainant filed with the NLTDRA on


June 4, 1987 administrative charges (docketed as Adm. Case No. 87-15), against
respondent Register of Deeds.

The records indicate that the respondent eventually formally denied


the registration of the documents involved; that he himself elevated
the question on the registrability of the said documents to
Administrator Bonifacio after he formally denied the registration
thereof, that the Administrator then resolved in favor of the
registrability of the said documents in question; and that, such
resolution of the Administrator notwithstanding, the respondent still
refused the registration thereof but demanded from the parties
interested the submission of additional requirements not adverted
to in his previous denial.

Upon receipt of the charges, NLTDRA Administrator Teodoro G. Bonifacio directed


respondent to explain in writing why no administrative disciplinary action should be
taken against him. Respondent was further asked whether he would submit his case
on the basis of his answer, or be heard in a formal investigation.
In his answer dated July 9, 1987, respondent denied the charges of extortion and of
directly receiving pecuniary or material benefit for himself in connection with the
official transactions awaiting his action.
Although an investigator was appointed by NLTDRA Administrator Bonifacio to hear
Attorney Collantes' charges against him, Attorney Renomeron waived his right to a
formal investigation. Both parties submitted the case for resolution based on the
pleadings.
The investigator, Attorney Leonardo Da Jose, recommended dropping the charges of:
(1) dishonesty; (2) causing undue injury to a party through manifest partiality, evident
bad faith or gross inexcusable negligence; and (3) gross ignorance of the law and
procedure. He opined that the charge of neglecting or refusing, in spite repeated
requests and without sufficient justification, to act within a reasonable time on the
registration of the documents involved, in order to extort some pecuniary or material
benefit from the interested party, absorbed the charges of conduct unbecoming of a
public official, extortion, and directly receiving some pecuniary or material benefit for
himself in connection with pending official transactions before him.
Brushing aside the investigator's recommendation, NLTDRA Administrator Teodoro G.
Bonifacio on February 22, 1988, recommended to Secretary of Justice Sedfrey A.
Ordoez that the respondent: (1) be found guilty of simple neglect of duty: (2) be
reprimanded to act with dispatch on documents presented to him for registration; and
(3) be warned that a repetition of similar infraction will be dealt with more severely.

xxx xxx xxx


In relation to the alleged 'special arrangement,' although the
respondent claims that he neither touched nor received the money
sent to him, on record remains uncontroverted the circumstance
that his niece, Ms. de la Cruz, retrieved from him the amount of
P800.00 earlier sent to him as plane fare, not in the original
denomination of P100.00 bills but in P50.00 bills. The respondent
had ample opportunity to clarify or to countervail this related
incident in his letter dated 5 September 1987 to Administrator
Bonifacio but he never did so.
... We believe that, in this case, the respondent's being new in
office cannot serve to mitigate his liability. His being so should have
motivated him to be more aware of applicable laws, rules and
regulations and should have prompted him to do his best in the
discharge of his duties. (pp. 17-18, Rollo.)
Secretary Ordoez recommended to President Corazon C. Aquino that Renomeron
be dismissed from the service, with forfeiture of leave credits and retirement benefits,
and with prejudice to re-employment in the government service, effective immediately.

After due investigation of the charges, Secretary Ordoez found respondent guilty of
grave misconduct.

As recommended by the Secretary of Justice, the President of the Philippines, by


Adm. Order No. 165 dated May 3, 1990, dismissed the respondent from the
government service (pp. 1419, Rollo).

Our study and consideration of the records of the case indicate that
ample evidence supports the Investigating Officer's findings that the
respondent committed grave misconduct.

Less than two weeks after filing his complaint against Renomeron in the NLTDRA,
Attorney Collantes also filed in this Court on June 16, 1987, a disbarment complaint
against said respondent.

The respondent unreasonably delayed action on the documents


presented to him for registration and, notwithstanding

The issue in this disbarment proceeding is whether the respondent register of deeds,
as a lawyer, may also be disciplined by this Court for his malfeasances as a public
official. The answer is yes, for his misconduct as a public official also constituted a
violation of his oath as a lawyer.

60

The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs. De Luna, 102
Phil. 968), imposes upon every lawyer the duty to delay no man for money or malice.
The lawyer's oath is a source of his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary action (Legal Ethics, Ruben E. Agpalo,
1983 Edition, pp. 66-67).
As the late Chief Justice Fred Ruiz Castro said:
A person takes an oath when he is admitted to the Bar which is
designed to impress upon him his responsibilities. He thereby
becomes an "officer of the court" on whose shoulders rests the
grave responsibility of assisting the courts in the proper. fair,
speedy, and efficient administration of justice. As an officer of the
court he is subject to a rigid discipline that demands that in his
every exertion the only criterion he that truth and justice triumph.
This discipline is what as given the law profession its nobility, its
prestige, its exalted place. From a lawyer, to paraphrase Justice
Felix Frankfurter, are expected those qualities of truth-speaking, a
high sense of honor, full candor, intellectual honesty, and the
strictest observance of fiduciary responsibility all of which,
throughout the centuries, have been compendiously described as
moral character.

This Court has ordered that only those who are "competent, honorable, and reliable"
may practice the profession of law (Noriega vs. Sison, 125 SCRA 293) for every
lawyer must pursue "only the highest standards in the practice of his calling" (Court
Administrator vs. Hermoso, 150 SCRA 269, 278).
The acts of dishonesty and oppression which Attorney Renomeron committed as a
public official have demonstrated his unfitness to practice the high and noble calling
of the law (Bautista vs. Judge Guevarra, 142 SCRA 632; Court Administrator vs.
Rodolfo G. Hermoso, 150 SCRA 269). He should therefore be disbarred.
WHEREFORE, it is hereby ordered that Attorney Vicente C. Renomeron be disbarred
from the practice of law in the Philippines, and that his name be stricken off the Roll of
Attorneys
SO ORDERED.

Membership in the Bar is in the category of a mandate to public


service of the highest order. A lawyer is an oath-bound servant of
society whose conduct is clearly circumscribed by inflexible norms
of law and ethics, and whose primary duty is the advancement of
the quest of truth and justice, for which he has sworn to be a
fearless crusader. (Apostacy in the Legal Profession, 64 SCRA 784,
789- 790; emphasis supplied.)
The Code of Professional Responsibility applies to lawyers in government service in
the discharge of their official tasks (Canon 6). Just as the Code of Conduct and
Ethical Standards for Public Officials requires public officials and employees to
process documents and papers expeditiously (Sec. 5, subpars. [c] and [d] and
prohibits them from directly or indirectly having a financial or material interest in any
transaction requiring the approval of their office, and likewise bars them from soliciting
gifts or anything of monetary value in the course of any transaction which may be
affected by the functions of their office (See. 7, subpars. [a] and [d]), the Code of
Professional Responsibility forbids a lawyer to engage in unlawful, dishonest, immoral
or deceitful conduct (Rule 1.01, Code of Professional Responsibility), or delay any
man's cause "for any corrupt motive or interest" (Rule 103).
A lawyer shall not engage in conduct that adversely reflects on his
fitness to practice law, nor shall he, whether in public or private life,
behave in a scandalous manner to the discredit of the legal
profession. (Rule 7.03, Code of Professional Responsibility.)

61

Adjudicator (RARAD). This was granted by Florin, as RARAD, in an Order 8 dated


March 15, 1999. Accordingly, Florin directed the issuance and implementation of the
Writ of Possession.9

Canon 6
A.C. No. 5119

April 17, 2013

ROSARIO BERENGUER-LANDERS and PABLO BERENGUER, Complainants,


vs.
ATTY. ISABEL E. FLORIN, ATTY. MARCELINO JORNALES and ATTY. PEDRO
VEGA, Respondents.
DECISION

On March 19, 1999, the Berenguers filed a motion for reconsideration,10 claiming that
they were denied due process as they were not furnished with a copy of BARIBAGs
petition for implementation. Florin denied the motion for reconsideration for lack of
merit in an Order11 dated March 22, 1999.
On March 25, 1999, the Berenguers appealed 12 to the DAR Adjudication Board
(DARAB). BARIBAG, on other hand, filed a Motion for the Issuance of a Writ of
Possession.13 The Berenguers opposed14 the motion saying that the execution would
be premature in view of their pending appeal before the DARAB. Nevertheless,
BARIBAG still filed a Motion for the Appointment of a Special Sheriff.15

REYES, J.:
1

This is a complaint for disbarment filed by Rosario Berenguer-Landers and Pablo


Berenguer (complainants) against herein respondents Isabel E. Florin (Florin),
Marcelino Jomales (Jomales) and Pedro Vega (Vega).
The factual antecedents are as follows:
Remedios Berenguer-Lintag, Carlo Berenguer and Belinda Berenguer-Aguirre,
Rosario Berenguer-Landers and Pablo Berenguer (Berenguers) are the registered
owners of a 58.0649-hectare land in Bibingcahan, Sorsogon, Sorsogon. Sometime in
April 1998, a notice of coverage was issued by the Department of Agrarian Reform
(DAR) regarding the acquisition of their landholding pursuant to Republic Act No.
6657 or the Comprehensive Agrarian Reform Program (CARP). The Berenguers
protested and applied for the exclusion of their land with the DAR and for a notice to
lift coverage based on the ground that their landholdings have been used exclusively
for livestock pursuant to DAR Administrative Order No. 09.2
On October and November 1998, the DAR Secretary, without acting on the
application for exclusion, cancelled the Berenguers certificates of title on the land and
issued Certificates of Land Ownership Award 3 (CLOAs) in favor of the members of the
Baribag Agrarian Reform Beneficiaries Development Cooperative (BARIBAG).
Eventually, DAR Regional Director Percival Dalugdug (Dalugdug) denied their
application for exclusion from the CARPs coverage in the Order4 dated February 15,
1999 based on the Investigation Report dated February 9, 1999 submitted by the
DAR Region V Investigation that said area sought to be excluded is principally
devoted to coconuts and not the raising of livestock.5
Aggrieved, the Berenguers filed a notice of appeal6 with the Secretary of DAR.

In his Order16 dated April 6, 1999, DAR Acting Secretary Conrado S. Navarro denied
the Berenguers appeal.
On April 8, 1999, Florin issued a Resolution, 17 which granted BARIBAGs Motion for
the Appointment of a Special Sheriff and ordered the issuance of the writ of
possession prayed for.
On April 13, 1999, the Berenguers filed a motion to set aside 18 the Resolution dated
April 8, 1999, arguing that: the DARAB already acquired jurisdiction over case when
they seasonably filed an appeal before it; and that Florin should have waited until the
DARAB has decided the appeal. In an Order 19 dated April 21, 1999, Florin denied the
said motion prompting the Berenguers to move for her inhibition 20 on ground of
partiality.
The Berenguers elevated the matter via petition for certiorari to the Court of Appeals
(CA), docketed as CA-G.R. SP No. 51858, which was denied outright on procedural
grounds, to wit: (1) copy of the assailed order bears the words "certified true copy" but
the name and authority of the person certifying is not indicated as required in SC
Circular No. 3-96, and the signature therein is illegible; (2) only one of the petitioners
signed the certification on non-forum shopping which is an insufficient compliance of
Section 1, Rule 65 of the 1997 Rules of Court; and (3) there is non-exhaustion of
administrative remedies as the assailed order of the Regional Director is not directly
reviewable by the CA.21
Undaunted, the Berenguers filed a second petition for certiorari with the CA, docketed
as CA-G.R. SP No. 53174, which questioned the Orders dated March 15, 1999 and
March 22, 1999 issued by Florin. The petition was also denied on grounds of lack of
jurisdiction and wrong mode of appeal.22
Thus, Florin issued on April 21, 1999 a Writ of Possession23 in favor of BARIBAG.

While the case was pending appeal, BARIBAG filed a petition7 for the implementation
of the Order dated February 15, 1999 before the Regional Agrarian Reform

62

Florin subsequently directed the full implementation of the writ of possession pursuant
to Rule 71 of the Rules of Court in spite of the Berenguers protestations.24
On June 3, 1999, the Berenguers moved to quash25 the Writ of Possession, to no
avail.
On August 4, 1999, the complainants filed the instant Complaint 26 for the disbarment
of respondents Florin, Jornales, in his capacity as Assistant Regional Director for
DAR, and Vega, in his capacity as DAR Legal Officer V, for allegedly conspiring and
confederating in the commission of the following acts:
A. ATTY. ISABEL E. FLORIN AS REGIONAL ADJUDICATOR KNOWINGLY
RENDERING AN UNJUST JUDGEMENT, ORDERS AND RESOLUTIONS
ADVERSE AND PREJUDICIAL TO THE INTEREST OF PETITIONERS;
B. ISSUING AN ORDER AND GRANTING A WRIT OF EXECUTION EXPARTE AND SUBSEQUENTLY ISSUING AND SIGNING THE WRIT OF
POSSESSION WITHOUT CERTIFICATION OF FINALITY ISSUED BY THE
PROPER OFFICER FULLY KNOWING THAT SHE HAS NO AUTHORITY
AND TOTALLY DISREGARDING THE APPLICABLE RULES AND IN
CONTRAVENTION WITH THE NEW RULES OF PROCEDURE OF THE
DEPARTMENT OF AGRARIAN REFORM ADJUDICATION BOARD;
FURTHER, HIDING THE WRIT OF POSSESSION FROM PETITIONERS
INSPITE OF REQUEST FOR A COPY;
C. REFUSING TO TAKE ACTION ON PLEADINGS FILED BY
PETITIONERS THRU COUNSEL AND FAILING AND REFUSING TO
CONDUCT A HEARING AS PRAYED FOR BY COUNSEL; FAILING AND
REFUSING TO FORWARD THE APPEAL TO THE PROPER APPELLATE
BOARD;
D.
UNWARRANTED
INTERFERENCE
IN
LAWYER-CLIENT
RELATIONSHIPS TO THE PREJUDICE OF PETITIONERS AND LAWYER;
ABUSE OF AUTHORITY TO CITE COUNSEL FOR PETITIONER IN
CONTEMPT AND ISSUING AN ORDER OF ARREST WITHOUT HEARING
CONTRARY TO THE RULES OF COURT;
E. ATTY. MARCELINO JORNALES AND ATTY. PEDRO VEGA, INSPITE OF
THEIR KNOWLEDGE OF THE ILLEGALITY OF THE WRIT OF
POSSESSION, PERSISTED AND ASSISTED IN THE ILLEGAL
IMPLEMENTATION OF THE WRIT OF POSSESSION TO THE PREJUDICE
OF LEGITIMATE FARMERS AND PETITIONERS.27
Florin filed her Comment28 stating, among others, that: (1) the writ of possession is
anchored on the CLOAs issued by the Register of Deeds, and not on a final and
executory decision that would require a certification of finality as prescribed by the
DARAB rules; (2) Atty. Federico De Jesus (De Jesus), as Berenguers counsel, was
not furnished with a copy of the writ because it was not yet issued at the time when it

was requested; (3) there was no intent to hide the writ; (4) when the writ of
possession was finally signed, it was delivered to the sheriff for service and
enforcement; (4) it was unfair to impute illegal acts against Vega and Jornales as
DAR lawyers in view of the DARs denial of the motion for a cease and desist order
and because of the legal presumption of regularity in the performance of their duty;
(5) the petitions for certiorari filed with the CA were both dismissed; and (6) the
findings of DAR and the issuance of the CLOAs remain undisturbed. Florin also
claimed that it is Atty. De Jesus who wants her disbarred and not the Berenguers.
In a separate Comment,29 Vega denied the allegations against him arguing that: (1)
the writ of possession is not illegal in the absence of a court order stating its invalidity;
(2) he did not participate in the issuance of the writ of possession because he did not
appear as the farmers counsel; (3) the Legal Division he heads has no control or
influence over the DARAB; and (4) his presence in the execution of the writ of
possession was to ascertain that no violations against any law are committed by the
person/s executing the writ.30
Jornales Comment,31 for his part, stated that: (1) the writ has no prima facie infirmity;
(2) he is not privy to the issuance thereof; (3) he has no supervision and control over
the DAR which issued the writ; and (4) he has no authority to determine the writs
validity or invalidity. Jornales admitted, however, that he was in the meeting presided
by the PNP Provincial Director of Sorsogon prior to the writs implementation in his
capacity as Regional Assistant Director for Operations of DAR Region V and not as a
lawyer. He added that the disbarment complaint against him is not only malicious for
lack of legal basis but is also meant to harass and intimidate DAR employees in
implementing the CARP.32
After the complainants filed their Consolidated Reply,33 the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.
IBP
Commissioner
Milagros
San
Juan
(Commissioner
San
Juan)
Recommended34 that Florin be "suspended from the practice of law for three (3) years
for knowingly rendering an unjust judgment, Orders and Resolutions adverse and
prejudicial to the interests of the Complainants."
Commissioner San Juan, meanwhile, recommended that the charges against
Jornales and Vega be dismissed for failure of the complainants to substantiate the
charges against them.35
Commissioner San Juans recommendation against Florin is based on the
findings36 of the CA in its Decision dated December 26, 2000 in CA-G.R. SP No.
53174,37 which reads:
The Petition for Certiorari filed by the complainants before the Court of Appeals was
treated as a petition for review and the court found the following errors:
"1) Respondent DAR Secretary has no jurisdiction over the subject properties being
devoted to pasture and livestock and already classified as residential and industrial

63

land, hence, outside the coverage of Republic Act 6657. (Comprehensive Agrarian
Reform Law) The generation and issuance of Certificate of Landownership Award
(CLOA) was therefore void;"

This Court agrees with the findings of the IBP Board of Governors but modifies the
penalty to be imposed.
Rule 138, Section 27 of the Rules of Court provides:

2) Being outside the coverage of CARL (Republic Act 6657), respondent Hon. Isabel
E. Florin who is exercising delegated jurisdiction from the DARAB has no jurisdiction
over Petitioners Properties as held in Krus na Ligas Farmers Coop vs. University of
the Philippines; G.R. No. 107022, 8 December 1992, which is squarely in point with
the case at bar."
Anent the issue regarding the qualified beneficiaries of the subject land, the Court
ruled thus "Assuming that the lands are indeed agricultural, we cannot understand
why the DAR awarded them to members of respondent Baribag and not to the
farmers in the area, in violation of Sec. 22 of the CARL x x x."
The court further stated "We cannot xxx close this discussion without mentioning
our observation on the actuations of Regional Agrarian Reform Adjudicator Isabel
Florin. Just why she issued a writ of execution and eventually a Writ of Possession in
favor of respondent Baribag puzzles us no end. She knew that Baribag is not a party
in petitioners application for exclusion filed with the Office of DAR Regional Director
Percival Dalugdug. Obviously, she never acquired jurisdiction over Baribag. She also
knew that petitioners appealed to the DAR Secretary from the Order of Regional
Director Dalugdug dismissing petitioners application for exclusion. Clearly, such order
was not yet final and executory when she issued the assailed writs of execution and
possession. Thus, the writ are [sic] void and would be set aside."38
On May 26, 2006, the IBP Board of Governors adopted Resolution No. XVII-2006-282
modifying the recommended penalty, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,
with modification, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully supported by the evidence on
record and the applicable laws and rules, and for knowingly rendering an unjust
Judgment, Orders and Resolutions, adverse and prejudicial to the interest of the
complainants, Atty. Isabel F. Florin is hereby SUSPENDED from the practice of law
for one (1) year. The charges against Atty. Marcelino Jornales and Atty. Peter Vega
are DISMISSED for failure of the complainants to substantiate the charges against
Respondents.39
In her opposition,40 Florin averred that: (1) jurisdiction was acquired over BARIBAG at
the time it filed a petition for the implementation of the Order dated February 15,
1999; (2) the DARAB has jurisdiction to issue the CLOAs; (3) as RARAD, she has
concurrent jurisdiction with DARAB; (4) the Berenguers were not denied due process;
and (5) the Berenguers never questioned the regularity of the DARs acquisition of
their landholding nor did they file a petition for the cancellation of the CLOAs issued to
BARIBAG.

SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds


therefore.A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice or other gross misconduct
in such office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is required to take
before the admission to practice, or for a wilful disobedience appearing as an attorney
for a party without authority so to do. x x x.
In Lahm III v. Mayor, Jr.,41 the Court ruled that:
A lawyer may be suspended or disbarred for any misconduct showing any fault or
deficiency in his moral character, honesty, probity or good demeanor. Gross
misconduct is any inexcusable, shameful or flagrant unlawful conduct on the part of a
person concerned with the administration of justice; i.e., conduct prejudicial to the
rights of the parties or to the right determination of the cause. The motive behind this
conduct is generally a premeditated, obstinate or intentional purpose.42 (Citations
omitted)
In the instant case, the Berenguers want this Court to impose disciplinary sanction
against the three (3) respondents as members of the bar. The grounds asserted by
the complainants in support of the charges against the respondents, however, are
intrinsically connected with the discharge of their quasi-judicial functions.
Nevertheless, in Atty. Vitriolo v. Atty. Dasig,43 the Court already ruled that if a
misconduct as a government official also constitutes a violation of his oath as a
lawyer, then a lawyer may be disciplined by this Court as a member of the Bar, viz:
Generally speaking, a lawyer who holds a government office may not be disciplined
as a member of the Bar for misconduct in the discharge of his duties as a government
official. However, if said misconduct as a government official also constitutes a
violation of his oath as a lawyer, then he may be disciplined by this Court as a
member of the Bar.
xxxx
A member of the Bar who assumes public office does not shed his professional
obligations. Hence, the Code of Professional Responsibility, promulgated on June 21,
1988, was not meant to govern the conduct of private practitioners alone, but of all
lawyers including those in government service. This is clear from Canon 6 44 of said
Code. Lawyers in government are public servants who owe the utmost fidelity to the
public service. Thus, they should be more sensitive in the performance of their
professional obligations, as their conduct is subject to the ever-constant scrutiny of
the public.

64

x x x For a lawyer in public office is expected not only to refrain from any act or
omission which might tend to lessen the trust and confidence of the citizenry in
government, she must also uphold the dignity of the legal profession at all times and
observe a high standard of honesty and fair dealing.1wphi1 Otherwise said, a lawyer
in government service is a keeper of the public faith and is burdened with high degree
of social responsibility, perhaps higher than her brethren in private
practice.45 (Citations omitted and emphasis ours)
Thus, in Tadlip v. Atty. Borres, Jr., 46 the Court ruled that an administrative case against
a lawyer for acts committed in his capacity as provincial adjudicator of the DARAB
may be likened to administrative cases against judges considering that he is part of
the quasi-judicial system of our government.47
Similarly in this case, Florin, being part of the quasi-judicial system of our
government, performs official functions of a RARAD that are akin to those of judges.
Accordingly, the present controversy may be likened that of a judge whose decision,
including the manner of rendition, is made subject of an administrative complaint.
Going now to the acts complained of, Section 29 of DAR Administrative Order No. 0600 provides:
SEC. 29. Effect of Appeal.Appeal to the Secretary, the Office of the President, or
the Court of Appeals shall have the following effects:
(a) Appeal from the Regional Director or Undersecretary to the Secretary.The
appeal shall stay the order appealed from unless the Secretary directs execution
pending appeal, as he may deem just, considering the nature and circumstances of
the case (Executive Order No. 292 [1987], Book VII, Chapter 4, Sec. 21).
xxxx
Based on the foregoing provision, the appeal of the Berenguers to the DAR Secretary
clearly stayed the implementation of Regional Director Dalugdugs Order dated
February 15, 1999. Moreover, it is the DAR Secretary who has jurisdiction to order
execution pending appeal. Records reveal that there was no order by the DAR
Secretary directing execution of the Order dated February 15, 1999 during the
pendency of the Berenguers appeal.

Sec. 1. Execution Upon Final Order or Decision.Execution shall issue upon an


order, resolution or decision that finally disposes of the action or proceeding. Such
execution shall issue as a matter of course and upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
The Adjudicator concerned may, upon certification by the proper officer that a
resolution, order or decision has been served to the counsel or representative on
record and to the party himself, and has become final and executory, and, upon
motion or motu proprio, issue a writ of execution ordering the DAR Sheriff or any DAR
officer to enforce the same. In appropriate cases, the Board or any of its Members or
its Adjudicator shall deputize and direct the Philippine National Police, Armed Forces
of the Philippines or any of their component units or other law enforcement agencies
in the enforcement of any final order, resolution or decision.
Sec. 2. Execution Pending Appeal. Any motion for execution of the decision of the
Adjudicator pending appeal shall be filed before the Board which may grant the same
upon meritorious grounds, upon the posting of a sufficient bond in the amount
conditioned for the payment of damages which the aggrieved party may suffer, in the
event that the final order or decision is reversed on appeal, provided that the bond
requirement shall not apply if the movant is a farmer-beneficiary/pauper litigant.
(Emphasis ours)
In this case, the Order dated February 15, 1999 of DAR Regional Director Dalugdug
denying the Berenguers application for exclusion from CARP is yet to become final
and executory as it was seasonably appealed to the DAR Secretary. There is also
nothing in the records that will show whether BARIBAG posted a bond pursuant to the
Rules.
While a judge may not be disciplined for error of judgment absent proof that such
error was made with a conscious and deliberate intent to cause an injustice, 51 the
facts on hand prove otherwise. Florins issuance of the writ of execution and writ of
possession in order to fully implement Regional Director Dalugdugs Order dated
February 15, 1999 clearly constitutes ignorance of the law for as a rule, a writ of
execution is issued only after the subject judgment or order has already become final
and executory.52 As aptly stated by IBP Commissioner San Juan, Florin ordered the
issuance of such writs despite the pendency of the appeal with the
DARAB.53 Consequently, the Court finds merit in the recommendation of suspension.
As to the penalty

Corollarily, Rule 39 of the 1997 Rules of Court provides for the instances when
execution may be had, namely: (1) after a decision or order has become final and
executory;48 (2) pending appeal, only upon good reasons to be stated in a special
order after due hearing;49 and (3) execution of several, separate or partial
judgments.50
Moreover, Rule XX of the 2009 Rules of the DARAB reads:

Judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate
intent to do injustice will be administratively sanctioned.54 In this case, it appears,
however, that this is the first time that Florin has been made administratively liable.
Although there is no showing that malice or bad faith attended the commission of the
acts complained of, the same does not negate the fact that Florin executed an act
that would cause an injustice to the Berenguers. To our mind, the act of issuing the
writ of execution and writ of possession is not simply an honest error in judgment but
an obstinate disregard of the applicable laws and jurisprudence.

65

With all these, the Court deems it reasonable to reconsider the penalty recommended
and instead impose the penalty of suspension for three (3) months55 without pay. As
also held in Rallos v. Judge Gako, Jr., 56 three (3) months suspension without pay was
imposed against a judge after finding out that the ignorance of the law he committed
was not tainted with bad faith.
With respect to the complaint against Jornales and Vega, the Court agrees and
adopts the finding of the IBP that no sufficient evidence was adduced to substantiate
the charges against them. Hence, the complaint against them should be dismissed.
WHEREFORE, in view of the foregoing, respondent ATTY. ISABEL E. FLORIN is
found guilty of violating the Code of Professional Responsibility. Accordingly, she is
penalized with SUSPENSION from the practice of law for three (3) months effective
upon notice hereof. The complaint against Atty. Marcelino Jornales and Atty. Pedro
Vega is DISMISSED for lack of sufficient evidence.
Let copies of this Decision be entered in her record as attorney and be furnished the
Integrated Bar of the Philippines and all courts in the country for their information and
guidance.
SO ORDERED.

66

Canon 6.02
A.M. No. 1418 August 31, 1976
JOSE
vs.
ATTORNEY MIGUEL A. SAN JUAN, respondent.

MISAMIN, complainant,

RESOLUTION

Then came a detailed account in such Report of the proceedings: "Pursuant to the
resolution of this Honorable Court of March 21, 1975, the Solicitor General's Office
set the case for investigation on July 2 and 3, 1975. The counsel for the complainant
failed to appear, and the investigation was reset to August 15, 1975. At the latter date,
the same counsel for complainant was absent. In both instances, the said counsel did
not file written motion for postponement but merely sent the complainant to explain
the reason for his absence. When the case was again called for hearing on October
16, 1975, counsel for complainant failed once more to appear. The complainant who
was present explained that his lawyer was busy "preparing an affidavit in the Court of
First Instance of Manila." When asked if he was willing to proceed with the hearing' in
the absence of his counsel, the complainant declared, apparently without any
prodding, that he wished his complaint withdrawn. He explained that he brought the
present action in an outburst of anger believing that the respondent San Juan took
active part in the unjust dismissal of his complaint with the NLRC. The complainant
added that after reexamining his case, he believed the respondent to be without fault
and a truly good person." 2

FERNANDO, J.:
It certainly fails to reflect credit on a captain in the Metro Manila Police Force and a
member of the bar, respondent Miguel A. San Juan, to be charged with being the
legal representative of certain establishments allegedly owned by Filipinos of Chinese
descent and, what is worse, with coercing an employee, complainant Jose Misamin,
to agree to drop the charges filed by him against his employer Tan Hua, owner of
New Cesar's Bakery, for the violation of the Minimum Wage Law. There was a denial
on the part of respondent. The matter was referred to the Office of the SolicitorGeneral for investigation, report and recommendation. Thereafter, it would seem
there was a change of heart on the part of complainant. That could very well be the
explanation for the non- appearance of the lawyer employed by him at the scheduled
hearings. The efforts of the Solicitor General to get at the bottom of things were thus
set at naught. Under the circumstances, the outcome of such referral was to be
expected. For the law is rather exacting in its requirement that there be competent
and adequate proof to make out a case for malpractice. Necessarily, the
recommendation was one of the complaints being dismissed, This is one of those
instances then where this Court is left with hardly any choice. Respondent cannot be
found guilty of malpractice.
Respondent, as noted in the Report of the Solicitor-General, "admits having appeared
as counsel for the New Cesar's Bakery in the proceeding before the NLRC while he
held office as captain in the Manila Metropolitan Police. However, he contends that
the law did not prohibit him from such isolated exercise of his profession. He
contends that his appearance as counsel, while holding a government position, is not
among the grounds provided by the Rules of Court for the suspension or removal of
attorneys. The respondent also denies having conspired with the complainant
Misamin's attorney in the NLRC proceeding in order to trick the complainant into
signing an admission that he had been paid his separation pay. Likewise, the
respondent denies giving illegal protection to members of the Chinese community in
Sta. Cruz, Manila." 1

The Report of the Solicitor-General did not take into account respondent's practice of
his profession notwithstanding his being a police official, as "this is not embraced in
Section 27, Rule 138 of the Revised Rules of Court which provides the grounds for
the suspension or removal of an attorney. The respondent's appearance at the labor
proceeding notwithstanding that he was an incumbent police officer of the City of
Manila may appropriately be referred to the National Police Commission and the Civil
Service Commission." 3 As a matter of fact, separate complaints on this ground have
been filed and are under investigation by the Office of the Mayor of Manila and the
National Police Commission." As for the charges that respondent conspired with
complainant's counsel to mislead complainant to admitting having' received his
separation pay and for giving illegal protection to aliens, it is understandable why the
Report of the Solicitor-General recommended that they be dismissed for lack of
evidence.
The conclusion arrived at by the Solicitor-General that the complaint cannot prosper
is in accordance with the settled law. As far back as in re Tionko, 4 decided in 1922,
the authoritative doctrine was set forth by Justice Malcolm in this wise: "The serious
consequences of disbarment or suspension should follow only where there is a clear
preponderance of evidence against the respondent. The presumption is that the
attorney is innocent of the charges preferred and has performed his duty as an officer
of the court in accordance with his oath." 5 The Tionko doctrine has been
subsequently adhered to. 6
This resolution does not in any wise take into consideration whatever violations there
might have been of the Civil Service Law in view of respondent practicing his
profession while holding his position of Captain in the Metro Manila police force. That
is a matter to be decided in the administrative proceeding as noted in the
recommendation of the Solicitor-General. Nonetheless, while the charges have to be
dismissed, still it would not be inappropriate for respondent member of the bar to
avoid all appearances of impropriety. Certainly, the fact that the suspicion could be
entertained that far from living true to the concept of a public office being a public
trust, he did make use, not so much of whatever legal knowledge he possessed, but

67

the influence that laymen could assume was inherent in the office held not only to
frustrate the beneficent statutory scheme that labor be justly compensated but also to
be at the beck and call of what the complainant called alien interest, is a matter that
should not pass unnoticed. Respondent, in his future actuations as a member of the
bar. should refrain from laying himself open to such doubts and misgivings as to his
fitness not only for the position occupied by him but also for membership in the bar.
He is not worthy of membership in an honorable profession who does not even take
care that his honor remains unsullied
WHEREFORE, this administrative complaint against respondent Miguel A. San Juan
is dismissed for not having been duly proved. Let a copy of this resolution be spread
on his record.
Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

68

Canon 6.03
G.R. Nos. 151809-12. April 12, 2005
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioners,
vs.
SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN,
FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI
NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG
(represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C.
TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO,
MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T.
WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED
BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA
BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE
TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES,
IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC.,
MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND
RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE
FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO
HOLDINGS
&
DEVELOPMENT
CORP.,
and
ATTY.
ESTELITO
P.
MENDOZA, Respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns on
one hand, the efforts of the Bar to upgrade the ethics of lawyers in government
service and on the other, its effect on the right of government to recruit competent
counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current account
with the Central Bank.1 It was later found by the Central Bank that GENBANK had
approved various loans to directors, officers, stockholders and related interests
totaling P172.3 million, of which 59% was classified as doubtful and P0.505 million as
uncollectible.2 As a bailout, the Central Bank extended emergency loans to
GENBANK which reached a total of P310 million.3 Despite the mega loans,
GENBANK failed to recover from its financial woes. On March 25, 1977, the Central
Bank issued a resolution declaring GENBANKinsolvent and unable to resume
business with safety to its depositors, creditors and the general public, andordering
its liquidation.4 A public bidding of GENBANKs assets was held from March 26 to
28,
1977,
wherein
the Lucio Tan
group
submitted
the winning
bid.5 Subsequently, former Solicitor General Estelito P. Mendoza filed a

petition with the then Court of First Instance praying for the assistance and
supervision of the court in GENBANKs liquidation as mandated by Section 29 of
Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the
first acts of President Corazon C. Aquino was to establish the Presidential
Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint
for "reversion, reconveyance, restitution, accounting and damages" against
respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos,
Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano
Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola,
William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking
Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc.,
Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation,
Grandspan Development Corp., Himmel Industries, Iris Holdings and Development
Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw
Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc.,
Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp.,
(collectively referred to herein as respondents Tan, et al.), then President Ferdinand
E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and
Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second
Division of the Sandiganbayan.6 In connection therewith, the PCGG issued
several writs of sequestration on properties allegedly acquired by the above-named
persons by taking advantage of their close relationship and influence with former
President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued by
the PCGG.7 After the filing of the parties comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed as Civil
Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented
by their counsel, former Solicitor General Estelito P. Mendoza, who has then resumed
his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza
as counsel for respondents Tan,et al. with the Second Division of
the Sandiganbayan in Civil Case Nos. 00058 and 0096-0099.9 The motions alleged
that respondent Mendoza, as then Solicitor General10 and counsel to Central
Bank, "actively intervened"in the liquidation of GENBANK, which was subsequently
acquired by respondents Tan, et al. and became Allied Banking Corporation.
Respondent Mendoza allegedly "intervened" in the acquisition of GENBANK by
respondents Tan, et al. when, in his capacity as then Solicitor General,
he advised the Central Banks officials on the procedureto bring about GENBANKs
liquidation and appeared as counsel for the Central Bank in connection with its
petition for assistance in the liquidation of GENBANK which he filed with the Court of
First Instance (now Regional Trial Court) of Manila and was docketed as Special

69

Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of the Code of
Professional
Responsibility. Rule
6.03 prohibits
former
government
lawyers from accepting "engagement or employment in connection with any matter in
which he had intervened while in said service."

The key issue is whether Rule 6.03 of the Code of Professional Responsibility
applies to respondent Mendoza. Again, the prohibition states: "A lawyer shall not,
after leaving government service, accept engagement or employment in connection
with any matter in which he had intervened while in the said service."

On April 22, 1991 the Second Division of the Sandiganbayan issued a


resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case
No. 0005.11 It found that the PCGG failed to prove the existence of an inconsistency
between respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did
not take a position adverse to that taken on behalf of the Central Bank during his term
as Solicitor General.12 It further ruled that respondent Mendozas appearance as
counsel for respondents Tan, et al. was beyond the one-year prohibited period under
Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the
year 1986. The said section prohibits a former public official or employee from
practicing his profession in connection with any matter before the office he used to be
with within one year from his resignation, retirement or separation from public
office.13 The PCGG did not seek any reconsideration of the ruling.14

I.A. The history of Rule 6.03

It
appears
that
Civil
Case
Nos.
0096-0099
were transferred from
the Sandiganbayans Second Division to the Fifth Division. 15 In its resolution dated
July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGGs
motion to disqualify respondent Mendoza. 16 It adopted the resolution of its Second
Division dated April 22, 1991, and observed that the arguments were the same in
substance as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought
reconsideration of the ruling but its motion was denied in its resolution dated
December 5, 2001.17
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July
11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a
petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.18 The PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
resolutions contending that: 1) Rule 6.03 of the Code of Professional Responsibility
prohibits a former government lawyer from accepting employment in connection with
any matter in which he intervened; 2) the prohibition in the Rule is not time-bound; 3)
that Central Bank could not waive the objection to respondent Mendozas appearance
on behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory,
thus res judicata does not apply.19
The petition at bar raises procedural and substantive issues of law. In view, however,
of the import and impact of Rule 6.03 of the Code of Professional Responsibility to the
legal profession and the government, we shall cut our way and forthwith resolve the
substantive issue.
I
Substantive Issue

A proper resolution of this case necessitates that we trace the historical lineage of
Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were
pervasive in England and other parts of Europe. The early statements of standards
did not resemble modern codes of conduct. They were not detailed or collected in one
source but surprisingly were comprehensive for their time. The principal thrust of the
standards was directed towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any obligation to the client.
The formulations of the litigation duties were at times intricate, including specific
pleading standards, an obligation to inform the court of falsehoods and a duty to
explore settlement alternatives. Most of the lawyer's other basic duties -- competency,
diligence, loyalty, confidentiality, reasonable fees and service to the poor -- originated
in the litigation context, but ultimately had broader application to all aspects of a
lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary
America did not differ markedly from those in England. The colonies and early states
used oaths, statutes, judicial oversight, and procedural rules to govern attorney
behavior. The difference from England was in the pervasiveness and continuity of
such regulation. The standards set in England varied over time, but the variation in
early America was far greater. The American regulation fluctuated within a single
colony and differed from colony to colony. Many regulations had the effect of setting
some standards of conduct, but the regulation was sporadic, leaving gaps in the
substantive standards. Only three of the traditional core duties can be fairly
characterized as pervasive in the formal, positive law of the colonial and postrevolutionary period: the duties of litigation fairness, competency and reasonable
fees.20
The nineteenth century has been termed the "dark ages" of legal ethics in the
United States. By mid-century, American legal reformers were filling the void in two
ways. First, David Dudley Field, the drafter of the highly influential New York "Field
Code," introduced a new set of uniform standards of conduct for lawyers. This
concise statement of eight statutory duties became law in several states in the
second half of the nineteenth century. At the same time, legal educators, such as
David Hoffman and George Sharswood, and many other lawyers were working to
flesh out the broad outline of a lawyer's duties. These reformers wrote about legal
ethics in unprecedented detail and thus brought a new level of understanding to a
lawyer's duties. A number of mid-nineteenth century laws and statutes, other than the
Field Code, governed lawyer behavior. A few forms of colonial regulations e.g., the
"do no falsehood" oath and the deceit prohibitions -- persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior.

70

The developing law of agency recognized basic duties of competence, loyalty and
safeguarding of client property. Evidence law started to recognize with less
equivocation the attorney-client privilege and its underlying theory of confidentiality.
Thus, all of the core duties, with the likely exception of service to the poor, had some
basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these
standards were isolated and did not provide a comprehensive statement of a lawyer's
duties. The reformers, by contrast, were more comprehensive in their discussion of a
lawyer's duties, and they actually ushered a new era in American legal ethics.21

problems peculiar to former government lawyers, Canon 36 was minted which


disqualified them both for "adverse-interest conflicts" and "congruent-interest
representation conflicts."29 The rationale for disqualification is rooted in a concern that
the government lawyers largely discretionary actions would be influenced by the
temptation to take action on behalf of the government client that later could be to the
advantage of parties who might later become private practice clients.30 Canon
36 provides, viz.:
36. Retirement from judicial position or public employment

Toward the end of the nineteenth century, a new form of ethical standards began to
guide lawyers in their practice the bar association code of legal ethics. The bar
codes were detailed ethical standards formulated by lawyers for lawyers. They
combined the two primary sources of ethical guidance from the nineteenth century.
Like the academic discourses, the bar association codes gave detail to the statutory
statements of duty and the oaths of office. Unlike the academic lectures, however, the
bar association codes retained some of the official imprimatur of the statutes and
oaths. Over time, the bar association codes became extremely popular that states
adopted them as binding rules of law. Critical to the development of the new codes
was the re-emergence of bar associations themselves. Local bar associations formed
sporadically during the colonial period, but they disbanded by the early nineteenth
century. In the late nineteenth century, bar associations began to form again, picking
up where their colonial predecessors had left off. Many of the new bar associations,
most notably the Alabama State Bar Association and the American Bar Association,
assumed on the task of drafting substantive standards of conduct for their members.22
In 1887, Alabama became the first state with a comprehensive bar association code
of ethics. The 1887 Alabama Code of Ethics was the model for several states codes,
and it was the foundation for the American Bar Association's (ABA) 1908 Canons of
Ethics.23
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession
was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1
to 32 of the ABA Canons of Professional Ethics.24
As early as 1924, some ABA members have questioned the form and function of the
canons. Among their concerns was the "revolving door" or "the process by which
lawyers and others temporarily enter government service from private life and then
leave it for large fees in private practice, where they can exploit information, contacts,
and influence garnered in government service."25 These concerns were classified
as adverse-interest
conflicts" and "congruent-interest
conflicts." "Adverseinterest conflicts" exist where the matter in which the former government lawyer
represents a client in private practice is substantially related to a matter that the
lawyer dealt with while employed by the government and the interests of the current
and former are adverse.26 On the other hand, "congruent-interest representation
conflicts" are unique to government lawyers and apply primarily to former
government lawyers.27 For several years, the ABA attempted to correct and update
the canons through new canons, individual amendments and interpretative opinions.
In 1928, the ABA amended one canon and added thirteen new canons. 28 To deal with

A lawyer should not accept employment as an advocate in any matter upon the merits
of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ
should not, after his retirement, accept employment in connection with any
matter he has investigated or passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and
added Canons 46 and 47 in 1933 and 1937, respectively.31
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47
of the ABA Canons of Professional Ethics.32
By the middle of the twentieth century, there was growing consensus that the ABA
Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis
Powell asked for the creation of a committee to study the "adequacy and
effectiveness" of the ABA Canons. The committee recommended that the canons
needed substantial revision, in part because the ABA Canons failed to distinguish
between "the inspirational and the proscriptive" and were thus unsuccessful in
enforcement. The legal profession in the United States likewise observed that Canon
36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification
of lawyers for negligible participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model
Code of Professional Responsibility.33 The basic ethical principles in the Code of
Professional Responsibility were supplemented by Disciplinary Rules that defined
minimum rules of conduct to which the lawyer must adhere. 34 In the case of Canon
9, DR 9-101(b)35 became the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional Responsibility, and, in
August of 1969, the ABA House of Delegates approved theModel Code.36
Despite these amendments, legal practitioners remained unsatisfied with the results
and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional
Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model
Rules of Professional Responsibility. The Model Rules used the "restatement
format," where the conduct standards were set-out in rules, with comments following
each rule. The new format was intended to give better guidance and clarity for

71

enforcement "because the only enforceable standards were the black letter Rules."
The Model Rules eliminated the broad canons altogether and reduced the emphasis
on narrative discussion, by placing comments after the rules and limiting comment
discussion to the content of the black letter rules. The Model Rules made a number of
substantive improvements particularly with regard to conflicts of interests.37 In
particular, the ABA did away with Canon 9, citing the hopeless dependence of
the concept of impropriety on the subjective views of anxious clients as well as
the norms indefinite nature.38
In cadence with these changes, the Integrated Bar of the Philippines (IBP)
adopted a proposed Code of Professional Responsibility in 1980 which it
submitted to this Court for approval. The Code was drafted to reflect the local
customs, traditions, and practices of the bar and to conform with new realities. On
June 21, 1988, this Court promulgated the Code of Professional
Responsibility.39 Rule 6.03 of the Code of Professional Responsibility deals
particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened while in
said service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of
paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the
expansive phrase "investigated and passed upon" with the word"intervened." It is,
therefore, properly applicable to both "adverse-interest conflicts" and "congruentinterest conflicts."
The case at bar does not involve the "adverse interest" aspect of Rule 6.03.
Respondent Mendoza, it is conceded, has no adverse interest problem when he
acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of
respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
theSandiganbayan. Nonetheless, there remains the issue of whether there exists
a "congruent-interest conflict"sufficient to disqualify respondent Mendoza from
representing respondents Tan, et al.
I.B. The "congruent interest" aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of "matter" referred to in the rule and, second, the metes and bounds of
the "intervention" made by the former government lawyer on the "matter." The
American Bar Association in its Formal Opinion 342, defined "matter" as any
discrete, isolatable act as well as identifiable transaction or conduct involving a
particular situation and specific party, and not merely an act of drafting, enforcing or
interpreting government or agency procedures, regulations or laws, or briefing
abstract principles of law.
Firstly, it is critical that we pinpoint the "matter" which was the subject of intervention
by respondent Mendoza while he was the Solicitor General. The PCGG relates the

following acts of respondent Mendoza as constituting the"matter" where he


intervened as a Solicitor General, viz:40
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth
Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5,
2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents
Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively
intervened in the closure of GENBANK by advising the Central Bank on how to
proceed with the said banks liquidation and even filing the petition for its liquidation
with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared
by certain key officials of the Central Bank, namely, then Senior Deputy Governor
Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota
P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of
Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and
he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that
studies and evaluation had been made since the last examination of the bank as of
August 31, 1976 and it is believed that the bank can not be reorganized or placed in a
condition so that it may be permitted to resume business with safety to its depositors
and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of
the bank and indicate the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan approved by the
Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting
the proceedings which had been taken and praying the assistance of the Court in the
liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the petition

72

for assistance in the banks liquidation. The pertinent portion of the said minutes
reads:
The Board decided as follows:

all the assets and administer the same for the benefit of its creditors, exercising all the
powers necessary for these purposes including, but not limited to, bringing suits and
foreclosing mortgages in the name of the bank or non-bank financial intermediary
performing quasi-banking functions.

...

...

E. To authorize Management to furnish the Solicitor General with a copy of the


subject memorandum of the Director, Department of Commercial and Savings Bank
dated March 29, 1977, together with copies of:

If the Monetary Board shall determine and confirm within the said period that the bank
or non-bank financial intermediary performing quasi-banking functions is insolvent or
cannot resume business with safety to its depositors, creditors and the general public,
it shall, if the public interest requires, order its liquidation, indicate the manner of its
liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor
General, file a petition in the Court of First Instance reciting the proceedings which
have been taken and praying the assistance of the court in the liquidation of such
institution. The court shall have jurisdiction in the same proceedings to adjudicate
disputed claims against the bank or non-bank financial intermediary performing quasibanking functions and enforce individual liabilities of the stockholders and do all that
is necessary to preserve the assets of such institution and to implement the
liquidation plan approved by the Monetary Board. The Monetary Board shall
designate an official of the Central Bank, or a person of recognized competence in
banking or finance, as liquidator who shall take over the functions of the receiver
previously appointed by the Monetary Board under this Section. The liquidator shall,
with all convenient speed, convert the assets of the banking institution or non-bank
financial intermediary performing quasi-banking functions to money or sell, assign or
otherwise dispose of the same to creditors and other parties for the purpose of paying
the debts of such institution and he may, in the name of the bank or non-bank
financial intermediary performing quasi-banking functions, institute such actions as
may be necessary in the appropriate court to collect and recover accounts and assets
of such institution.

1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the


Monetary Board, dated March 25, 1977, containing a report on the current situation of
Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated
March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the
Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A.
No. 265, as amended by P.D. No. 1007, a repot on the state of insolvency of
Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor General for
his use in then CFI-praying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the "matter" or the act of respondent Mendoza as Solicitor
General involved in the case at bar is "advising the Central Bank, on how to
proceed with the said banks liquidation and even filing the petition for its liquidation
with the CFI of Manila." In fine, the Court should resolve whether his act of advising
the Central Bank on the legal procedure to liquidate GENBANK is included within
the concept of "matter" under Rule 6.03.The procedure of liquidation is given in
black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head
of the appropriate supervising or examining department or his examiners or agents
into the condition of any bank or non-bank financial intermediary performing quasibanking functions, it shall be disclosed that the condition of the same is one of
insolvency, or that its continuance in business would involve probable loss to its
depositors or creditors, it shall be the duty of the department head concerned
forthwith, in writing, to inform the Monetary Board of the facts, and the Board may,
upon finding the statements of the department head to be true, forbid the institution to
do business in the Philippines and shall designate an official of the Central Bank or a
person of recognized competence in banking or finance, as receiver to immediately
take charge of its assets and liabilities, as expeditiously as possible collect and gather

The provisions of any law to the contrary notwithstanding, the actions of the Monetary
Board under this Section and the second paragraph of Section 34 of this Act shall be
final and executory, and can be set aside by the court only if there is convincing proof
that the action is plainly arbitrary and made in bad faith. No restraining order or
injunction shall be issued by the court enjoining the Central Bank from implementing
its actions under this Section and the second paragraph of Section 34 of this Act,
unless there is convincing proof that the action of the Monetary Board is plainly
arbitrary and made in bad faith and the petitioner or plaintiff files with the clerk or
judge of the court in which the action is pending a bond executed in favor of the
Central Bank, in an amount to be fixed by the court. The restraining order or
injunction shall be refused or, if granted, shall be dissolved upon filing by the Central
Bank of a bond, which shall be in the form of cash or Central Bank cashier(s) check,
in an amount twice the amount of the bond of the petitioner or plaintiff conditioned
that it will pay the damages which the petitioner or plaintiff may suffer by the refusal or
the dissolution of the injunction. The provisions of Rule 58 of the New Rules of Court
insofar as they are applicable and not inconsistent with the provisions of this Section
shall govern the issuance and dissolution of the restraining order or injunction
contemplated in this Section.

73

Insolvency, under this Act, shall be understood to mean the inability of a bank or nonbank financial intermediary performing quasi-banking functions to pay its liabilities as
they fall due in the usual and ordinary course of business. Provided, however, That
this shall not include the inability to pay of an otherwise non-insolvent bank or nonbank financial intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly evidenced by a run on
the bank or non-bank financial intermediary performing quasi-banking functions in the
banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment
of a receiver under this Section shall be vested exclusively with the Monetary Board,
the provision of any law, general or special, to the contrary notwithstanding. (As
amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate
GENBANK is not the "matter"contemplated by Rule 6.03 of the Code of
Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in
stressing that the "drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law" are acts
which do not fall within the scope of the term "matter" and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No.
342. Be that as it may, the said act of respondent Mendoza which is
the "matter" involved in Sp. Proc. No. 107812 is entirely different from
the "matter" involved in Civil Case No. 0096. Again, the plain facts speak for
themselves. It is given that respondent Mendoza had nothing to do with the decision
of the Central Bank to liquidate GENBANK. It is also given that he did not participate
in the sale of GENBANK to Allied Bank. The "matter" where he got himself
involved was in informing Central Bank on theprocedure provided by law to liquidate
GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812
in the then Court of First Instance. The subject "matter" of Sp. Proc. No. 107812,
therefore, is not the same nor is related to but is different from the subject
"matter" in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of
the stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground
that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor
does it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of
the reorganized Allied Bank are ill-gotten is far removedfrom the issue of the
dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central
Bank due, among others, to the alleged banking malpractices of its owners and
officers. In other words, the legality of the liquidation of GENBANK is not an issue in
the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the
dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code
of Professional Responsibility cannot apply to respondent Mendoza because his
alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an
intervention on a matter different from the matter involved in Civil Case No.
0096.

Thirdly, we now slide to the metes and bounds of the "intervention" contemplated
by Rule 6.03. "Intervene" means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to
occur, fall, or come in between points of time or events . . . 3: to come in or between
by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two
things (Paris, where the same city lay on both sides of an intervening river . . .)41
On the other hand, "intervention" is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the
interests of others.42
There are, therefore, two possible interpretations of the word "intervene." Under
the first interpretation, "intervene" includes participation in a proceeding even if the
intervention is irrelevant or has no effect or little influence. 43 Under the second
interpretation, "intervene" only includes an act of a person who has the power to
influence the subject proceedings.44 We hold that this second meaning is more
appropriate to give to the word "intervention" under Rule 6.03 of the Code of
Professional Responsibility in light of its history. The evils sought to be remedied by
the Rule do not exist where the government lawyer does an act which can be
considered as innocuous such as "x x x drafting, enforcing or interpreting government
or agency procedures, regulations or laws, or briefing abstract principles of law."
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon
36 provided that a former government lawyer "should not, after his retirement, accept
employment in connection with any matter which he has investigated or passed
upon while in such office or employ." As aforediscussed, the broad sweep of the
phrase "which he has investigated or passed upon" resulted in unjust disqualification
of former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9101(b), the prohibition extended only to a matter in which the lawyer, while in the
government service, had "substantial responsibility." The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that "a lawyer shall not
represent a private client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee."
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No.
107812 is significant and substantial. We disagree. For one, the petition in the special
proceedings is an initiatory pleading, hence, it has to be signed by respondent
Mendoza as the then sitting Solicitor General. For another, the record is arid as to
theactual participation of respondent Mendoza in the subsequent proceedings.
Indeed, the case was in slumberville for a long number of years. None of the parties
pushed for its early termination. Moreover, we note that the petition filed merely seeks
the assistance of the court in the liquidation of GENBANK. The principal role of the
court in this type of proceedings is to assist the Central Bank in determining claims of
creditors against the GENBANK. The role of the court is not strictly as a court of
justice but as an agent to assist the Central Bank in determining the claims of

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creditors. In such a proceeding, the participation of the Office of the Solicitor General
is not that of the usual court litigator protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially by
the ABA which have not been without difficulties. To date, the legal profession in the
United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to assure
that its interpretation and application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance. Thus, the rule was not
interpreted to cause a chilling effect on government recruitment of able legal
talent. At present, it is already difficult for government to match compensation offered
by the private sector and it is unlikely that government will be able to reverse that
situation. The observation is not inaccurate that the only card that the government
may play to recruit lawyers is have them defer present income in return for the
experience and contacts that can later be exchanged for higher income in private
practice.45 Rightly, Judge Kaufman warned that the sacrifice of entering government
service would be too great for most men to endure should ethical rules prevent them
from engaging in the practice of a technical specialty which they devoted years in
acquiring and cause the firm with which they become associated to be
disqualified.46 Indeed, "to make government service more difficult to exit can only
make it less appealing to enter."47
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation
tactic to harass opposing counsel as well as deprive his client of competent legal
representation. The danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the District of Columbia
has noted "the tactical use of motions to disqualify counsel in order to delay
proceedings, deprive the opposing party of counsel of its choice, and harass and
embarrass the opponent," and observed that the tactic was "so prevalent in large civil
cases in recent years as to prompt frequent judicial and academic
commentary."48 Even the United States Supreme Court found no quarrel with the
Court of Appeals description of disqualification motions as "a dangerous game." 49 In
the case at bar, the new attempt to disqualify respondent Mendoza is difficult to
divine. The disqualification of respondent Mendoza has long been a dead issue. It
was resuscitated after the lapse of many years and only after PCGG has lost many
legal incidents in the hands of respondent Mendoza. For a fact, the recycled motion
for disqualification in the case at bar was filed more than four years after the filing of
the petitions for certiorari, prohibition and injunction with the Supreme Court which
were subsequently remanded to theSandiganbayan and docketed as Civil Case
Nos. 0096-0099.50 At the very least, the circumstances under which the motion to
disqualify in the case at bar were refiled put petitioners motive as highly suspect.

Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the
prejudice to the client which will be caused by its misapplication. It cannot be
doubted that granting a disqualification motion causes the client to lose not only the
law firm of choice, but probably an individual lawyer in whom the client has
confidence.51 The client with a disqualified lawyer must start again often without the
benefit of the work done by the latter.52 The effects of this prejudice to the right to
choose an effective counsel cannot be overstated for it can result in denial of due
process.
The Court has to consider also the possible adverse effect of a truncated
reading of the rule on the official independence of lawyers in the government
service. According to Prof. Morgan: "An individual who has the security of knowing he
or she can find private employment upon leaving the government is free to work
vigorously, challenge official positions when he or she believes them to be in error,
and resist illegal demands by superiors. An employee who lacks this assurance of
private employment does not enjoy such freedom."53 He adds: "Any system that
affects the right to take a new job affects the ability to quit the old job and any limit on
the ability to quit inhibits official independence."54 The case at bar involves the
position of Solicitor General, the office once occupied by respondent Mendoza. It
cannot be overly stressed that the position of Solicitor General should be
endowed with a great degree of independence. It is this independence that allows
the Solicitor General to recommend acquittal of the innocent; it is this independence
that gives him the right to refuse to defend officials who violate the trust of their office.
Any undue dimunition of the independence of the Solicitor General will have a
corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former government
lawyer of the freedom to exercise his profession. Given the current state of our
law, the disqualification of a former government lawyer may extend to all members of
his law firm.55 Former government lawyers stand in danger of becoming the lepers of
the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the
Code of Professional Responsibility is the possible appearance of impropriety and
loss of public confidence in government. But as well observed, the accuracy of
gauging public perceptions is a highly speculative exercise at best56 which can lead to
untoward results.57 No less than Judge Kaufman doubts that the lessening of
restrictions as to former government attorneys will have any detrimental effect on that
free flow of information between the government-client and its attorneys which the
canons seek to protect.58 Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional Conduct 59 and some courts
have abandoned per sedisqualification based on Canons 4 and 9 when an actual
conflict of interest exists, and demand an evaluation of the interests of the defendant,
government, the witnesses in the case, and the public.60
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who"switch sides." It is claimed that "switching sides"
carries the danger that former government employee maycompromise confidential
official information in the process. But this concern does not cast a shadow in the

75

case at bar. As afore-discussed, the act of respondent Mendoza in informing the


Central Bank on the procedure how to liquidate GENBANK is a different matter from
the subject matter of Civil Case No. 0005 which is about the sequestration of the
shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that
confidential official information might be divulged is nil, if not inexistent. To be sure,
there are no inconsistent "sides" to be bothered about in the case at bar. For there
is no question that in lawyering for respondents Tan, et al., respondent Mendoza is
not working against the interest of Central Bank. On the contrary, he is indirectly
defending the validity of the action of Central Bank in liquidating GENBANK and
selling it later to Allied Bank. Their interests coincide instead of colliding. It is for
this reason that Central Bank offered no objection to the lawyering of respondent
Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no
switching of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be subject to a
conflict of loyalties while still in government service.61 The example given by the
proponents of this argument is that a lawyer who plans to work for the company that
he or she is currently charged with prosecuting might be tempted to prosecute less
vigorously.62 In the cautionary words of the Association of the Bar Committee in 1960:
"The greatest public risks arising from post employment conduct may well
occur during the period of employment through the dampening of aggressive
administration of government policies."63 Prof. Morgan, however, considers this
concern as "probably excessive."64 He opines "x x x it is hard to imagine that a private
firm would feel secure hiding someone who had just been disloyal to his or her last
client the government. Interviews with lawyers consistently confirm that law firms
want the best government lawyers the ones who were hardest to beat not the
least qualified or least vigorous advocates."65 But again, this particular concern is a
non factor in the case at bar. There is no charge against respondent Mendoza that
he advised Central Bank on how to liquidate GENBANK with an eye in later defending
respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the
interests of Central Bank and respondents Tan, et al. in the above cases.

Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility
should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule
cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are
disquieted by the fact that (1) when respondent Mendoza was the Solicitor General,
Rule 6.03 has not yet adopted by the IBP and approved by this Court, and (2) the bid
to disqualify respondent Mendoza was made after the lapse of time whose length
cannot, by any standard, qualify as reasonable. At bottom, the point they make
relates to the unfairness of the rule if applied without any prescriptive period and
retroactively, at that. Their concern is legitimate and deserves to be initially addressed
by the IBP and our Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos.
0096-0099 is denied.
No cost.
SO ORDERED.

Likewise, the Court is nudged to consider the need to curtail what is perceived as
the "excessive influence of former officials" or their "clout."66 Prof. Morgan again
warns against extending this concern too far. He explains the rationale for his
warning, viz: "Much of what appears to be an employees influence may actually be
the power or authority of his or her position, power that evaporates quickly upon
departure from government x x x."67 More, he contends that the concern can
be demeaning to those sitting in government. To quote him further: "x x x The idea
that, present officials make significant decisions based on friendship rather than on
the merit says more about the present officials than about their former co-worker
friends. It implies a lack of will or talent, or both, in federal officials that does not seem
justified or intended, and it ignores the possibility that the officials will tend to disfavor
their friends in order to avoid even the appearance of favoritism."68
III
The question of fairness

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