Also sometime in June 2006, Robert M.

Perez, complainants

A.C. No. 7820 ATTY. RICARDO M. SALOMON, JR.,

V.
ATTY. JOSELITO C. FRIAL,
September 12, 2008

driver, saw the said car in another Shell station near Kamias
Street. On December 16, 2006, Arlene Carmela M. Salomon
spotted it driven by bondsman Ferdinand Liquigan allegedly with

In his sworn complaint[1] filed before the Integrated Bar of the

Philippines (IBP) on December 22,

2006, complainant Atty.

Ricardo M. Salomon, Jr. charged respondent Atty. Joselito C. Frial

with violating his Lawyers Oath and/or gross misconduct arising
from

his

actuations

with

respect

to

two

attached

vehicles. Complainant, owner of the vehicles in question, asked

that Atty. Frial be disbarred.
The instant complaint has its beginning in the case, Lucy Lo v.
Ricardo Salomon et al., docketed as Civil Case No. 05-111825
before the Regional Trial Court in Manila, in which a writ of
preliminary attachment was issued in favor of Lucy Lo, Atty. Frials
client. The writ was used to attach two (2) cars of complainanta
black 1995 Volvo and a green 1993 Nissan Sentra.
According to Atty. Salomon, the attaching sheriff of Manila,
instead of depositing the attached cars in the court premises,
turned them over to Atty. Frial, Los counsel. Atty. Salomon claimed
that on several occasions, the Nissan Sentra was spotted being
used by unauthorized individuals. For instance, on December 26,
2005, barangay captain Andrew Abundo saw the Nissan Sentra in
front of a battery shop on Anonas St., Quezon City. On February
18, 2006, Architect Roberto S. Perez and three others saw and
took video and photo shots of the same car while in the Manresa
Shell station at P. Tuazon Blvd. corner 20th Avenue, Quezon City.

Atty. Frials consent. As Atty. Salomon further alleged, when the

misuse

of

the

car

was

reported,

paving

for

Liquigans

apprehension, Atty. Frial, in a letter, acknowledged having

authorized Liquigan to bring the car in custodia legis to a
mechanic.
As to the Volvo, Atty. Salomon averred that during mediation, Atty.
Frial deliberately withheld information as to its whereabouts. As it
turned out later, the Volvo was totally destroyed by fire, but the
court was not immediately put on notice of this development.
In his Answer,[2] Atty. Frial admitted taking custody of the cars thru
his own undertaking, without authority and knowledge of the
court. The subject vehicles, according to him, were first parked
near the YMCA building in front of the Manila City Hall where they
remained for four months. He said that when he went to check on
the vehicles condition sometime in December 2005, he found
them to have been infested and the wirings underneath the hoods
gnawed by rats. He denied personally using or allowing others the
use of the cars, stating in this regard that if indeed the Nissan
Sentra was spotted on Anonas St., Quezon City on December 26,
2005, it could have been the time when the car was being
transferred from the YMCA. The February 18, 2006 and June 2006
sightings, so Atty. Frial claimed, possibly occurred when the
Nissan Sentra was brought to the gas station to be filled up. He

said that the car could not have plausibly been spotted in Project

Nissan Sentra, the unyielding fact remains that it was being used

3 on December 13, 2006, parked as it was then in front of

by other persons during the time he was supposed to have

Liquigans house for mechanical check-up.

custody of it. In addition, whoever drove the Nissan Sentra on

those occasions must have received the car key from Atty. Frial.

During

the

mandatory

conference/hearing

before

the

IBP

When Atty. Frial took custody of the Nissan Sentra and Volvo cars,

Commission on Bar Discipline, the parties agreed on the following

he was duty bound to keep and preserve these in the same

key issues to be resolved: (1) whether or not Atty. Frial used the

condition he received them so as to fetch a good price should the

cars for his personal benefit; and (2) whether or not Atty. Frial was

vehicles be auctioned.

guilty of infidelity in the custody of the attached properties.

As to the burnt Volvo, Atty. Frial admitted receiving it in excellent
Thereafter and after the submission by the parties of their

condition and that there was no court order authorizing him to

respective position papers, the Commission submitted a Report

remove the car from the YMCA premises. Admitted too was the

dated October 9, 2007 which the IBP Board of Governors forthwith

fact that he secured the release of the Volvo on the strength

adopted and then transmitted to this Court. In the Report, the

alone of his own written undertaking; [3] and that the car was

following were deduced from the affidavits of Andrew Abundo,

almost totally destroyed by fire onFebruary 4, 2006 at 1:45 a.m.

Roberto Perez, Robert Perez, and Dante Batingan: (1) at no time

[4]

was Atty. Frial seen driving the Sentra; (2) Abundo learned that at

the circumstances behind the destruction, but admitted not

that time the car was spotted at the battery shop, the unnamed

reporting the burning to the court or the sheriff. While the burning

driver bought a new battery for the car which was not

of the car happened before the mediation hearing, Atty. Frial,

inappropriate since a battery was for the preservation of the car;

upon inquiry of Atty. Salomon, did not give information as to the

(3) Atty. Frial admitted that the Nissan Sentra was seen gassed up

whereabouts of the cars.

on February 18, 2006 and in June 2006 and there was no reason

The destruction of the Volvo in Atty. Frials residence was not an

to gas up the Nissan Sentra on those times unless it was being

ordinary occurrence; it was an event that could have not easily

used; (4) Roberto Perez said the Nissan Sentra was used to buy

escaped his attention. Accordingly, there is a strong reason to

goats meat; and (5) photos of the Nissan Sentra in different

believe that Atty. Frial deliberately concealed the destruction of

places obviously showed it was being used by others.

said vehicle from the court during the hearings in Civil Case No.

while parked in his residence. He could not, however, explain

05-111828, which were the opportune times to reveal the

In the same Report, the Commission observed that while there is
perhaps no direct evidence tying up Atty. Frial with the use of the

condition of the Volvo car.

On the basis of the foregoing premises, the Commission

concluded that Atty. Frial committed acts clearly bearing on his
integrity as a lawyer, adding that he failed to observe the
diligence required of him as custodian of the cars. The
Commission thus recommended that Atty. Frial be suspended
from the practice of law for one (1) year.
The findings and the recommendation of the Commission are
well-taken.
A writ of attachment issues to prevent the defendant from
disposing of the attached property, thus securing the satisfaction
of any judgment that may be recovered by the plaintiff or any
proper party.[5] When the objects of the attachment are destroyed,
then the attached properties would necessarily be of no value and
the attachment would be for naught.
From the evidence adduced during the investigation, there is no
question that Atty. Frial is guilty of grave misconduct arising from
his violation of Canon 11 of the Canons of Professional Ethics that
states:
11. Dealing with trust property
The lawyer should refrain from any action whereby
for his personal benefit or gain he abuses or takes
advantage of the confidence reposed in him by his
client.
Money of the client or collected for the client or
other
trust
property
coming
into
the

possession of the lawyer should be reported

and accounted for promptly and should not under
any circumstances be commingled with his own or
be used by him. (Emphasis ours.)
A lawyer is first and foremost an officer of the court. As such, he
is expected to respect the courts order and processes. Atty. Frial
miserably fell short of his duties as such officer. He trifled with the
writ of attachment the court issued.
Very patently, Atty. Frial was remiss in his obligation of
taking good care of the attached cars. He also allowed the use of
the Nissan Sentra car by persons who had no business using it.
He did not inform the court or at least the sheriff of the
destruction of the Volvo car. What is worse is that he took custody
of them without so much as informing the court, let alone
securing, its authority.
For his negligence and unauthorized possession of the cars,
we find Atty. Frial guilty of infidelity in the custody of the attached
cars and grave misconduct. We must mention, at this juncture,
that the victorious parties in the case are not without legal
recourse in recovering the Volvos value from Atty. Frial should
they desire to do so.
The Court, nevertheless, is not inclined to impose, as complainant
urges, the ultimate penalty of disbarment. The rule is that
disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and moral character of a lawyer as
an officer of the court and member of the bar. [6] With the view we
take of the case, there is no compelling evidence tending to show

that Atty. Frial intended to pervert the administration of justice for

some dishonest purpose.
Disbarment, jurisprudence teaches, should not be decreed
where

any

punishment

less

severe,

such

as

reprimand,

suspension, or fine, would accomplish the end desired. [7]This is as

it should be considering the consequence of disbarment on the
economic life and honor of the erring person. In the case of Atty.
Frial, the Court finds that a years suspension from the practice of
his legal profession will provide him with enough time to ponder
on and cleanse himself of his misconduct.
WHEREFORE, Atty. Joselito C. Frial is adjudged guilty of grave
misconduct and infidelity in the custody of properties in custodia
legis. He is hereby SUSPENDED from the practice of law for a
period of one (1) year effective upon his receipt of this
Decision. Let notice of this Decision be entered in his personal
record as an attorney with the Office of the Bar Confidant and
notice of the same served on the IBP and on the Office of the
Court Administrator for circulation to all the courts concerned.

A.C. No. 7813 CARLITO P. CARANDANG v. ATTY. GILBERT

S. OBMINA, Promulgated:
Respondent. April 21, 2009
DECISION

Na ang naturang kaso ay natapos at nadisisyunan

noong Enero 28, 2000 at ako ay natalo sa naturang
kaso.

The Case
This is a complaint filed by Carlito P. Carandang (Carandang)
against Atty. Gilbert S. Obmina (Atty. Obmina). Atty. Obmina was
counsel for Carandang in Civil Case No. B-5109 entitled Sps.
Emilia

A.

Carandang

and

Carlito

Carandang

v.

Ernesto

Alzona. Carandang brought suit for Atty. Obminas failure to inform

Carandang of the adverse decision in Civil Case No. B-5109 and
for failure to appeal the decision.

The Facts
The facts of CBD Case No.

Na ako ay may kasong isinampa kay ERNESTO T.

ALSONA tungkol sa aming bahay at lupa, at
isinampa sa BIAN RTC BRANCH 25, CIVIL CASE NO.
B-5109.

06-1869 in the Report and

Recommendation of the Commission on Bar Discipline of the

Integrated Bar of the Philippines (IBP) read as follows:
Complainants Sworn Statement is hereto reproduced
as follows:
SWORN STATEMENT
Ako si CARLITO P. CARANDANG, nasa wastong
gulang, may asawat mga anak, at nakatira sa 5450
Alberto Apt., St. Francis Homes, Halang Bian,
Laguna.

Na ang aking naging abogado ay si ATTY. GILBERT S.

OBMINA, tubong Quezon at bilang kababayan ako ay
nagtiwala
sa
kanyang
kakayahan
upang
maipagtanggol sa naturang kaso, ngunit taliwas sa
aking pananalig sa kanya ang nasabing kaso ay
napabayaan hanggang sa magkaroon ng desisyon
ang korte na kunin ang aking lupat bahay, sa madalit
sabi kami ay natalo ng hindi ko man lang nalalaman
at huli na ang lahat ng malaman ko dahil hindi na
kami pwedeng umapila.
Na nalaman ko lang na may desisyon na pala ang
korte pagkatapos ng anim na buwan. Ang aking anak
na si ROSEMARIE ay nagpunta sa BIAN, sa RTC ay
binati at tinatanong kung saan kayo nakatira at ang
sagot [ng] aking anak BAKIT? At ang sagot naman
[ng] taga RTC, HINDI MO BA ALAM NA ANG INYONG
KASO AY TAPOS NA. Nang marinig yon ay umuwi na
siya at sinabi agad sa akin. Tapos na daw yung kaso
[ng] ating bahay at ako ay pumunta sa opisina ni
ATTY. OBMINA at aking tinanong BAKIT DI MO SINABI
SA AKIN NA TAPOS NA ANG KASO? At ang sagot niya
sa akin AY WALA KANG IBABAYAD SA ABOGADO
DAHIL WALA KANG PERA PANG-APILAdahil sa sagot
sa akin ay para akong nawalan [ng] pag-asa sa kaso.
Lumapit ako sa Malacaang at binigay yung sulat pero
doon ay aking nakausap yung isang abogado at akoy
kanyang pinakinggan at aking inabot ang papeles at
aking pinakita at ang sabi ay hindi na pwede dahil
anim na buwan na [nang] lumipas ang kaso. Kaya

aking sinabi sa ATTY. ng Malacaang na hindi sinabi sa

akin agad ni ATTY. OBMINA na may order na pala ang
kaso.
Kaya ang ginawang paraan ay binigyan ako ng sulat
para ibigay sa IBP, at nang mabasa ang sulat ay
sinabi sa akin na doon sa SAN PABLO ang hearing, at
tinanong ako kung nasaan ang ATTORNEYS
WITHDRAWAL NYO? Ang sagot ko ay WALA HO, kaya
inutusan
ako
na
kunin
ang
ATTORNEYS
WITHDRAWAL at agad akong nagpunta sa opisina ni
ATTY. OBMINA at tinanong ko sa sekretarya niya
kung nasaan si ATTY. OBMINA ang sagot sa akin ay
nasa AMERICA NA! Kayat aking tinanong kung
sinong pwede magbigay sa akin ng attorneys
withdrawal at ang sabi ay yung anak nya na si
CARMELITSA OBMINA. Bumalik ako noong araw ng
Biyernes at aking nakuha, pero hindi na ako
nakabalik sa IBP dahil noong araw na iyon ay hindi
ko na kayang maglakad, kaya hindi na natuloy ang
hearing sa SAN PABLO.
CARLITO
P.
CARANDANG
Affiant
On November 16, 2006, the Commission on Bar Discipline,
through Rogelio A. Vinluan, the then Director for Bar
Discipline (now the incumbent Executive Vice President of
the Integrated Bar of the Philippines), issued an Order
directing respondent Atty. Gilbert S. Obmina to submit his
Answer, duly verified, in six (6) copies, and furnish the
complainant with a copy thereof, within fifteen (15) days
from receipt of the Order.
On December 12, 2006, this Commission was in receipt of a
Manifestation dated December 11, 2006 filed by a certain
Atty. Ma. Carmencita C. Obmina-Muaa. Allegedly, she is the
daughter of respondent Atty. Gilbert S. Obmina. She further
alleged that [her] father is already a permanent resident of

the United States of America since March 2001 and had

already retired from the practice of law.
That on February 20, 2007, undersigned Commissioner
[Jose I. De La Rama, Jr.] scheduled the Mandatory
Conference/Hearing of the case on March 20, 2007 at 9:30
a.m.
On March 19, 2007, Atty. Ma. Carmencita C. Obmina-Muaa
filed a Manifestation and Motion reiterating her earlier
Manifestation that the respondent, Atty. Gilbert S. Obmina
is already a permanent resident of the United States for the
last six (6) years and likewise, she reiterated her request
that summons be served on her father thru extraterritorial
service. Atty. Muaa likewise requested the cancellation of
the mandatory conference and resetting of the same on
April 10, 2007.
On the scheduled Mandatory Conference on March 20,
2007, complainant Carlito P. Carandang appeared. The
undersigned Commissioner directed Atty. Carmelita Muaa
to appear before this Commission on May 18, 2007 at 2:00
p.m. and to bring with her the alleged withdrawal of
appearance filed by her father and to bring proof that her
father is now really a permanent resident of the United
States of America.
That on May 18, 2007, Atty. Muaa again filed a
Manifestation and Motion informing this Honorable
Commission that she cannot possibly appear for the reason
that she is the legal counsel of a candidate in Muntinlupa
City and that the canvassing of the election results is not
yet finished. She likewise submitted copies of her fathers
Passport and US Permanent Residence Card. That with
respect [to] the Withdrawal of Appearance, Atty. Muaa
alleged that copies of the same were all given to
complainant Carlito P. Carandang.
That an Order dated May 18, 2007 was issued by the
undersigned
Commissioner
granting
the
aforesaid

Manifestation and Motion. Atty. Muaa was likewise directed

to appear before this Office on June 22, 2007 at 2:00 p.m.
On June 22, 2007, in the supposed Mandatory Conference,
Atty.
Carmencita
Obmina
Muaa appeared. Likewise
presented was Mr. Carlito Carandang who is the
complainant against Atty. Gilbert Obmina. In the interest of
justice, Atty. Muaa was given a period of ten (10) days
within which to file a verified answer. The Mandatory
Conference was set on August 3, 2007 at 3:00 oclock in the
afternoon.

The IBPs Report and Recommendation

In a Report[2] dated 2 October 2007, IBP Commissioner for

Bar Discipline Jose I. De La Rama, Jr. (Commissioner De La Rama)
found

that

Atty.

Obmina

was

still

counsel

of

record

for

complainant at the time the decision was rendered and up to the

time of the issuance of the writ of execution. Atty. Obmina
received the Decision dated 28 January 2000 on 1 March

On June 29, 2007, Atty. Muaa filed a Motion for Extension of

Time to file Answer.

2000. Atty. Carmencita Obmina-Muaa manifested in Court that

On July 3, 2007, this Commission is in receipt of the verified

Answer filed by respondent Atty. Gilbert S. Obmina.

2001. There is nothing on record that will show that Atty. Obmina

On August 3, 2007, during the Mandatory Conference,

complainant
Carlito
Carandang
appeared. Atty.
Muaa appeared in behalf of [her] father. After making some
admissions, stipulations and some clarificatory matters, the
parties were directed to submit their verified position
papers within ten (10) days. Thereafter, the case will be
submitted on report and recommendation.
On August 10, 2007, complainant, by himself, filed an
Urgent Motion for Extension of Time to File Position
Paper. Likewise, respondent, through Atty. Muaa, filed a
Motion for Extension of Time to File Position Paper on
August 13, 2007.
On September 3, 2007, the Commission on Bar Discipline
received copy of the Respondents Memorandum.
On September 12, 2007, this Commission received copy of
complainants Position Paper.[1]

her father has been living in the United States of America since
notified complainant in any manner about the decision.
Although

Commissioner

De

La

Rama

observed

that

complainant is partly to blame for his loss for failure to maintain

contact with Atty. Obmina and to inform himself of the progress of
his case, Commissioner De La Rama nonetheless underscored the
duty of Atty. Obmina to notify his client as to what happened to
his case. Thus:
One cannot escape the fact that the complainant himself
failed to communicate with his counsel for quite
sometime. There is nothing in the complainants Sworn
Statement that would show that he regularly visited the
office
of
the
respondent,
Atty.
Gilbert
S.
Obmina. Complainant is partly to blame for his loss and it
should not be attributed solely to the respondent.
The Supreme Court held that clients should maintain
contact with their counsel from time to time and inform
themselves of the progress of their case, thereby
exercising that standard of care which an ordinary prudent

man bestows upon his business (Leonardo vs. S.T. Best,

Inc., 422 SCRA 347)

However, the respondent who has in his possession the

complete files and address of the complainant, should have
exerted efforts to even notify Mr. Carandang as to what
happened to his case.Whether the decision is adverse [to]
or in favor of his client, respondent is duty bound to notify
the clients pursuant to Canon 18 of the Code of
Professional Ethics which provides that a lawyer shall serve
his client with competence and diligence. Further under
Rule 18.03 of Canon 18, a lawyer shall not neglect a legal
matter entrusted to him, and his negligence in connection
therewith shall render him liable. Lastly, under Rule
18.04, a lawyer shall keep the client informed of the status
of his case and shall respond within a reasonable time to
clients request for information.
That as a result of the respondents failure to notify the
complainant, the latter lost the case leading to his eviction.

Although the said respondent is reportedly in the United

States of America and accordingly retired from the practice
of law, this Commission will not close its eyes on the
negligence that he has committed while in the active
practice.
SO ORDERED.[3] (Emphasis in the original)
In a Resolution[4] dated 19 October 2007, the IBP Board of
Governors

adopted

and

approved

the

Report

and

Recommendation of Commissioner De La Rama. The Office of the

Bar Confidant received the notice of the Resolution and the
records of the case on 14 March 2008.

The Ruling of the Court

We

sustain

the

findings

of

the

IBP

and

adopt

its

In the case of Mijares vs. Romana 425 SCRA 577, the

Supreme Court held that as an officer of the court, it is the
duty of an attorney to inform his client of whatever
information he may have acquired which it is important
that the client should have knowledge of. In another case,
the Supreme Court held that respondents failure to perfect
an appeal within the prescribed period constitutes
negligence and malpractice proscribed by the Code of
Professional Responsibility (Cheng vs. Agravante, 426 SCRA
42).

recommendations. Atty. Obmina violated Canon 18, and Rules

WHEREFORE, in view of the foregoing, with head bowed in

sadness, it is respectfully recommended that Atty. Gilbert S.
Obmina be suspended from the practice of law for a period
of one (1) year.

negligence in connection therewith shall render him liable and [a]

18.03 and 18.04 of the Code of Professional Responsibility.

Atty. Obmina Failed to Serve Complainant
with Competence and Diligence
Canon 18 states that [a] lawyer shall serve his client with
competence and diligence. Rules 18.03 and 18.04 provide that [a]
lawyer shall not neglect a legal matter entrusted to him, and his
lawyer shall keep the client informed of the status of his case and
shall respond within a reasonable time to the clients request for
information.

Atty. Obminas futile efforts of shifting the blame on Carandang

In his Memorandum, Atty. Obmina admitted that he was counsel

only serve to emphasize his failure to notify Carandang that the

for Carandang in Civil Case No. B-5109. Atty. Obmina blamed

trial court already promulgated a decision in Civil Case No. B-

Carandang for the adverse decision in Civil Case No. B-5109

5109 that was adverse to Carandangs interests. Atty. Obmina

because Carandang did not tell him that there was a Compromise

cannot overlook the fact that Carandang learned about the

Agreement executed prior to Atty. Obminas filing of the complaint

promulgation of the decision not through Atty. Obmina himself,

in Civil Case No. B-5109.Carandang, on the other hand, stated

but through a chance visit to the trial court. Instead of letting

that Atty. Obmina made him believe that they would win the

Carandang know of the adverse decision himself, Atty. Obmina

case. In fact, Carandang engaged the services of Atty. Obmina on

should have immediately contacted Carandang, explained the

a contingent basis. Carandang shall pay Atty. Obmina 40% of the

decision to him, and advised them on further steps that could be

sale proceeds of the property subject matter of the case. Atty.

taken. It is obvious that Carandang lost his right to file an appeal

Obmina promised to notify Carandang as soon as the decision of

because of Atty. Obminas inaction. Notwithstanding Atty. Obminas

the court was given.

subsequent withdrawal as Carandangs lawyer, Atty. Obmina was

still counsel of record at the time the trial court promulgated the

Contrary to Atty. Obminas promise, there is no evidence on record

decision in Civil Case No. B-5109.

that Atty. Obmina took the initiative to notify Carandang of the

trial courts adverse decision. Atty. Obmina again put Carandang
at fault for failure to advance the appeal fee. Atty. Obminas
version of Carandangs confrontation with him was limited to this
narrative:
Sometime in the year 2000, complainant went to
respondents law office. He was fuming mad and was
blaming respondent for having lost his case. He
asked for the records of the case because according
to him, he will refer the case to a certain Atty.
Edgardo Salandanan. Respondent gave complainant
the case file. Complainant did not return to pursue
the appeal or at least had given an appeal fee to be
paid to Court in order to perfect the appeal.[5]

In Tolentino v. Mangapit, we stated that:

As an officer of the court, it is the duty of an attorney
to inform her client of whatever information she may
have acquired which it is important that the client
should have knowledge of. She should notify her
client of any adverse decision to enable her client to
decide whether to seek an appellate review
thereof. Keeping the client informed of the
developments
of
the
case
will
minimize
misunderstanding and [loss] of trust and confidence
in the attorney.[6]

The relationship of lawyer-client being one of confidence, there is

ever present the need for the lawyer to inform timely and
adequately the client of important developments affecting the

clients case. The lawyer should not leave the client in the dark on
how the lawyer is defending the clients interests.[7]
The Court finds well-taken the recommendation of the IBP to
suspend Atty. Gilbert S. Obmina from the practice of law for one
year. In the cases of Credito v. Sabio[8] and Pineda v. Macapagal,
[9] we imposed the same penalty upon attorneys who failed to
update their clients on the status of their cases. Considering Atty.
Obminas advanced age, such penalty serves the purpose of
protecting the interest of the public and legal profession.
WHEREFORE, the Court AFFIRMS the resolution of the IBP
Board of Governors approving and adopting the report and
recommendation of the Investigating Commissioner.Accordingly,
Atty. Gilbert S. Obmina is found GUILTY of violation of Canon 18
and of Rules 18.03 and 18.04 of the Code of Professional
Responsibility. The Court SUSPENDS Atty. Gilbert S. Obmina from
the practice of law for one year, and WARNS him that a
repetition of the same or similar offense will be dealt with more
severely.

Let copies of this Decision be furnished the Office of the Bar

Confidant, to be appended to respondents personal record as
attorney. Likewise, copies shall be furnished the Integrated Bar of
the Philippines and all courts in the country for their information
and guidance.
SO ORDERED.

JUDGE RENE B. BACULI v. ATTY.

MELCHOR A. BATTUNG,
.

A.C. No. 8920

September 28, 2011

shouted, Then cite me![5] Judge Baculi cited him for direct
contempt and imposed a fine of P100.00. The respondent then
left.

DECISION
Before us is the resolution [1] of the Board of Governors of

While other cases were being heard, the respondent re-

the Integrated Bar of the Philippines (IBP) finding Atty. Melchor

entered the courtroom and shouted, Judge, I will file gross

Battung liable for violating Rule 11.03, Canon 11 of the Code of

ignorance against you! I am not afraid of you! [6]Judge Baculi

Professional

be

ordered the sheriff to escort the respondent out of the

reprimanded. The complainant is Judge Rene B. Baculi, Presiding

courtroom and cited him for direct contempt of court for the

Judge

second time.

of

Responsibility
the

Municipal

and
Trial

recommending
Court

in

that

Cities,

he

Branch

2, Tuguegarao City. The respondent, Atty. Battung, is a member of

the Bar with postal address on Aguinaldo St., Tuguegarao City.

After his hearings, Judge Baculi went out and saw the
respondent at the hall of the courthouse, apparently waiting

Background

for him. The respondent again shouted in a threatening tone,

Judge, I will file gross ignorance against you! I am not afraid of

Judge Baculi filed a complaint for disbarment [2] with the

you! He kept on shouting, I am not afraid of you! and

Commission on Discipline of the IBP against the respondent,

challenged the judge to a fight. Staff and lawyers escorted him

alleging that the latter violated Canons 11 [3] and 12[4] of the Code

out of the building.[7]

of Professional Responsibility.
Judge Baculi also learned that after the respondent left
Violation of Canon 11 of the Code of Professional Responsibility

the courtroom, he continued shouting and punched a table at

the Office of the Clerk of Court.[8]

Judge Baculi claimed that on July 24, 2008, during the

hearing on the motion for reconsideration of Civil Case No.

Violation of Canon 12 of the Code of Professional Responsibility

2502, the respondent was shouting while arguing his motion.

Judge Baculi advised him to tone down his voice but instead,
the respondent shouted at the top of his voice. When warned
that he would be cited for direct contempt, the respondent

According to Judge Baculi, the respondent filed dilatory

pleadings in Civil Case No. 2640, an ejectment case.

Judge Baculi rendered on October 4, 2007 a decision in

Civil Case No. 2640, which he modified on December 14, 2007.
After the modified decision became final and executory, the

order that the Motion for Reconsideration is submitted for

resolution, but what he did was that he forced me to argue
so that he will have the room to humiliate me as he used to
do not only to me but almost of the lawyers here (sic).

branch clerk of court issued a certificate of finality. The

respondent filed a motion to quash the previously issued writ

Atty.

of execution, raising as a ground the motion to dismiss filed by

dismissed.

Battung

asked

that

the

case

against

him

be

the defendant for lack of jurisdiction. Judge Baculi asserted

that the respondent knew as a lawyer that ejectment cases

The IBP conducted its investigation of the matter through

are within the jurisdiction of First Level Courts and the latter

Commissioner Jose de la Rama, Jr. In his Commissioners Report,

was merely delaying the speedy and efficient administration of

justice.

[11]

Commissioner De la Rama stated that during the mandatory

conference on January 16, 2009, both parties merely reiterated

The respondent filed his Answer,[9] essentially saying

what they alleged in their submitted pleadings. Both parties

that it was Judge Baculi who disrespected him. [10] We quote

agreed that the original copy of the July 24, 2008 tape of the

from his Answer:

incident

23. I only told Judge Rene Baculi I will file Gross ignorance
of the Law against him once inside the court room when he
was lambasting me[.]
24. It was JUDGE BACULI WHO DISRESPECTED ME. He did
not like that I just submit the Motion for Reconsideration
without oral argument because he wanted to have an
occasion to just HUMILIATE ME and to make appear to the
public that I am A NEGLIGENT LAWYER, when he said YOU
JUSTIFY YOUR NEGLIGENCE BEFORE THIS COURT making it
an impression to the litigants and the public that as if I am
a
NEGLIGENT,
INCOMPETENT,
MUMBLING,
and
IRRESPONSIBLE LAWYER.
25. These words of Judge Rene Baculi made me react[.]
xxxx
28. Since I manifested that I was not going to orally argue
the Motion, Judge Rene Baculi could have just made an

at

the

courtroom

would

be

submitted

for

the

Commissioners review. Judge Baculi submitted the tape and the

transcript of stenographic notes on January 23, 2009.
Commissioner De la Rama narrated his findings, as
follows:[12]
At the first part of the hearing as reflected in the TSN, it
was observed that the respondent was calm. He politely
argued his case but the voice of the complainant appears
to be in high pitch. During the mandatory conference, it
was also observed that indeed, the complainant maintains
a high pitch whenever he speaks. In fact, in the TSN, where
there was already an argument, the complainant stated the
following:
Court: Do not shout.
Atty. Battung: Because the court is shouting.

Court: This court has been constantly under this kind of

voice Atty. Battung, we are very sorry if you do not want to
appear before my court, then you better attend to your
cases and do not appear before my court if you do not
want to be corrected! (TSN, July 24, 2008, page 3)
(NOTE: The underlined words we are
very sorry [ were] actually uttered by
Atty. Battung while the judge was
saying the quoted portion of the TSN)

Presumably, there were other lawyers and litigants present

waiting for their cases to be called. They must have
observed the incident. In fact, in the joint-affidavit
submitted by Elenita Pacquing et al., they stood as one in
saying that it was really Atty. Battung who shouted at the
judge that is why the latter cautioned him not to shout.

That it was during the time when the complainant asked

the following questions when the undersigned noticed that
Atty. Battung shouted at the presiding judge.

Court: You are now ordered to pay a fine of P100.00.

Court: Did you proceed under the Revised Rules on

Summary Procedure?

The last part of the incident as contained in

page 4 of the TSN reads as follows:

Atty. Battung: We will file the necessary action against this

court for gross ignorance of the law.
Court: Yes, proceed.
(NOTE: Atty. Battung went out the courtroom)

*
Atty. Battung: It is not our fault Your Honor to proceed
because we were asked to present our evidence ex
parte. Your Honor, so, if should we were ordered (sic) by
the court to follow the rules on summary procedure. (TSN
page 3, July 24, 2008)

Court: Next case.

It was observed that the judge uttered the following:

Atty. Battung: But what we do not like (not

finished)

Court: Do not shout.

Atty. Battung: Because the court is shouting.
(Page 3, TSN July 24, 2008)
Note: * it was at this point when the respondent shouted at
the complainant.
Thereafter, it was observed that both were already
shouting at each other.
Respondent claims that he was provoked by the presiding
judge that is why he shouted back at him. But after hearing
the tape, the undersigned in convinced that it was Atty.
Battung who shouted first at the complainant.

Interpreter: Civil Case No. 2746.

(Note: Atty. Battung entered
courtroom)

again

the

Court: The next time

Atty. Battung: We would like to clear
Court: Sheriff, throw out the counsel, put that everything in
record. If you want to see me, see me after the court.
Next case.
Civil Case No. 2746 for Partition and Damages, Roberto
Cabalza vs. Teresita Narag, et al.
(nothing follows)

Commissioner De la Rama found that the respondent failed

to observe Canon 11 of the Code of Professional Responsibility

The Courts Ruling

that requires a lawyer to observe and maintain respect due the

courts and judicial officers. The respondent also violated Rule

We agree with the IBPs finding that the respondent violated

11.03 of Canon 11 that provides that a lawyer shall abstain from

Rule 11.03, Canon 11 of the Code of Professional Responsibility.

scandalous, offensive or menacing language or behavior before

Atty. Battung disrespected Judge Baculi by shouting at him inside

the courts. The respondents argument that Judge Baculi provoked

the courtroom during court proceedings in the presence of

him to shout should not be given due consideration since the

litigants and their counsels, and court personnel. The respondent

respondent should not have shouted at the presiding judge; by

even came back to harass Judge Baculi. This behavior, in front of

doing so, he created the impression that disrespect of a judge

many witnesses, cannot be allowed. We note that the respondent

could be tolerated. What the respondent should have done was to

continued to threaten Judge Baculi and acted in a manner that

file an action before the Office of the Court Administrator if he

clearly showed disrespect for his position even after the latter

believed that Judge Baculi did not act according to the norms of

had cited him for contempt. In fact, after initially leaving the

judicial conduct.

court, the respondent returned to the courtroom and disrupted

the ongoing proceedings. These actions were not only against the

With respect to the charge of violation of Canon 12 of the

person, the position and the stature of Judge Baculi, but against

Code of Professional Responsibility, Commissioner De la Rama

the court as well whose proceedings were openly and flagrantly

found that the evidence submitted is insufficient to support a

disrupted, and brought to disrepute by the respondent.

ruling that the respondent had misused the judicial processes to

frustrate the ends of justice.

Litigants and counsels, particularly the latter because of

their position and avowed duty to the courts, cannot be allowed

Commissioner

De

la

Rama

recommended

that

the

to publicly ridicule, demean and disrespect a judge, and the court

respondent be suspended from the practice of law for six (6)

that he represents. The Code of Professional Responsibility

months.

provides:

On October 9, 2010, the IBP Board of Governors passed a

Resolution

adopting

and

approving

the

Report

and

Recommendation of the Investigating Commissioner, with the

modification that the respondent be reprimanded.

Canon 11 - A lawyer shall observe and maintain the respect

due the courts and to judicial officers and should insist on
similar conduct by others.

Rule 11.03 - A lawyer shall abstain from scandalous,

offensive or menacing language or behavior before the
Courts.

year for violating Rule 11.05, Canon 11, and Rule 13.02, Canon 13
of the Code of Professional Responsibility, and for violating the
Lawyers Oath for airing his grievances against a judge in

We ruled in Roxas v. De Zuzuarregui, Jr. [13] that it is the duty

of a lawyer, as an officer of the court, to uphold the dignity and
authority of the courts. Respect for the courts guarantees the
stability of the judicial institution; without this guarantee, the
institution would be resting on very shaky foundations.

the

justice system.

latters

role,

stature

and

position

in

When the respondent publicly berated and

ignorance

of

the

law

against

the

courtroom in the course of judicial proceedings where the

respondent was acting as an officer of the court, and before the
litigating public. His actions were plainly disrespectful to Judge

latter,

offensive to the integrity of the judicial system itself.

our

brazenly threatened Judge Baculi that he would file a case for

gross

violations are no less serious as they were committed in the

Baculi and to the court, to the point of being scandalous and

A lawyer who insults a judge inside a courtroom completely

disregards

newspapers and radio programs. In this case, Atty. Battungs

the

respondent effectively acted in a manner tending to erode the

public confidence in Judge Baculis competence and in his ability
to decide cases. Incompetence is a matter that, even if true, must
be handled with sensitivity in the manner provided under the
Rules of Court; an objecting or complaining lawyer cannot act in a
manner that puts the courts in a bad light and bring the justice
system into disrepute.
The IBP Board of Governors recommended that Atty.
Battung be reprimanded, while the Investigating Commissioner
recommended a penalty of six (6) months suspension.
We believe that these recommended penalties are too light
for the offense.
In Re: Suspension of Atty. Rogelio Z. Bagabuyo, Former
Senior State Prosecutor,[14] we suspended Atty. Bagabuyo for one

WHEREFORE, in view of the foregoing, Atty. Melchor A.

Battung is found GUILTY of violating Rule 11.03, Canon 11 of the
Code

of

Professional

Responsibility,

for

which

he

is SUSPENDED from the practice of law for one (1) year effective
upon the finality of this Decision. He is STERNLY WARNED that a
repetition of a similar offense shall be dealt with more severely.
Let copies of this Decision be furnished the Office of the
Bar Confidant, to be appended to the 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.
SO ORDERED.

CATHERINE & HENRY YU v.

ATTY. ANTONIUTTI K. PALAA.

A.C. No. 7747

July 14, 2008

guaranteed interests. Further, Wealth Marketing promised to

issue, as it had in fact issued, postdated checks covering the
principal investments.[5]

DECISION
On November 16, 2006, complainants Henry and Catherine Yu
filed a complaint[1] for disbarment against respondent Atty.
Antoniutti K. Palaa for alleged acts of defraudation, before the
Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines

(IBP).[2] Complainants

attached

therewith

their

Consolidated Complaint-Affidavit[3]which they earlier filed before

the City Prosecutors Office of Makati, charging the respondent
and

his

co-accused

(in

the

criminal

case),

with

syndicated estafa and violation of Batas Pambansa Blg. 22 (BP

22).

It turned out, however, that Wealth Marketings promises were

false and fraudulent, and that the checks earlier issued were
dishonored for the reason account closed. The investors, including
the complainants, thus went to Wealth Marketings office. There,
they discovered that Wealth Marketing had already ceased its
operation and a new corporation was formed named Ur-Link
Corporation (Ur-Link) which supposedly assumed the rights and
obligations of the former. Complainants proceeded to Ur-Link
office where they met the respondent. As Wealth Marketings
Chairman of the Board of Directors, respondent assured the
complainants that Ur-Link would assume the obligations of the

The facts, as found by the CBD, are as follows:

former company.[6] To put a semblance of validity to such

Sometime in 2004, complainants met a certain Mr. Mark Anthony

U. Uy (Mr. Uy) who introduced himself as the Division Manager of
Wealth Marketing and General Services Corporation (Wealth
Marketing), a corporation engaged in spot currency trading. [4] Mr.
Uy persuaded the complainants, together with other investors, to
invest a minimum amount of P100,000.00 or its dollar equivalent

representation, respondent signed an Agreement [7] to that effect

which, again, turned out to be another ploy to further deceive the
investors.[8] This prompted the complainants to send demand
letters

to

Wealth

Marketings

officers

and

directors

which

remained unheeded. They likewise lodged a criminal complaint

for syndicated estafa against the respondent and his co-accused.
[9]

with said company. They were made to believe that the said
company had the so-called stop-loss mechanism that enabled it
to stop trading once the maximum allowable loss fixed at 3%-9%
of the total contributions, would be reached. If, on the other hand,
the company would suffer loss, Wealth Marketing would return to
the

investors the

principal

amount including

the

monthly

Despite the standing warrant for his arrest, respondent went into
hiding and has been successful in defying the law, to this date.
In an Order[10] dated November 17, 2006, Director for Bar
Discipline Rogelio B. Vinluan required respondent to submit his

Answer to the complaint but the latter failed to comply. Hence,

the motion to declare him in default filed by the complainants.
[11]

The case was thereafter referred to Commissioner Jose I. De la

Rama, Jr. (the Commissioner) for investigation. In his continued

defiance of the lawful orders of the Commission, respondent
failed to attend the mandatory conference and to file his position
paper.Respondent was thereafter declared in default and the case
was heard ex parte.

WHEREFORE, in view of the foregoing, after a careful

evaluation of the documents presented, including the
jurisprudence laid down by the complainants involving the
same respondent, and said decision of the Supreme Court
forms part of the law of the land, the undersigned
commissioner is recommending that respondent Atty.
Antoniutti K. Palaa be disbarred and his name be stricken
off the Roll of Attorneys upon the approval of the Board of
Governors and the Honorable Supreme Court. [14]
In its Resolution dated August 17, 2007, the IBP Board of
Governors adopted and approved the Commissioners report and

In

his

report,

Marketings

[12]

the

Commissioner

executives

(which

concluded

included

that

Wealth

respondent

herein)

conspired with one another in defrauding the complainants by

recommendation.[15]
This Court agrees with the IBP Board of Governors.

engaging in an unlawful network of recruiting innocent investors

to invest in foreign currency trading business where, in fact, no

Lawyers are instruments in the administration of justice. As

such business existed, as Wealth Marketing was not duly licensed

vanguards of our legal system, they are expected to maintain not

by the Securities and Exchange Commission (SEC) to engage in

only legal proficiency but also a high standard of morality,

such undertaking. This was bolstered by the fact that Wealth

honesty, integrity and fair dealing. In so doing, the peoples faith

Marketings financial status could not support the investors

and confidence in the judicial system is ensured. Lawyers may be

demands involving millions of pesos. It also appears, said the

disciplined whether in their professional or in their private

Commissioner, that Ur-Link was created only to perpetuate fraud

capacity for any conduct that is wanting in morality, honesty,

and to avoid obligations. The Commissioner likewise found that

probity and good demeanor.[16]

respondent had been previously suspended by this Court for

committing

similar

gravity

the

of

administrative

acts

acts
case

of

committed,
and

the

In the present case, two corporations were created where the

previous

respondent played a vital role, being Wealth Marketings Chairman

defraudation. [13] Considering

as

defiance

well
of

as

lawful

his

orders,

the

Commissioner recommended that respondent be disbarred from

the practice of law, the pertinent portion of which reads:

of the Board and Ur-Links representative. We quote with approval

the Commissioners findings, thus:
As correctly pointed out by the City Prosecutors Office of
Makati, it appears that the executive officers of Wealth
Marketing Corporation conspired with each (sic) other to

defraud the investors by engaging in unlawful network of

recruiting innocent investors to invest in foreign currency
trading business. The truth of the matter is that there was
no actual foreign currency trading since said corporation is
not duly licensed or authorized by the Securities and
Exchange Commission to perform such task.

their own. They are distinct from and they may proceed
independently of criminal cases. A criminal prosecution will not
constitute a prejudicial question even if the same facts and
circumstances are attendant in the administrative proceedings.
[18]

In the General Information Sheet (Annex I) of Wealth

Marketing and General Services Corporation, the
authorized capital stock is only P9,680,000.00 and the paid
up capital, at the time of [in]corporation is (sic)
only P605,000.00. Said corporation, as the records will
show, has been dealing with investors with millions of
pesos on hand, with the hope that their money would earn
interests as promised. However, their company resources
and financial status will show that they are not in the
position to meet these demands if a situation such as this
would arise.
xxxx
Furthermore, in order to evade the investors who were then
asking for the return of their investments, said respondent
even formed and made him part of a new company, Ur-Link
Corporation, which according to the complainants, when
they met the respondent, would assume the obligations of
the defunct Wealth Marketing Corporation. It is also evident
that respondent is frolicking with the Securities and
Exchange Commission for the purpose of employing fraud.
[17]

Besides, it is not sound judicial policy to await the final

resolution of a criminal case before a complaint against a lawyer

may be acted upon; otherwise, this Court will be rendered
helpless to apply the rules on admission to, and continuing
membership in, the legal profession during the whole period that
the criminal case is pending final disposition, when the objectives
of the two proceedings are vastly disparate. [19] Disciplinary
proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for
the public welfare and for preserving courts of justice from the
official ministration of persons unfit to practice law. [20] The
attorney is called to answer to the court for his conduct as an
officer of the court.[21]
As to the recommended penalty of disbarment, we find the same
to be in order.
Section 27, Rule 138 of the Rules of Court provides:

To be sure, respondents conduct falls short of the exacting

standards expected of him as a vanguard of the legal profession.
The fact that the criminal case against the respondent
involving the same set of facts is still pending in court is of no
moment. Respondent, being a member of the bar, should note
that administrative cases against lawyers belong to a class of

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 admission to
practice, or for a willful disobedience of any lawful order of
a superior court, or for corruptly or willfully appearing as an

attorney for a party to a case without authority to do so. x

x x.

in Tejada, instead of meeting the charges head on, respondent did

not bother to file an answer and verified position paper, nor did

Time and again, we have stated that disbarment is the

he participate in the proceedings to offer a valid explanation for

most severe form of disciplinary sanction, and, as such, the power

his conduct.[28] The Court has emphatically stated that when the

to disbar must always be exercised with great caution for only the

integrity of a member of the bar is challenged, it is not enough

most imperative reasons and in clear cases of misconduct

that he denies the charges against him; he must meet the issue

affecting the standing and moral character of the lawyer as an

and overcome the evidence against him. He must show proof that

officer of the court and a member of the bar. [22]

he still maintains that degree of morality and integrity which at all

times is expected of him.[29] Verily, respondents failure to comply

The Court notes that this is not the first time that respondent is

with the orders of the IBP without justifiable reason manifests his

facing an administrative case, for he had been previously

disrespect of judicial authorities.[30] As a lawyer, he ought to know

suspended from the practice of law in Samala v. Palaa[23] and Sps.

that the compulsory bar organization was merely deputized by

Amador and Rosita Tejada v. Palaa.

[24]

In Samala, respondent also

this Court to undertake the investigation of complaints against

played an important role in a corporation known as First Imperial

lawyers. In short, his disobedience to the IBP is in reality a gross

Resources Incorporated (FIRI), being its legal officer. As in this

and blatant disrespect of the Court. [31] By his repeated cavalier

case, respondent committed the same offense by making himself

conduct, the respondent exhibited an unpardonable lack of

part of the money trading business when, in fact, said business

respect for the authority of the Court.[32]

was

not

among

the

purposes

for

which

was

Considering the serious nature of the instant offense and in

created. Respondent was thus meted the penalty of suspension

light of his prior misconduct herein-before mentioned for which he

for three (3) years with a warning that a repetition of the same or

was penalized with a three-year suspension with a warning that a

similar acts would be dealt with more severely.

FIRI

[25]

Likewise,

repetition of the same or similar acts would be dealt with more

in Tejada, he was suspended for six (6) months for his continued

severely; and another six-month suspension thereafter, the

refusal to settle his loan obligations.

[26]

contumacious behavior of respondent in the instant case which

The fact that respondent went into hiding in order to avoid service

grossly degrades the legal profession indeed warrants the

upon him of the warrant of arrest issued by the court (where his

imposition of a much graver penalty --- disbarment. [33] Of all

criminal case is pending) exacerbates his offense. [27]

classes and professions, the lawyer is most sacredly bound to

uphold the laws. He is their sworn servant; and for him, of all men

Finally, we note that respondents case is further highlighted by

in the world, to repudiate and override the laws, to trample them

his lack of regard for the charges brought against him. As

underfoot 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.[34]
WHEREFORE,

respondent

Antoniutti

K.

Palaa

is

hereby DISBARRED, and his name is ORDERED STRICKEN from

the Roll of Attorneys. Let a copy of this Decision be entered in his
record as a member of the Bar; and let notice of the same be
served on the Integrated Bar of the Philippines, and on the Office
of the Court Administrator for circulation to all courts in the
country.
SO ORDERED.

RE: LETTER OF JUDGE A.M. No. 07-7-17-SC

AUGUSTUS
C.
DIAZ,
METROPOLITAN
TRIAL
COURT OF QUEZON CITY,
BRANCH 37,
APPEALING FOR JUDICIAL
CLEMENCY.
RESOLUTION
In a letter dated July 18, 2007, Judge Augustus C. Diaz,
presiding judge of Branch 37 of the Metropolitan Trial Court of
Quezon City, informed the Court that he is an applicant for judgeship
in one of the vacant Regional Trial Court branches in Metro Manila. In
connection therewith, he was interviewed by the Judicial and Bar
Council on July 10, 2007. He was told to seek judicial clemency due
to the fact that he was once fined P20,000 for not hearing a motion
for demolition. He claims that this lapse happened only once as a
result of oversight. He requests judicial clemency and, in particular,
that he be allowed to again be nominated to one of the vacant
branches of the Regional Trial Court of Manila or in any of the cities
where [his] application [is being] considered.
In a subsequent letter,[1] Judge Diaz stated that he has
been the presiding judge of Branch 37 of the Metropolitan Trial
Court of Quezon City since March 1, 1995. He expressed deep
remorse for the lapse for which he was held administratively
liable in Alvarez v. Diaz.[2] He confessed that [t]he stain of the
penalty has taught [him] a bitter lesson and promised to avoid
the commission of the same or similar acts. He submitted himself
to the judicious discretion of this Court for whatever action the
Court may take on his plea for judicial clemency.
In Alvarez, Judge Diaz was found guilty of gross ignorance
of the law when he granted the following motions: (1) a motion
for execution which was fatally defective for lack of notice to the
defendant and (2) a motion for demolition without notice and
hearing. His action on the motion for demolition also made him
liable for grave abuse of authority.[3] He was fined P20,000.[4]
Section 5, Rule 4 of the Rules of the Judicial and Bar Council
provides:

SEC. 5. Disqualification. The following are disqualified from

being nominated for appointment to any judicial post or as
Ombudsman or Deputy Ombudsman:
1.
Those with pending criminal or regular
administrative cases;
2.
Those with pending criminal cases in foreign
courts or tribunals; and
3.
Those who have been convicted in any
criminal case; or in an administrative case, where the
penalty imposed is at least a fine of more
than P10,000, unless he has been granted judicial
clemency. [5] (emphasis supplied)
Under the said provision, Judge Diaz is disqualified from
being nominated for appointment to any judicial post, until and
unless his request for judicial clemency is granted.
Concerned with safeguarding the integrity of the judiciary,
this Court has come down hard[6] and wielded the rod of discipline
against members of the judiciary who have fallen short of the
exacting standards of judicial conduct. [7] This is because a judge is
the visible representation of the law and of justice. [8] He must
comport himself in a manner that his conduct must be free of a
whiff of impropriety, not only with respect to the performance of
his official duties but also as to his behavior outside his sala and
as a private individual.[9] His character must be able to withstand
the most searching public scrutiny because the ethical principles
and sense of propriety of a judge are essential to the preservation
of the peoples faith in the judicial system. [10]
Clemency, as an act of mercy removing any
disqualification, should be balanced with the preservation of
public confidence in the courts. The Court will grant it only if there
is a showing that it is merited. Proof of reformation and a showing
of potential and promise are indispensable. [11]
In the exercise of its constitutional power of administrative
supervision over all courts and all personnel thereof, [12] the Court
lays down the following guidelines in resolving requests for
judicial clemency:

1. There must be proof of remorse and reformation. [13] These shall

In this case, Judge Diaz expressed sincere repentance for

include but should not be limited to certifications or testimonials

his past malfeasance. He humbly accepted the verdict of this

of the officer(s) or chapter(s) of the Integrated Bar of the

Court

Philippines,

prominent

promulgation of Alvarez. It is sufficient to ensure that he has

members of the community with proven integrity and probity. A

learned his lesson and that he has reformed. His 12 years of

subsequent finding of guilt in an administrative case for the same

service in the judiciary may be taken as proof of his dedication to

or similar misconduct will give rise to a strong presumption of

the institution. Thus, the Court may now open the door of further

non-reformation.

opportunities in the judiciary for him.

judges

or

judges

associations

and

in Alvarez.

Three

years

have

elapsed

since

the

2. Sufficient time must have lapsed from the imposition of the

penalty[14] to ensure a period of reformation.
3. The age of the person asking for clemency must show that he
still has productive years ahead of him that can be put to good
use by giving him a chance to redeem himself. [15]
4. There must be a showing of promise [16] (such as intellectual
aptitude, learning or legal acumen or contribution to legal
scholarship and the development of the legal system or
administrative and other relevant skills), as well as potential for
public service.[17]
5. There must be other relevant factors and circumstances that
may justify clemency.

Accordingly, the letter dated July 18, 2007 of Judge

Augustus C. Diaz is hereby NOTED. His request for judicial
clemency is GRANTED.
SO ORDERED.

JOCELYN TALENS-DABON, complainant, vs. JUDGE HERMIN

E. ARCEO, respondent.
DECISION
Once again, this Court must strike hard at an erring member
of the Judiciary.
The case before us stemmed from a sworn-complaint filed by
Jocelyn C. Talens-Dabon, Clerk of Court V of the Regional Trial
Court of San Fernando Pampanga, charging Judge Hermin E.
Arceo, the Executive Judge thereat with gross misconduct. The
complaint was later amended to include immorality. Judge Arceo
filed his answer with counter-complaint to the main complaint and
his answer to the amended complaint. He likewise submitted the
affidavits of his witnesses.
After considering the answers, we issued a Resolution dated
February 1, 1996 referring the case to Associate Justice Portia
Alio-Hormachuelos of the Court of Appeals for investigation,
report, and recommendations, and at the same time, placing
Judge Arceo under preventive suspension for the duration of the
investigation (p. 61, Rollo).
After requests for postponement from both parties, hearings
were held on March 4, 19, 20, 21, 22, and on April 1, 8, 10 and
18,
1996. Both
parties
presented
their
respective
witnesses.Except for Atty. Arnel Santos and Prosecutor Ramon S.
Razon, all of Judge Arceo's witnesses were court employees
assigned at either the Office of the Clerk of Court or Branch 43 of
the Regional Trial Court of San Fernando, Pampanga.
In due time, the Investigating Justice submitted her Report
and Recommendation with the following findings:

The evidence shows that complainant Atty. Jocelyn "Joy" C. TalensDabon, 29, a resident of Dolores, San Fernando, Pampanga, is the
Assistant Clerk of Court of the RTC, San Fernando, Pampanga
which item she assumed on August 10, 1995, after working for
more than a year as Branch Clerk of Court of RTC Kalookan City
under Judge Adoracion G. Angeles. At the time of her assumption
to office, she was about to get married to Atty. Dabon, a lawyer
who work at the Court of Appeals.She is a Methodist, the same
religion as that of respondent's wife and family.
Respondent Judge Hermin E. Arceo, 54, a resident of Guiguinto,
Bulacan is the Presiding Judge of the RTC Branch 43 in San
Fernando, Pampanga. He was newly designated Executive Judge
therein vice Judge Teodoro Bay who transferred to Quezon
City. His wife is ailing and on dialysis, and has been residing in the
U.S. with their daughter since 1989. His family is in the printing
business and his translations of some laws and books have been
published (Exhs. 15-23). He has pursued further legal studies
abroad either as participant or guest. He is President of the
Pampanga-Angeles City RTC Judges Association and was
designated Presidential Assistant for Operations of the Philippine
Judges Association (PJA).
Three days after complainant first reported at the Office of the
Clerk of Court, Atty. Elenita Quinsay, she was summoned by
respondent. He was typing when she came in and at this first
meeting, she was surprised that without even looking up at her,
he asked her in a loud voice what she wanted. When he did look
at her she was bothered by the way he looked at her from head to
foot "as if he were undressing her." Respondent told her that she
was going to be detailed to his office as his assistant, a situation
which she did not welcome having heard of respondent's
reputation in the office as "bastos" and "maniakis" prompting her

to work for her transfer to Branch 45 under Judge Adelaida AlaMedina.

On August 21, 1995, complainant received respondent's
Executive Order No. 001-95 (Exh. H) requiring her to report to the
office of the Executive Judge effective August 28, 1995. Her work
was to draft and file memos and circulars, pay telephone and
electric bills and other clerical duties assigned to her by
respondent. At one time she was designated to act as Branch
Clerk of Court of Branch 43 in the absence of OIC Bernardo
Taruc. She observed respondent to be rude and disrespectful to
her and the other court personnel. He talked in a loud voice and
shouted at them; used offensive words such as "walang isip",
"tanga"; told green jokes and stories; made harsh and negative
comments about court personnel in the presence of
others. Whenever he had the opportunity he would make bodily
contact ("chancing") with her and certain female
employees. Twice as she was about to go out the door respondent
would approach it in big strides so that his body would be in
contact with hers and he would press the lower part of his body
against her back. When complainant introduced her fiance to him,
respondent asked her why she was playing with her forefinger, at
the same time gesturing with his to signify sexual
intercourse. Sometime in November 1995, respondent kissed
complainant on the cheek, a fact admitted by him in his
testimony. He also admitted kissing witnesses Marilyn Leander,
Ester Galicia and other female employees.
Sometime in October 1995, the Courts of San Fernando
transferred to the Greenfields Country Club due to the inundation
of their regular offices with lahar. Ester Galicia whose house was
also affected was allowed to house her appliances in the staff
room of RTC Branch 43. These included a VCR on which, as
testified by witness Bernardo Taruc, a VHS tape entitled "Illegal in
Blue" brought by respondent was played at respondent's

bidding. The tape contained explicit sex scenes and during its
showing respondent would come out of his chamber and tease
the female employees about it. Taruc further related that at one
time respondent brought and showed to the employees a picture
which when held in some way showed figures in coital position.
Adding to complainant's apprehensions about respondent's sexual
predilection were the revelations of Marilyn Senapilo-Leander, 23,
a stenographer of Branch 43. Testifying on her own experiences
with respondent, Leander stated that respondent wrote a love
poem to her (Exh. A) and that many times while taking dictation
from respondent in his chamber, he would suddenly dictate love
letters or poems addressed to her as if courting her (Exhs. B to
E). He kissed her several times, pointedly stared at her lower
parts when she wore tight pants and made body contacts
("chancing"). At one point bursting into tears -- which prompted
this Investigator to suspend her testimony; she was so agitated -Leander testified of the time that respondent summoned her to
his chamber and she found him clad only in briefs. When she
turned around to flee, respondent called after her saying "why are
you afraid. After all, this is for you."
Leander took into her confidence the most senior employee in
Branch 43, OIC Clerk of Court Bernardo Taruc who then took it
upon himself to accompany Leander in respondent's office
whenever he could or ask other female employees to accompany
her. Taruc asked Leander to report the matter to Deputy Court
Administrator Reynaldo Suarez but Leander expressed fear of
retribution from respondent. When Leander's wedding was set in
late 1995, respondent taunted her by saying "Ikay, ang dami ko
pa namang balak sa 'yo, kinuha pa naman kita ng bahay sa isang
subdivision, tapos sinayang mo lang, tanga ka kasi!" This is
admitted by respondent who said it was only a joke. Asked why
she did not file any complaint against the respondent for sexually
harassing her, Marilyn Leander explained:

"I am afraid considering that I am just an ordinary employee. And

I know for a fact that Judge Hermin Arceo is a very influential
person, he is very rich. I know he has lots of friends in Pampanga
like the Governor. I know I cannot fight by myself alone." (TSN,
March 20, 1966, p. 30).
For the complainant, these personal and vicarious experiences hit
bottom with the incident that happened in the afternoon of
December 6, 1995. As testified by complainant, corroborated in
parts by Bemardo Taruc, Yolanda Valencia and Rosanna Garcia,
complainant was summoned at about 1:30 p.m. to respondent's
temporary chamber at Greenfields Country Club by respondent
who himself came to the Staff room. By this time, only the Office
of the Clerk of Court and RTC Branch 43 had been left at
Greenfields; the other RTC branches had returned to their usual
offices at the Hall of Justice. The Sangguniang Panglalawigan
which had also occupied Greenfields had likewise vacated the
building only the day before.
At his temporary chamber at Greenfields, respondent occupied
two (2) small adjoining rooms while the personnel of the Office of
the Clerk of Court and RTC Branch 43 occupied a bigger room
called the Maple Room (Please see Exhs. "J", "K" and "2"). In
respondent's Floor Plan marked Exhibit "2" it appears that from
respondent's chamber, one had to pass a chapel and bar lounge
before reaching the staff room. The door to the outer room of the
chamber was equipped with a knob and an automatic door
closer. When locked from inside, it could not be opened outside
except with a key. Since there was no airconditioner, this door
was usually held open for ventilation by a chair or a small
table. The outer room had filing cabinet and sacks of rice lined up
on two (2) sides of the wall. The inner room also had a door but
without a knob. Respondent had his desk here. The window in this
room opened to the lawn of the Country Club.

Amid this backdrop in what may have been a somnolent

afternoon at Greenfields, complainant entered respondent's
office. Already made cautious by respondent's reputation and
Mrs. Leander's experience, she took care to check the outer door
and noted the chair which prevented it from closing. Her
apprehension increased because the hallway was clear of people
and only the personnel of Branch 43 and the Office of the Clerk of
Court were left holding office there. She entered the inner room,
and sat on a chair in front of respondent's desk. They talked
about the impending construction of the Hall of Justice. Their
conversation was interrupted when Bemardo Taruc dropped by to
tell respondent of a phone call for him. Respondent left the room
but told complainant to remain for the signing of her Certificate of
Service which she was then bringing. After a few minutes
respondent returned and they resumed their conversation. When
the talk veered to his wife, complainant became uneasy and
directed respondent's attention to her unsigned Certificate of
Service. After respondent signed it, complainant prepared to
leave the room. At this juncture, respondent handed to her a
folded yellow paper containing his handwritten poem (Exh. M; p.
22, Record).
Hereunder quoted is the poem and complainant's interpretation
of it as contained in her Memorandum:
"Dumating ka sa buhay ko isang araw ng Agosto
Ang baon mo ay 'yong ganda at talinong abogado
Ang tamis ng 'yong ngiti ang bumihag sa puso ko
Malakas na pampalubag sa mainit kong ulo."
"Indeed, the last two lines of the first stanza are consistent with
complainant's claim regarding respondent's rude manner and
erratic mood swings.

"The second stanza of respondent's poem also jibes with his own
testimony that he would often look for complainant whenever he
would not see her, and with complainant's testimony that
respondent's behavior towards her -- his propensity to utter
remarks with sexual connotations, his acts of making physical
contact with her, among others --

Sa pisngi mo aking mahal, aking nilalangit

Patak ng ulan -- sa buhay kong tigang ang nakakawangis."
"Finally, the fourth and last paragraphs of the poem provides the
context of the lascivious acts committed by respondent against
complainant on 6 December 1995:

"Ang akala ko'y gayong lamang magiging pagtingin sa iyo

"Sawingpalad na pagibig nabigong pangarap
Ako itong amo at ikaw ang empleyado
Na ikaw ay maangkin, mahagkan at mayakap
Bakit habang tumatagal isip ko'y nagugulo
Pag-ibig mo'y ibinigay sa higit na mapalad
Pag di ka nakikita'y laging nagagalit ako."
Ako ngayo'y naririto bigong-bigong umiiyak."
"The third stanza is most descriptive of respondent's attitude
towards complainant which complainant and her witnesses
described as rude. It is also consistent with the testimonies of
witnesses that respondent would shout at complainant and would
crack green jokes towards her:
"Damdamin kong sumusumpling pilit kong itinatago
Sa malalakas na mga tinig asik at mga biro
Ngunit kung nag-iisa puso ko'y nagdurugo
Hinahanap ng puso ko ang maganda mong anyo.
"The fifth stanza jibes with complainant's testimony that
respondent gave her an unexpected kiss on at least two
occasions:
"Bawat patak ng luha ko'y mga butil ng pag-ibig
Na siya kong kalasag sa pagnanakaw ng halik

Kapalaran ay malupit, di kita makatalik

Sa ngayon o bukas pagkat di mo ibig
Aangkinin kita kahit sa panaginip
Gano'n kita kamahal Joy, aking pag- ibig."
(Complainant's Memorandum, pp. 32-33)
Complainant found the poem repulsive (obscene) particularly the
line saying "Kapalaran ay malupit, di kita makatalik sa ngayon at
bukas pagkat di mo ibig." In her testimony, complainant said she
considered the poem malicious because they were both married
persons, and he was a judge and she was his
subordinate. Although outraged, complainant respectfully asked
permission to leave while putting the poem in the pocket of her
blazer. She then proceeded towards the outer room where she
was surprised to find the door closed and the chair holding it open

now barricaded it. The knob's button was now in a vertical

position signifying that door was locked.
Complainant was removing the chair when respondent walked to
her in big strides asking her for a kiss. Seconds later he was
embracing her and trying to kiss her. Complainant evaded and
struggled and pushed respondent away. Then panicking, she ran
in the direction of the filing cabinets. Respondent caught up with
her, embraced her again, pinned her against the filing cabinets
and pressed the lower part of his body against hers. Complainant
screamed for help while resisting and pushing respondent. Then
she ran for the open windows of the inner room. But before she
could reach it respondent again caught her. In the ensuing
struggle, complainant slipped and fell on the floor, her elbows
supporting the upper part of her body while her legs were
outstretched between respondent's feet. Respondent then bent
his knees in a somewhat sitting (squatting) position, placed his
palms on either side of her head and kissed her on the mouth
with his mouth open and his tongue sticking out. As complainant
continued to struggle, respondent suddenly stopped and sat on
the chair nearest the door of the inner room with his face red and
breathing heavily. Complainant angrily shouted "maniac,
demonyo, bastos, napakawalanghiya ninyo". Respondent kept
muttering "I love you" and was very apologetic offering for his
driver to take her home. Complainant headed for the Maple Room
where, when she entered, she was observed by Bernardo Taruc
and Yolanda Valencia to be flushed in the face and with her hair
disheveled. Yolanda particularly found surprising complainant's
disheveled hair because complainant considered her (long
straight) hair one of her assets and was always arranging
it.Rosanna Garcia in her testimony observed that complainant
was really angry as shown by the way she grabbed her bag
"talagang galit."

It is to be noted that Mrs. Rosanna Garcia, 36, was a most

reluctant witness. When first subpoenaed, she did not appear and
sent a medical certificate (p. 120, Record) that she was suffering
from hypertension. She testified that she was asked by
respondent to sign an affidavit (Exh. F, pp. 56-57, Record)
prepared by him and that eventually, she executed a Sinumpaang
Salaysay in her own handwriting (Exh. G) wherein she stated that
some of the statements in her earlier affidavit were false and that
she was only forced to sign because respondent shouted at her
when she refused; that she was afraid of respondent who was her
boss. She corroborated complainant's declaration that respondent
went to the door of the Maple Room in order to call her
(complainant), adding that his call could not be made from his
office because he could not be heard as his office was far from
the Maple Room. T his is in direct contrast to respondent's
testimony that he did not summon complainant but she came to
him to get the poem that she asked him to make for her.
When complainant angrily left the Maple Room, Yolanda Valencia
followed and walked with her outside. On the road, complainant
told Valencia "napakawalanghiya ni Judge, bastos, demonyo" and
vowed that she would tell her family about what respondent did
to her so that her father would maul him. As testified by Yolanda
Valencia, complainant was so angry "nagdadabog talaga siya"
(TSN, March 19, 1996, p. 194). But as they were already on the
road, complainant did not tell Valencia what happened.
The next day complainant related her experience to Bernardo
Taruc with whom she rode to the office. As testified by Taruc:
"A She was telling me about the incident which happened that
afternoon of December 6, 1995.
Q Can you tell us what she told you about the December 6,
1995 incident?

A She told me that she was kissed by the Judge inside his
office.
Q What else did she tell you, if any?
A She said that she was pushed on the floor and she was very
disorganized in relating the incident it was as if she was
trying to say all things at the same time. But what I got
from her was that she was kissed by the Judge in the
office on December 6 on the lips and she was fuming
mad.
Q What was your reaction when you heard that from Atty.
Talens-Dabot?
A I was . . . I was shocked . . . I don't know the proper term. I
was shocked.
Q What did you say or do upon learning the incident?
A When she later on was pacified, she asked me, 'what am I
going to do? Am I going to press charges?'
Q What did you say?
A I told her it is up to her and before doing it she has to weigh
all things, the consequences if she would file a case.
Q Was that the end of the conversation?
A No, she kept on retelling it all over again till we reach the
office."
(TSN, March 20, 1966, pp. 127-128).

Complainant also related what happened to witness Atty. Elenita

Quinsay but, as testified by Atty. Quinsay, complainant did not
want anybody (else) to know about the kissing incident at that
point. Atty. Quinsay advised complainant to talk with respondent
and ask for a transfer.
On December 12, 1995 complainant went to the Hall of Justice
where respondent was, and as he was about to board his car,
approached him and verbally broached her request for
transfer. He acceded. Thus in the morning of December 18, 1995,
complainant brought her written request for transfer dated
December 12, 1995 (Exh. N) for respondent's signature,
reminding him of his earlier verbal approval. He refused saying he
needed her for two (2) administrative cases that he was
investigating. When she insisted, he shouted at her saying it was
his decision and had to be obeyed. However, he eventually signed
the memorandum (Exh. O) transferring her later that morning.
Two days later, on December 20, 1995, complainant, after
consulting her family, reported the matter to the police and filed
with the Municipal Trial Court of San Fernando, Pampanga criminal
cases for acts of lasciviousness (Exh. 3), Violation of Anti-Sexual
Harassment Law (Exh. 5) and this administrative case the
following day.
For his part, respondent mostly denied complainant's
allegations. He presented his version of some specific incidents or
conduct such as that he was merely imitating complainant's
gesture with her forefinger as she nervously introduced her
boyfriend to him. He admitted that he kissed her ("November
incident was not the first but it was the last") and other female
employees; admitted the pre-wedding incident where he told Mrs.
Leander "tanga ka kasi" but said it was only a joke; admitted that
his voice is louder than others but he does not shout; admitted
that he tells green but "never vulgar" jokes. Denying Marilyn

Leander's allegations and disclaiming any knowledge of Exhs. A to

E, he described Leander as a "very young funny person, always
laughing." In his testimony he never showed why Marilyn
Leander, Rosanna Garcia or Yolanda Valencia would testify against
him to corroborate complainant's testimony, reserving his venom
for Bernardo Taruc. He said Taruc's research work were "not
usable. He insinuated that Taruc perjured himself because he was
jealous about Marilyn Leander with whom he (Taruc) has a
relationship.
He declared that nothing happened on December 6, that it was
complainant who entered his room to get the poem she herself
asked him to make. He called the December 6 incident a "mere
fabrication" of complainant in vengeful retaliation of four (4)
incident that he either scolded or humiliated her namely: in
September 1995 when he reminded, but did not scold, her to
report to Branch 43; in November 1995 when he reproached her
for not reflecting in her Certificate of Service that she had gone to
Hongkong; in the first week of December 1995 when she
committed an error in the notice for a judges' meeting; and finally
on December 18, 1995, when he scolded her for insisting to allow
her to return to the Office of the Clerk of Court. He asserted that
he never noticed any change of complainant's behavior towards
him and that he was never attracted to her.
He dismissed the poem marked Exhibit "M" as nothing more than
an intellectual creation "too apocryphal to be true", that it was
exaggerated and meant only to praise and entertain
complainant. He declared that he had in fact written other poems
(Exhs. 25 to 30) including the one published through a certain
Fred Roxas (Exh. 25). Belying the kissing incident, he contended
that there had been a gardener working at 3:00 to 5:00 that
afternoon on the lawn just outside the window of his office,
implying that if indeed complainant had screamed, it would have

been heard by the gardener. But it is to be noted that this alleged

gardener was never presented.
(pp. 11-31, Report and Recommendation)
Based on the foregoing findings, the Investigating Justice
made the following conclusions: a) that there is sufficient
evidence to create a moral certainty that respondent committed
the acts complained of, especially the violent kissing incident
which transpired last December 6, 1995; b) that complainant and
her witnesses are credible witnesses who have no ulterior motive
or bias to falsely testify against respondent; c) that respondent's
denials can not prevail over the weight and probative value of the
affirmative assertions of complainant and her witnesses; d) that
respondent's poem has damned him, being documented proof of
his sexual intentions towards the complainant; e) that by filing
her charges imputing to respondent a crime against chastity and
with her background as a lawyer and a court employee,
complainant was well-aware that her honor would itself be on
trial; f) that it is unbelievable that complainant, a demure newlymarried lady and a religious person, would fabricate a story with
such severe implications on respondent's professional and
personal life just to get even with respondent for an alleged
simple scolding incident; and g) that by doing the acts
complained of, respondent has tempted the morals of not only
complainant but also the other court employees over whom he
exercised power and influence as Executive Judge. The
Investigating Justice thereupon, recommended that respondent
be dismissed from the service with prejudice to re-appointment in
any other government position and with forfeiture of all benefits
and privileges appertaining him, if any.
The Court has reviewed the record of this case and has
thereby satisfied itself that the findings and recommendations of
the Investigating Justice are in truth adequately supported by the

evidence and are in accord with applicable legal principles. The

Court agrees and adopts such findings and recommendations.
The integrity of the Judiciary rests not only upon the fact that
it is able to administer justice but also upon the perception and
confidence of the community that the people who run the system
have done justice. At times, the strict manner by which we apply
the law may, in fact, do justice but may not necessarily create
confidence among the people that justice, indeed, is
served. Hence, in order to create such confidence, the people
who run the judiciary, particularly judges and justices, must not
only be proficient in both the substantive and procedural aspects
of the law, but more importantly, they must possess the highest
integrity, probity, and unquestionable moral uprightness, both in
their public and private lives. Only then can the people be
reassured that the wheels of justice in this country run with
fairness and equity, thus creating confidence in the judicial
system.
With the avowed objective of promoting confidence in the
Judiciary, we have the following provisions of the Code of Judicial
Conduct:
Canon I
Rule 1.01: A Judge should be the embodiment of competence,
integrity and independence.
Canon II
Rule 2.00: A Judge should avoid impropriety and the appearance
of impropriety in all activities.
Rule 2.01: A judge should so behave at all times as to promote
public confidence in the integrity and impartiality of the judiciary.

The Court has adhered and set forth the exacting standards of
morality and decency which every member of the judiciary must
observe (Sicat vs. Alcantara, 161 SCRA 284 [1988]). A magistrate
is judged not only by his official acts but also by his private
morals, to the extent that such private morals are externalized
(Junio vs. Rivera, 225 SCRA 688 [1993]). He should not only
possess proficiency in law but should likewise possess moral
integrity for the people look up to him as a virtuous and upright
man.
In Dy Teban Hardware and Auto Supply Co. vs. Tapucar (102
SCRA 493 [1981]), the Court laid down the rationale why every
judge must possess moral integrity, thusly;
The personal and official actuations of every member of the
judiciary must be beyond reproach and above suspicion. The faith
and confidence of the people in the administration of justice can
not be maintained if a judge who dispenses it is not equipped
with the cardinal judicial virtue of moral integrity and if he
obtusely continues to commit affront to public decency. In fact,
moral integrity is more than a virtue; it is a necessity in the
judiciary.(at p. 504.)
In Castillo vs.
emphasized that:

Calanog (199

SCRA

75

[1991]),

it

was

The Code of Judicial Ethics mandates that the conduct of a judge

must be free of a whiff of impropriety not only with respect to his
performance of his judicial duties, but also to his behavior outside
his sala and as a private individual. There is no dichotomy of
morality; a public official is also judged by his private morals. The
Code dictates that a judge, in order to promote public confidence
in the integrity and impartiality of the judiciary, must behave with
propriety at all times. As we have very recently explained, a

judge's official life can not simply be detached or separated from

his personal existence. Thus:

parentis over his subordinate employees, respondent was the one

who preyed on them, taking advantage of his superior position.

Being the subject of constant public scrutiny, a judge should

freely and willingly accept restrictions on conduct that might be
viewed as burdensome by the ordinary citizen.

Noteworthy then
Investigating Justice:

A judge should personify integrity and exemplify honest public

service. The personal behavior of a judge, both in the
performance of his official duties and in private life should be
above suspicion.(at p. 93.)
Respondent has failed to measure up to these exacting
standards. He has behaved in a manner unbecoming of a judge
and as model of moral uprightness. He has betrayed the people's
high expectations and diminished the esteem in which they hold
the judiciary in general.
We need not repeat the narration of lewd and lustful acts
committed by respondent judge in order to conclude that he is
indeed unworthy to remain in office. The audacity under which
the same were committed and the seeming impunity with which
they were perpetrated shock our sense of morality. All roads lead
us to the conclusion that respondent judge has failed to behave in
a manner that will promote confidence in the judiciary. His
actuations, if condoned, would damage the integrity of the
judiciary, fomenting distrust in the system. Hence, his acts
deserve no less than the severest form of disciplinary sanction of
dismissal from the service.
The actuations of respondent are aggravated by the fact that
complainant is one of his subordinates over whom he exercises
control and supervision, he being the executive judge. He took
advantage of his position and power in order to carry out his
lustful and lascivious desires. Instead of he being in loco

is

the

following

observation

of

the

But the very act of forcing himself upon a married woman, being
himself a married man, clearly diverts from the standard of
morality expected of a man of less than his standing in
society. This is exacerbated by the fact that by doing the acts
complained of, he has tempted the morals of not only the
complainant but also the young Mrs. Marilyn Leander and the
other employees in the court over whom he exercised power and
influence as Executive Judge.(pp. 36-37.)
Respondent may indeed be a legally competent person as
evidenced by his published law books (translations from English
to Tagalog) and his legal studies abroad, but he has demonstrated
himself to be wanting of moral integrity. He has violated the Code
of Judicial Conduct which requires every judge to be the
embodiment of competence, integrity, and independence and to
avoid impropriety and the appearance of impropriety in all
activities as to promote public confidence in the integrity and
impartiality of the judiciary.
Having tarnished the image of the Judiciary, respondent, the
Court holds without any hesitation, must be meted out the
severest form of disciplinary sanction -- dismissal from the
service.
As a reminder to all judges, it is fitting to reiterate one of the
mandates of the Court in its Circular No. 13 dated July 1, 1987, to
wit:
Finally, all trial judges should endeavor to conduct themselves
strictly in accordance with the mandate of existing laws and the

Code of Judicial Ethics that they be exemplars in the communities

and the living personification of justice and the Rule of Law.
WHEREFORE, Judge Hermin E. Arceo is hereby DISMISSED
from the service for gross misconduct and immorality prejudicial
to the best interests of the service, with forfeiture of all
retirement benefits and with prejudice to re-employment in any
branch of the government, including government-owned and
controlled corporations.
SO ORDERED.

JOSELANO GUEVARRA v.
ATTY. JOSE EMMANUEL
EALA,

A.C. No. 7136

On April 22, 2001, complainant went uninvited to Irenes

birthday celebration at which he saw her and respondent

August 1, 2007

DECISION
Joselano Guevarra (complainant) filed on March 4, 2002 a
Complaint for Disbarment[1] before the Integrated Bar of the
Philippines (IBP) Committee on Bar Discipline (CBD) against Atty.
Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for grossly
immoral conduct and unmitigated violation of the lawyers oath.

celebrating with her family and friends. Out of embarrassment,

anger and humiliation, he left the venue immediately. Following
that incident, Irene went to the conjugal house and hauled off all
her personal belongings, pieces of furniture, and her share of the
household appliances.
Complainant later found, in the masters bedroom, a folded

In his complaint, Guevarra gave the following account:

social card bearing the words I Love You on its face, which card

He first met respondent in January 2000 when his (complainants)

when unfolded contained a handwritten letter dated October 7,

then-fiancee Irene Moje (Irene) introduced respondent to him as

2000, the day of his wedding to Irene, reading:

her friend who was married to Marianne (sometimes spelled Mary

Ann) Tantoco with whom he had three children.
After

his

marriage

to

Irene

on October

7,

2000,

complainant noticed that from January to March 2001, Irene had

been receiving from respondent cellphone calls, as well as
messages some of which read I love you, I miss you, or Meet you
at Megamall.
Complainant also noticed that Irene habitually went home
very late at night or early in the morning of the following day, and
sometimes did not go home from work. When he asked about her
whereabouts, she replied that she slept at her parents house in
Binangonan, Rizal or she was busy with her work.
In February or March 2001, complainant saw Irene and
respondent together on two occasions. On the second occasion,
he confronted them following which Irene abandoned the conjugal
house.

My everdearest Irene,
By the time you open this, youll be moments away from
walking down the aisle. I will say a prayer for you
that you may find meaning in what youre about to
do.
Sometimes I wonder why we ever met. Is it only for me to
find fleeting happiness but experience eternal
pain? Is it only for us to find a true love but then lose
it again? Or is it because theres a bigger plan for the
two of us?
I hope that you have experienced true happiness with me. I
have done everything humanly possible to love
you. And today, as you make your vows . . . I make
my own vow to YOU!
I will love you for the rest of my life. I loved you from the
first time I laid eyes on you, to the time we spent
together, up to the final moments of your single
life. But more importantly, I will love you until the life
in me is gone and until we are together again.
Do not worry about me! I will be happy for you. I have
enough memories of us to last me a lifetime. Always
remember though that in my heart, in my mind and
in my soul, YOU WILL ALWAYS

C.[4] (Italics and emphasis in the original; CAPITALIZATION of

the phrase flaunting their adulterous relationship supplied),

. . . AND THE WONDERFUL THINGS YOU DO!

BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE
YOURS AND YOURS ALONE!
I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG
AS IM LIVING MY TWEETIE YOULL BE![2]
Eternally yours,
NOLI

Complainant soon saw respondents car and that of Irene

constantly parked at No. 71-B 11th Street, New Manila where, as

respondent, in his ANSWER, stated:

4.
Respondent specifically denies having ever
flaunted an adulterous relationship with Irene as
alleged in paragraph 14 of the Complaint, the truth of
the matter being that their relationship was low profile
and known only to the immediate members of
their respective families, and that Respondent, as far
as the general public was concerned, was still known to
be legally married to Mary Anne Tantoco.[5] (Emphasis
and underscoring supplied)

he was to later learn sometime in April 2001, Irene was already

residing. He also learned still later that when his friends saw Irene
on or about January 18, 2002 together with respondent during a
concert, she was pregnant.

In his ANSWER,[3] respondent admitted having sent the I

LOVE

YOU

card

on

which

the

above-quoted

letter

handwritten.
On paragraph 14 of the COMPLAINT reading:
14. Respondent and Irene were even FLAUNTING THEIR
ADULTEROUS RELATIONSHIP as they attended social
functions together. For instance, in or about the third week
of September 2001, the couple attended the launch of the
Wine All You Can promotion of French wines, held at the
Mega Strip of SM Megamall B at Mandaluyong City. Their
attendance was reported in Section B of the Manila
Standard issue
of 24
September
2001,
on
page
21. Respondent and Irene were photographed together;
their picture was captioned: Irene with Sportscaster
Noli Eala. A photocopy of the report is attached as Annex

was

On paragraph 15 of the COMPLAINT reading:

15. Respondents adulterous conduct with the complainants
wife and his apparent abandoning or neglecting of his own
family, demonstrate his gross moral depravity, making him
morally unfit to keep his membership in the
bar. He flaunted his aversion to the institution of marriage,
calling it a piece of paper. Morally reprehensible was his
writing the love letter to complainants bride on the very
day of her wedding, vowing to continue his love for her
until we are together again, as now they are.
[6]
(Underscoring supplied),
respondent stated in his ANSWER as follows:
5. Respondent specifically denies the allegations in
paragraph
15
of
the
Complaint
regarding
his adulterous relationship and that his acts demonstrate
gross moral depravity thereby making him unfit to keep his
membership in the bar, the reason being that Respondents
relationship with Irene was not under scandalous
circumstances and that as far as his relationship with his
own family:

5.1 Respondent has maintained a civil, cordial and peaceful

relationship with [his wife] Mary Anne as in fact they still
occasionally meet in public, even if Mary Anne is aware
of Respondents special friendship with Irene.
5.5 Respondent also denies that he has flaunted his
aversion to the institution of marriage by calling the
institution of marriage a mere piece of paper because his
reference [in his above-quoted handwritten letter to Irene]
to the marriage between Complainant and Irene as a piece
of paper was merely with respect to the formality of the
marriage contract.[7] (Emphasis and underscoring supplied)
Respondent admitted[8] paragraph 18 of the COMPLAINT reading:

under scandalous circumstances nor tantamount

to grossly immoral conduct as would be a ground for
disbarment pursuant to Rule 138, Section 27 of the Rules
of Court.[11] (Emphasis and underscoring supplied)

To respondents ANSWER, complainant filed a REPLY,

[12]

alleging that Irene gave birth to a girl and Irene named

respondent

in

the

Certificate

of

Live

Birth

as

the

girls

father. Complainant attached to the REPLY, as Annex A, a copy of

a Certificate of Live Birth[13] bearing Irenes signature and naming
respondent as the father of her daughter Samantha Irene
Louise Moje who was born on February 14, 2002 at St. Lukes

18. The Rules of Court requires lawyers to support the

Constitution and obey the laws. The Constitution regards
marriage as an inviolable social institution and is the
foundation of the family (Article XV, Sec. 2).[9]
And on paragraph 19 of the COMPLAINT reading:

Hospital.

19. Respondents grossly immoral conduct runs afoul of the

he denied having personal knowledge of the Certificate of Live

Constitution and the laws he, as a lawyer, has been sworn

Birth attached to the complainants Reply. [15] Respondent moved to

to uphold. In pursuing obsessively his illicit love for the

dismiss the complaint due to the pendency of a civil case filed by

complainants wife, he mocked the institution of marriage,

complainant for the annulment of his marriage to Irene, and a

betrayed his own family, broke up the complainants marriage,

criminal complaint for adultery against respondent and Irene

commits adultery with his wife, and degrades the legal

which was pending before the Quezon City Prosecutors Office.

profession.

[10]

TO DISMISS[14] dated January 10, 2003 from respondent in which

(Emphasis and underscoring supplied),

respondent, in his ANSWER, stated:

7. Respondent
paragraph 19
that under the
with respect
profile special

Complainants REPLY merited a REJOINDER WITH MOTION

specifically denies the allegations in

of the Complaint, the reason being
circumstances the acts of Respondent
to his purely personal and low
relationship with Irene is neither

During the investigation before the IBP-CBD, complainants

Complaint-Affidavit and REPLY to ANSWER were adopted as his
testimony on direct examination.[16]Respondents counsel did not
cross-examine complainant.[17]

the DISMISSAL of the above-entitled case for lack

of merit.[20] (Italics and emphasis in the original)

After investigation, IBP-CBD Investigating Commissioner

Milagros

V.

San

RECOMMENDATION

[18]

Juan,

in

12-page

REPORT

AND

dated October 26, 2004, found the charge

against respondent sufficiently proven.

Hence, the present petition [21] of complainant before this

Court, filed pursuant to Section 12 (c), Rule 139 [22] of the
Rules of Court.

The Commissioner thus recommended [19] that respondent

The petition is impressed with merit.

be disbarred for violating Rule 1.01 of Canon 1 of the Code of

Professional Responsibility reading:
Rule 1.01: A lawyer
dishonest, immoral or
supplied),

shall not engage in unlawful,

deceitful conduct (Underscoring

and Rule 7.03 of Canon 7 of the same Code reading:

Rule
7.03: A
lawyer
shall
not
engage
in conduct that adversely reflects on his fitness to practice
law, nor shall he, whether in public or private life, behave
in a scandalous manner to the discredit of the legal
profession. (Underscoring supplied)
The IBP Board of Governors, however, annulled and set
aside the Recommendation of the Investigating Commissioner
and accordingly dismissed the case for lack of merit, by
Resolution dated January 28, 2006 briefly reading:
RESOLUTION NO. XVII-2006-06
CBD Case No. 02-936
Joselano C. Guevarra vs.
Atty. Jose Emmanuel M. Eala
a.k.a. Noli Eala
RESOLVED to ANNUL and SET ASIDE, as it is hereby
ANNULLED AND SET ASIDE, the Recommendation of
the Investigating Commissioner, and to APPROVE

Oddly enough, the IBP Board of Governors, in setting aside

the Recommendation of the Investigating Commissioner and
dismissing the case for lack of merit, gave no reason therefor as
its above-quoted 33-word Resolution shows.
Respondent contends, in his Comment [23] on the present
petition of complainant, that there is no evidence against him.
[24]

The

contention

fails. As

the

IBP-CBD

Investigating

Commissioner observed:
While it may be true that the love letter dated October 7,
2000 (Exh. C) and the news item published in the Manila
Standard (Exh. D), even taken together do not
sufficiently prove that respondent is carrying on an
adulterous relationship with complainants wife, there are
other pieces of evidence on record which support the
accusation of complainant against respondent.
It should be noted that in his Answer dated 17
October 2002, respondent through counsel made
the following statements to wit: Respondent
specifically denies having [ever] flaunted an adulterous
relationship with Irene as alleged in paragraph [14] of
the Complaint, the truth of the matter being [that] their
relationship was low profile and known only to
immediate members of their respective families . . . ,
and Respondent specifically denies the allegations in
paragraph 19 of the complaint, the reason being that
under the circumstances the acts of the respondents
with respect to his purely personal and low profile

relationship with Irene is neither under scandalous

circumstances nor tantamount to grossly immoral
conduct . . .
These statements of respondent in his Answer are
an admission that there is indeed a special
relationship between him and complainants wife,
Irene, [which] taken together with the Certificate
of
Live
Birth
of
Samantha
Louise
Irene
Moje (Annex H-1) sufficiently prove that there was
indeed an illicit relationship between respondent and
Irene which resulted in the birth of the child
Samantha. In the Certificate of Live Birth of
Samantha it should be noted that complainants
wife
Irene
supplied
the
information
that
respondent was the father of the child. Given the
fact that the respondent admitted his special
relationship with Irene there is no reason to believe
that
Irene
would
lie
or
make
any
misrepresentation regarding the paternity of the
child. It should be underscored that respondent has
not categorically denied that he is the father of
Samantha Louise Irene Moje.[25] (Emphasis and
underscoring supplied)
Indeed, from respondents ANSWER, he does not deny
carrying on an adulterous relationship with Irene,
adultery being defined under Art. 333 of the Revised
Penal Code as that committed by any married woman
who shall have sexual intercourse with a man not her
husband and by the man who has carnal knowledge of
her, knowing her to be married, even if the marriage be
subsequently declared void.[26] (Italics supplied) What
respondent denies is having flaunted such relationship,
he maintaining that it was low profile and known only to
the immediate members of their respective families.
In

other

pregnant,

words,

respondents

denial

is

a negative

a denial pregnant with the admission of the substantial facts in

the pleading responded to which are not squarely denied. It was
in effect an admission of the averments it was directed at. Stated
otherwise, a negative pregnant is a form of negative expression
which carries with it in affirmation or at least an implication of
some kind favorable to the adverse party. It is a denial pregnant
with an admission of the substantial facts alleged in the
pleading. Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so qualified or
modified are literally denied, it has been held that the qualifying
circumstances alone are denied while the fact itself is
admitted.[27] (Citations

omitted; emphasis and

underscoring

supplied)
A negative pregnant too is respondents denial of
having personal knowledge of Irenes daughter Samantha
Louise Irene Mojes Certificate of Live Birth. In said
certificate, Irene named respondent a lawyer, 38 years old
as the childs father. And the phrase NOT MARRIED is
entered on the desired information on DATE AND PLACE OF
MARRIAGE. A comparison of the signature attributed to
Irene in the certificate[28] with her signature on the Marriage
Certificate[29] shows that they were affixed by one and the
same person. Notatu dignum is that, as the Investigating
Commissioner noted, respondent never denied being the
father of the child.
Franklin A. Ricafort, the records custodian of St. Lukes
Medical Center, in his January 29, 2003 Affidavit [30] which he
identified at the witness stand, declared that Irene gave the
information in the Certificate of Live Birth that the childs father is

Jose Emmanuel Masacaet Eala, who was 38 years old and a

admission to practice, or for a willful disobedience appearing as

lawyer.[31]

an attorney for a party to a case without authority so to do. The

practice of soliciting cases at law for the purpose of gain, either

Without

doubt,

the

adulterous

relationship

between

respondent and Irene has been sufficiently proven by more than

clearly preponderant evidence that evidence adduced by one
party which is more conclusive and credible than that of the other
party and, therefore, has greater weight than the other [32] which is
the quantum of evidence needed in an administrative case
against a lawyer.

personally or

through

paid

agents

or

brokers,

constitutes

malpractice.
The disbarment or suspension of a member of the
Philippine Bar by a competent court or other disciplinatory
agency in a foreign jurisdiction where he has also been
admitted as an attorney is a ground for his disbarment or
suspension if the basis of such action includes any of the
acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be prima facie evidence of the
ground for disbarment or suspension (Emphasis and
underscoring supplied),

Administrative cases against lawyers belong to a

class of their own. They are distinct from and they may
proceed independently of civil and criminal cases.
. . . of proof for these types of cases differ. In a criminal
case, proof beyond reasonable doubt is necessary; in an
administrative case for disbarment or suspension, clearly
preponderant evidence is all that is required.
[33]
(Emphasis supplied)

under scandalous circumstances.[34]

The immediately-quoted Rule which provides the grounds
for disbarment or suspension uses the phrase grossly immoral
conduct, not under scandalous circumstances.Sexual intercourse

Respondent insists, however, that disbarment does not lie

because his relationship with Irene was not, under Section 27 of
Rule 138 of the Revised Rules of Court, reading:

under scandalous circumstances is, following Article 334 of the

Revised Penal Code reading:

Supreme Court for any deceit, malpractice, or other gross

ART. 334. Concubinage. - Any husband who shall keep a

mistress in the conjugal dwelling, or, shall have sexual
intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any
other place, shall be punished by prision correccional in its
minimum and medium periods

misconduct in such office, grossly immoral conduct, or by

an element of the crime of concubinage when a married man has

reason of his conviction of a crime involving moral turpitude, or

sexual intercourse with a woman elsewhere.

SEC.

27. Disbarment

or

suspension

of

attorneys

by

Supreme Court, grounds therefor. A member of the bar may be

disbarred or suspended from his office as attorney by the

for any violation of the oath which he is required to take before

Whether a lawyers sexual congress with a woman not his

wife or without the benefit of marriage should be characterized as
grossly

immoral

conduct

depends

on

the

surrounding

circumstances.[35] The case at bar involves a relationship between

a married lawyer and a married woman who is not his wife. It is
immaterial

whether

the

affair

was

carried

out

discreetly. Apropos is the following pronouncement of this Court

in Vitug v. Rongcal:[36]
On the charge of immorality, respondent does not deny
that he had an extra-marital affair with complainant, albeit brief
and discreet, and which act is not so corrupt and false as to
constitute a criminal act or so unprincipled as to be reprehensible
to a high degree in order to merit disciplinary sanction. We
disagree.

Respondent in fact also violated the lawyers oath he took

before admission to practice law which goes:
support
its
Constitution and obey the laws as well as the legal
orders of the duly constituted authorities therein

xxxx
While it has been held in disbarment cases
that the mere fact of sexual relations between
two unmarried adults is not sufficient to warrant
administrative sanction for such illicit behavior, it
is not so with respect to betrayals of the
marital vow of fidelity. Even if not all forms of
extra-marital relations are punishable under penal
law, 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. [37]
(Emphasis and underscoring supplied)

And so is the pronouncement in Tucay v. Atty. Tucay:

The Court need not delve into the question

of whether or not the respondent did contract a
bigamous marriage . . . It is enough that the
records of this administrative case substantiate
the findings of the Investigating Commissioner, as
well as the IBP Board of Governors, i.e., that
indeed respondent has been carrying on an illicit
affair with a married woman, a grossly immoral
conduct and indicative of an extremely low
regard for the fundamental ethics of his
profession. This detestable behavior renders
him regrettably unfit and undeserving of the
treasured honor and privileges which his
license confers upon him.[39] (Underscoring
supplied)

Respondent admittedly is aware of Section 2 of Article XV (The

Family) of the Constitution reading:
Section 2. Marriage, as an inviolable social
institution, is the foundation of the family and shall
be protected by the State.
In this connection, the Family Code (Executive Order No. 209),
which echoes this constitutional provision, obligates the husband
and the wife to live together, observe mutual love, respect and
[38]

fidelity, and render mutual help and support. [40]

Furthermore, respondent violated Rule 1.01 of Canon 1 of

the Code of Professional Responsibility which proscribes a lawyer
from

engaging

in unlawful,

dishonest, immoral or

That the marriage between complainant and Irene was

deceitful

conduct, and Rule 7.03 of Canon 7 of the same Code which

subsequently

proscribes a lawyer from engaging in any conduct that adversely

complained of took place before the marriage was declared null

reflects on his fitness to practice law.

declared

void ab initio is

immaterial. The

acts

and void.[43] As a lawyer, respondent should be aware that a man

and a woman deporting themselves as husband and wife are

Clutching at straws, respondent, during the pendency of

presumed, unless proven otherwise, to have entered into a lawful

the investigation of the case before the IBP Commissioner, filed a

contract of marriage.[44] In carrying on an extra-marital affair with

Manifestation[41] on March 22, 2005 informing the IBP-CBD that

Irene prior to the judicial declaration that her marriage with

complainants petition for nullity of his (complainants) marriage to

complainant was null and void, and despite respondent himself

Irene had been granted by Branch 106 of the Quezon City

being married, he showed disrespect for an institution held sacred

Regional Trial Court, and that the criminal complaint for adultery

by the law. And he betrayed his unfitness to be a lawyer.

complainant filed against respondent and Irene based on the

same set of facts alleged in the instant case, which was pending

As for complainants withdrawal of his petition for review

review before the Department of Justice (DOJ), on petition of

before the DOJ, respondent glaringly omitted to state that before

complainant, had been, on motion of complainant, withdrawn.

complainant filed his December 23, 2003Motion to Withdraw his

Petition for Review, the DOJ had already promulgated a Resolution

The

Secretary

of

Justices

Resolution

of January

16,

on September 22, 2003 reversing

the

dismissal by

2004 granting complainants Motion to Withdraw Petition for

the Quezon City Prosecutors Office of complainants complaint for

Review reads:

adultery. In

Considering that the instant motion was filed before the

reversing

the

City

Prosecutors

Resolution,

DOJ

Secretary Simeon Datumanong held:

Parenthetically

final resolution of the petition for review, we are inclined to grant

the totality

of

evidence adduced

by

the same pursuant to Section 10 of Department Circular No. 70

complainant would, in the fair estimation of the Department,

dated July 3, 2000, which provides that notwithstanding the

sufficiently establish all the elements of the offense of adultery on

perfection of the appeal, the petitioner may withdraw the same at

the

any time before it is finally resolved, in which case the

respondent Moje conceded to complainant that she was going out

appealed resolution shall stand as though no appeal has

on

been taken.[42] (Emphasis supplied by complainant)

complainant confronted her about Ealas frequent phone calls and

part
dates

of
with

both

respondents. Indeed,

respondent Eala,

and

this

she

early
did

on,
when

text

messages

to

her. Complainant

witnessed Moje and Eala having

occasions. Respondent Eala never

denied

also

rendezvous
the

fact

personally
on
that

two
he

knew Moje to be married to complainant[.] In fact, he (Eala)

both respondents Eala and Moje have

not
denied, in any categorical manner, that Eala is
the father of the child Samantha Irene
Louise Moje.[45] (Emphasis
and
underscoring
supplied)

himself was married to another woman. Moreover, Mojes eventual

It bears emphasis that adultery is a private offense which

abandonment of their conjugal home, after complainant had once

cannot be prosecuted de oficio and thus leaves the DOJ no choice

more confronted her about Eala, only served to confirm the illicit

but to grant complainants motion to withdraw his petition for

relationship involving both respondents. This becomes all the

review. But even if respondent and Irene were to be acquitted of

more apparent by Mojes subsequent relocation in No. 71-B,

adultery after trial, if the Information for adultery were filed in

11th Street, New Manila, Quezon City, which was a few blocks

court, the same would not have been a bar to the present

away from the church where she had exchange marital vows with

administrative complaint.

complainant.
It was in this place that the two lovers
apparently cohabited. Especially since Ealas vehicle
and
that
of Mojes were
always
seen
there. Moje herself admits that she came to live in
the said address whereas Eala asserts that that was
where he held office. The happenstance that it was
in that said address that Eala and Moje had decided
to hold office for the firm that both had formed
smacks too much of a coincidence. For one, the said
address appears to be a residential house, for that
was where Moje stayed all throughout after her
separation
from
complainant. It
was
both
respondents love nest, to put short; their illicit affair
that was carried out there bore fruit a few months
later when Moje gave birth to a girl at the nearby
hospital of St. Lukes Medical Center. What finally
militates against the respondents is the indubitable
fact that in the certificate of birth of the
girl, Moje furnished the information that Eala was the
father. This speaks all too eloquently of the
unlawful and damning nature of the adulterous
acts of the respondents. Complainants supposed
illegal procurement of the birth certificate is most
certainly
beside
the
point
for

Citing the ruling in Pangan v. Ramos,[46] viz:

x x x The acquittal of respondent Ramos [of]
the criminal charge is not a bar to these
[administrative] proceedings. The standards of legal
profession are not satisfied by conduct which merely
enables one to escape the penalties of x x x criminal
law. Moreover, this Court, in disbarment proceedings
is acting in an entirely different capacity from that
which
courts
assume
in
trying
criminal
case[47] (Italics in the original),

this Court

in Gatchalian Promotions

Atty. Naldoza,

[48]

Talents

Pools,

Inc.

held:

Administrative cases against lawyers belong to a class of

their own. They are distinct from and they may proceed
independently of civil and criminal cases.

v.

WHEREFORE,

the

petition

is GRANTED. Resolution

No. XVII-2006-06 passed on January 28, 2006 by the Board of

Governors

of

the

Integrated

Bar

of

M.

Eala,

the Philippinesis ANNULLED and SET ASIDE.

Respondent,

Atty.

Jose

Emmanuel

is DISBARRED for grossly immoral conduct, violation of his oath

of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule
7.03 of the Code of Professional Responsibility.
Let

copy

of

this

Decision,

which

is

immediately executory, be made part of the records of respondent

in

the

Office

of

the

Bar

Confidant,

Supreme

Court

of

thePhilippines. And let copies of the Decision be furnished the

Integrated Bar of the Philippines and circulated to all courts.
This Decision takes effect immediately.

SO ORDERED.

Jerry T. Wong
Oct.17,2008

v.

Atty,

Salvador

Moya

II

AC

6972

DECISION
Before us is a complaint[1] dated December 1, 2003 for the
disbarment of respondent Atty. Salvador N. Moya II filed by
complainant Jerry T. Wong with the Integrated Bar of the
Philippines-Commission on Bar Discipline (IBP-CBD), docketed as
CBD Case No. 03-1172 for violation of Batas Pambansa 22 (B.P.
22) and non-payment of debt.
Complainant avers that he is the owner of J & L Agro-vets, a
company engaged in the business of selling agricultural and
veterinary products and medicine. Sometime in 1997, he retained
the services of respondent for the purpose of collecting due and
demandable debts in favor of the company. Respondent also
handled personal cases of complainant and his wife.As their
relationship prospered, respondent asked financial help from
complainant for the construction of his house and purchase of a
car. Complainant willingly helped him. Pursuant to their
arrangement, complainant purchased a car on installment basis
from Transfarm for respondent. He issued postdated checks to
cover its payment to Transfarm. The respondent in turn issued
checks in favor of the complainant to reimburse the latter.

The checks issued by complainant in favor of Transfarm were duly

encashed upon presentment. However, the checks issued by
respondent to reimburse complainant were dishonored for the
reason Account Closed. Respondent refused to comply with the
repeated demands of the complainant to replace the dishonored
checks.
Furthermore, complainant introduced respondent to Quirino
Tomlin and to the owner of Unisia Merchandising Corporation,
from whom respondent obtained construction materials for the
construction of his house on credit in the amount
of P164,000.00. Respondent also failed to pay this indebtedness,

which remained unsettled and thus caused embarrassment to

complainant.
Respondent as well handled another case of complainant against
Berting Diwa, docketed as Civil Case No. 1482 before the
Municipal Trial Court (MTC) of Sta. Maria, Bulacan. It was decided
on September 21, 2000. After the decision became final and
executory, complainant and his wife sought the execution of the
judgment through respondent.
On August 15, 2001, Diwa paid the amount of P15,680.50 for the
satisfaction of the judgment. As complainants counsel,
respondent received the payment but he did not inform
complainant about it. Complainant had knowledge of it only when
he got hold of a copy of the Manifestation with Prayer to
Terminate Proceedings filed by respondent before the MTC of Sta.
Maria, Bulacan.
On December 1, 2003, the IBP-CBD ordered respondent to file his
answer to the complaint for disbarment within 15 days from
receipt of thereof. He filed three motions for extension of time to
file his responsive pleading/answer. The first motion
dated January 5, 2004 asked for a 15-day extension from January
5, 2004 or until January 20, 2004within which to file his
responsive pleading. He filed on January 20, 2004 his second
motion for extension of time for another 15-day or until February
4, 2004.[2] On February 4, 2004, he filed a
Manifestation/Explanation for Extension of Time to File Responsive
Pleading/Answer/Motion to Dismiss, citing that as early as October
1, 2003, complainants third cause of action pertaining to a debt
with Unisia Merchandising was already filed in court.
Subsequently, he filed his Motion to Dismiss[3] dated February 27,
2004 on the following grounds:
That complainant is not the proper party in interest and has no
cause of action.

That complainant has prematurely prejudged respondent relative

to the latters intention of not paying his debt as the former
impresses the honorable body that respondent would not pay at
all.
That complainants action in the Berting Diwa case should be
addressed to the Municipal Trial Court of Sta. Maria, Bulacan and
not to the IBP.

In the aforesaid motion, respondent never denied and even

acknowledged what he described as honest debts to Unisia
Merchandising and Mr. Tomlin,[4] which he admitted he was unable
to pay on time due to financial constraints. He added that the IBP,
being not a collection agency, was not the proper forum to lodge
the complaint against him that merely concerned the collection of
his monetary obligations which were then subject of pending
court suits. Similarly, respondent argued that the complaint
against case should be addressed to the MTC of Sta. Maria,
Bulacan.
On April 28, 2004, the IBP-CBD issued an Order [5] denying
respondents motion to dismiss as it is prohibited pleading under
Rule 3, Section 2 of the Rules of Procedure of the
Commission. Respondent was given a new period of fifteen (15)
days within which to file his verified answer.

warning that no further request for extension shall be

entertained.[9]
On July 13, 2004, respondent filed another Very Urgent Motion for
Extension to File Answer,[10] seeking another period of ten (10)
days within which to file his answer or responsive
pleading. On July 21, 2004, the IBP-CBD issued an Order finding
the ground for extension not justifiable. Respondent was also
declared in default and complainant was directed to file his
verified position paper within ten (10) days from receipt of the
Order, after which, the case shall be considered submitted for
report and recommendation, with or without the position paper.
On July 23, 2004, respondent filed a Manifestation with Motion to
Terminate Proceedings on the Ground of Prescription, considering
that six (6) months had already passed from the date of discovery
of the offense.[11]
On August 10, 2004, respondent filed an Omnibus Motion to
Recall Order Dated July 21, 2004[12] in the interest of higher
justice and fair play.
On January 3, 2005, the IBP-CBD issued an Order giving both
parties a period of ten (10) days to file their respective verified
position paper, as follows:

On May 28, 2004, respondent filed his Motion for

Reconsideration[6] which was denied in an Order dated June 16,
2004.[7]

Respondent should be informed that a complaint for disbarment,

suspension or discipline of attorneys prescribes in two (2) years
from the date of the professional misconduct. (Section 1, Rule VIII,
Rules of Procedure of the Commission on Bar Discipline). And
records show that the acts complained of took place in 2002.

On June 28, 2004, respondent filed a Manifestation with Motion to

Give Respondent Extension of Time to File His Answer/or
Responsive Pleadings,[8] requesting for a fresh period of fifteen
(15) days or until July 13, 2004 to file his answer. In the Order
dated June 30, 2004, respondents motion was granted with

In the interest of justice, both parties are given ten (10) days from
receipt of this Order to file their respective verified position
papers. After the expiration of the said period, with or without the
position paper, the case shall be considered submitted for report
and recommendation

Respondent did not file any responsive pleading at all.

Thus, on April 27, 2005, the Investigating IBP Commissioner
Rebecca Villanueva-Maala submitted her Report and
Recommendation.[13] She recommended that respondent be
suspended from the practice of law for one (1) year. The pertinent
portions of the said Report and Recommendation read as follows:
After a careful study and consideration of the facts and evidence
presented, we find merit to warrant disciplinary action against
respondent. His failure to answer the complaint for disbarment
despite due notice on several occasions and to appear on the
scheduled hearings set, shows his flouting resistance to lawful
orders of the court and illustrates his despiciency for his oath of
office as a lawyer, which deserves disciplinary sanction. (Ngayan
v. Tugade, 193 SCRA 779).
Respondents contention that there were cases already filed in
court against him is of no moment. The pendency of a criminal
action against a respondent from the facts of which the
disciplinary proceedings is predicated, does not pose a prejudicial
question to the resolution of the issues in the disbarment case (In
re Brillantes, 76 SCRA 1; Calo v. Degamo, 20 SCRA 447).
PREMISES CONSIDERED, it is hereby recommended that
respondent ATTY. SALVADOR N. MOYA II be SUSPENDED for a
period of ONE YEAR from receipt hereof from the practice of his
profession as a lawyer and as a member of the Bar.
RESPECTFULLY SUBMITTED.[14]
On October 22, 2005, the IBP Board of Governors adopted and
approved with modification the Report and Recommendation of
Commissioner Maala in its Resolution No. XVII-2005-113.
[15]
Respondent was ordered suspended from the practice of law for
two (2) years with a notification that this suspension of two (2) years
must be served in succession to the initial recommendation of the

IBP Board of Suspension of two (2) years in CBD Case No. 03-1171,
thus:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation
of the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex A; and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering respondents violation of
B.P. 22 and for failure and refusal to comply with his obligations,
Atty. Salvador N. Moya is hereby SUSPENDED from the practice of
law for two (2) years, with a notification that this suspension of two
years must be served in succession to the initial recommendation of
the IBP Board of Suspension of two years in CBD Case No. 03-1171.
[16]

On January 12, 2006, respondent through counsel filed with the

Office of the Bar Confidant (OBC) a notice informing it that
respondent is filing an Appeal Memorandum.On the same date,
respondent filed his Appeal Memorandum with the following
assignment of errors:
I
THE BOARD OF GOVERNORS OF THE INTEGRATED BAR OF THE
PHILIPPINES ERRED IN RECOMMENDING RESPONDENTS
SUSPENSION FORM THE PRACTICE OF LAW FOR TWO (2) YEARS
FOR HAVING ALLEGEDLY FAILED TO FILE HIS ANSWER ON THE
COMPLAINT FOR DISBARMENT DESPITE DUE NOTICE.
II
THE BOARD OF GOVERNORS OF THE INTEGRATED BAR OF
THE PHILIPPINES ERRED IN RECOMMENDING RESPONDENTS
SUSPENSION FROM THE PRACTICE OF LAW FOR TWO (2) YEARS

FOR HAVING ALLEGEDLY VIOLATED BATAS PAMBANSA BLG. 22,

OTHERWISE KNOWN AS THE BOUNCING CHECKS LAW.
III
THE BOARD OF GOVERNORS OF THE INTEGRATED BAR OF
THE PHILIPPINES ERRED IN RECOMMENDING RESPONDENTS
SUSPENSION FROM THE PRACTICE OF LAW FOR TWO (2) YEARS
FOR HAVING ALLEGEDLY REFUSED TO SETTLE HIS OBLIGATIONS.
On January 31, 2006, the Court issued a Resolution noting the
aforesaid Notice of Resolution No. XVII-2005-113 dated October
22, 2005 of the IBP.[17]
On various dates,[18] the Court issued Resolutions noting the
following pleadings filed by the respondent:
1. Appeal Memorandum filed on January 12, 2006;
2. Manifestation/Supplement[19] to the Appeal Memorandum With
Motion to Give Due Course To said Pleading More So That The IBP
Had Gone Beyond the Period Provided For By Law To Conduct
Investigation As In The Case of Malonzo v. Principe, 447 SCRA 1.
3. Urgent Manifestation with Motion to Remand the Case to the
IBP-CBD and Treat the Appeal Memorandum as Motion for
Reconsideration to the Resolution of the IBP-CBD filed on
November 3, 2006.
At the outset, respondents Urgent Manifestation with Motion to
Remand the Case to the IBP-CBD and Treat the Appeal
Memorandum as Motion for Reconsideration to the Resolution of
the IBP-CBD, is denied. It is not necessary to remand this case to
the IBP because the latter no longer have jurisdiction over the
case which had already been endorsed to this Court for final
action. Rule 139-B, 12(b) of the Rules of Court provides:
Section 12. Review and decision by the Board of Governors.

Xxx
(b) If the Board, by the vote of a majority of its total membership,
determines that the respondent should be suspended from the
practice of law or disbarred, it shall issue a resolution setting forth
its findings and recommendations which, together with the whole
record of the case, shall forthwith be transmitted to the Supreme
Court for final action.
Regarding the merits of the case, we sustain the findings and
conclusions of Commissioner Villanueva-Maala, as approved,
adopted and modified by the IBP Board of Governors.
Respondent was charged for having failed to pay his debts and for
issuing worthless checks as payment for his loan from
complainant and the latters friends which were incurred at the
time when he was engaged as complainants counsel. He did not
deny the aforesaid allegations but he contended that he
committed neither a violation of the Code of Professional
Responsibility nor any dishonest, immoral or deceitful conduct
because he never denied his debts and he was only unable to pay
them on time due to financial constraints.
Respondents contention is untenable.
Under Sec. 27, Rule 138 of the Rules of Court, 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 admission
to practice, or for a willful disobedience of any lawful order of a
superior court, or for corruptly or willfully appearing as an
attorney for a party to a case without authority to do so. [20]
In Lao v. Medel,[21] we ruled as follows:

Canon 1 of the Code of Professional Responsibility mandates all

members of the Bar to obey the laws of the land and promote
respect for law. Rule 1.01 of the Code specifically provides that [a]
lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. In Co v. Bernardino, [ A.C. No. 3919, January
28, 1998, 285 SCRA 102] the Court considered the issuance of
worthless checks as violation of this Rule and an act constituting
gross misconduct.

The Court finds unmeritorious the justification of the respondent

as to his failure to immediately deliver to the complainant the
payment made by Diwa for the satisfaction of the judgment in
Civil Case No. 1482 of the MTC of Sta. Maria, Bulacan. Respondent
is accused of delay in the delivery of the sum of money due to his
client. His failure to explain such delay cannot be excused by his
bare allegation that the same had already been transmitted to
the complainant.

Moreover, in Cuizon v. Macalino,[22] we also ruled that the issuance

of checks which were later dishonored for having been drawn
against a closed account indicates a lawyers unfitness for the
trust and confidence reposed on him, shows such lack of personal
honesty and good moral character as to render him unworthy of
public confidence, and constitutes a ground for disciplinary
action. Similarly, Sanchez v. Somoso[23] held that the persistent
refusal to settle due obligations despite demand manifests a
lawyers low regard to his commitment to the oath he has taken
when he joined his peers, seriously and irreparably tarnishing the
image of the profession he should, instead, hold in high
esteem. This conduct deserves nothing less than a severe
disciplinary action.

His conduct in the course of the IBP proceedings in this case is

also a matter of serious concern. He submitted a motion to
dismiss after requesting several extensions of time to file his
answer. His failure to attend the hearings and belated plea to
dismiss the case, despite orders to the contrary, show a callous
disregard of the lawful orders of the duly constituted authority,
which caused undue delay in the IBP proceeding. This conduct
runs counter to the precepts of the Code of Professional
Responsibility[24] and violates the lawyers oath which imposes
upon every member of the bar the duty to delay no man for
money or malice. Respondent has failed to live up to the values
and norms of the legal profession as embodied in the Code of
Professional Responsibility.

Clearly, therefore, the act of a lawyer in issuing a check without

sufficient funds to cover the same constitutes such willful
dishonesty and immoral conduct as to undermine the public
confidence in the legal profession. He cannot justify his act of
issuing worthless checks by his dire financial
condition. Respondent should not have contracted debts which
are beyond his financial capacity to pay. If he suffered a reversal
of fortune, he should have explained with particularity the
circumstances which caused his failure to meet his
obligations. His generalized and unsubstantiated allegations as to
why he reneged in the payment of his debts promptly despite
repeated demands and sufficient time afforded him cannot
withstand scrutiny.

We stress that membership in the legal profession is a privilege

burdened with conditions. Adherence to the rigid standards of
mental fitness, maintenance of the highest degree of morality
and faithful compliance with the Rules of the Legal Profession are
the conditions required for remaining a member of good standing
of the bar and for enjoying the privilege to practice law. The
Supreme Court, as guardian of the legal profession, has ultimate
disciplinary power over attorneys. This authority to discipline its
members is not only a right but a bounden duty as well. [25] Sadly,
herein respondents conduct falls short of the exacting standards
expected of him as a member of the legal profession. Accordingly,
administrative sanction is warranted by respondents gross
misconduct.

We come now to the penalty imposable in this

case. In Co v. Bernardino[26] and Lao v. Medel[27] we held that the
deliberate failure to pay just debts and the issuance of worthless
checks constitute gross misconduct, for which a lawyer may be
sanctioned with one-year suspension from the practice of law.
However, in this case, we deem it reasonable to affirm the
sanction imposed by the IBP-CBD, i.e., respondent was ordered
suspended from the practice of law for two (2) years, because
aside from issuing worthless checks and failure to pay his debts,
respondent also had seriously breached his clients trust and
confidence to his personal advantage and had shown a wanton
disregard of the IBPs Orders in the course of its proceedings.
WHEREFORE, Resolution No. XVII-2005-113 dated October 22,
2005 of the IBP which found that respondent Atty. Salvador N.
Moya II is guilty of gross misconduct and violation of the Code of
Professional Responsibility is AFFIRMED in toto. He is
hereby SUSPENDED for two years from the practice of law,
effective upon his receipt of this Decision. He is warned that a
repetition of the same or a similar act will be dealt with more
severely.
Let copies of this Decision be served on the Court Administrator
who shall circulate it to all courts for their information and
guidance as well as the Office of the Bar Confidant, which is
directed to append a copy to respondents personal record. Let
another copy be furnished the National Office of the Integrated
Bar of the Philippines.
SO ORDERED.

SELWYN F. LAO, complainant,

MEDEL, respondent.

vs. ATTY.

ROBERT

W.

DECISION
PANGANIBAN, J.:
The deliberate failure to pay just debts and the issuance of
worthless checks constitute gross misconduct, for which a lawyer
may be sanctioned with one-year suspension from the practice of
law.
The Case and the Facts
This administrative case stems from a ComplaintAffidavit[1] filed with the Integrated Bar of the PhilippinesCommission on Bar Discipline (IBP-CBD) by Selwyn F. Lao. Atty.
Robert W. Medel was charged therein with dishonesty, grave
misconduct and conduct unbecoming an attorney.
The material averments of the Complaint are summarized by
the IBP-CBD in this wise:
The Complaint arose from the [respondents] persistent refusal to
make good on four (4) RCBC checks totaling [t]wenty [t]wo
[t]housand (P22,000.00) [p]esos. These dishonored checks were
issued by defendant in replacement for previous checks issued to
the complainant. Based on the exchange of letters between the
parties, it appears that [respondent], in a letter dated June 19,
2001, had committed to forthwith effect immediate settlement of
my outstanding obligation of P22,000.00 with Engr. Lao, at the
earliest possible time, preferably, on or before the end of June
2000. Again, in a letter dated July 3, 2000, the [respondent] made
a request for a final extension of only ten (10) days from June 30,
2000 (or not later than July 10, 2000), within which to effect
payment of P22,000.00 to Engr. Lao. Needless to say, the

initiation of this present complaint proves that contrary to his

written promises, Atty. Medel never made good on his dishonored
checks. Neither has he paid his indebtedness. [2]
In his Answer[3] dated July 30, 2001, Atty. Medel reasons that
because all of his proposals to settle his obligation were rejected,
he was unable to comply with his promise to pay
complainant. Respondent maintains that the Complaint did not
constitute a valid ground for disciplinary action because of the
following:
(a). Under Sec. 27, Rule 138 of the Rules, 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 admission
to practice, or for a wil[l]ful disobedience of any lawful order of a
superior court, or for corruptly or wil[l]fully appearing as an
attorney for a party to case without authority so to do. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice;

(a.1). Applying the afore-cited legal provision to the facts

obtaining in the present case, it is clear that the offense with
which the respondent is being charged by the complainant, is
merely a violation of Batas Pambansa Bilang 22 (B.P. 22, for
brevity), which is a special law, and is not punishable under the
Revised Penal Code (RPC, for brevity). It is self-evident therefore,
that the offense is not in the same category as a violation of
Article 315, paragraph 2, (d), RPC, which is issuing a post-dated
check or a check in payment of an obligation, with insufficient
funds in the drawee bank, through false pretenses or fraudulent
acts, executed prior to or simultaneously with the commission of
the fraud, which is a crime involving moral turpitude;
(b). If the respondent is to be disciplined by the Supreme Court,
under Sec. 27, Rule 138 of the Rules, for the issuance of a
worthless check, in violation of B.P. 22, for payment of a preexisting obligation to the complainant, then, verily, the said Rule
138, Sec. 27, would be a cruel and an unjust law, which the
Honorable Supreme Court would not countenance;
(c). A careful examination of the specific grounds enumerated, for
disbarment or suspension of a member of the Bar, under Sec. 27
of Rule 138 of the Rules, clearly shows beyond a shadow of doubt
that the alleged issuance of a worthless check, in violation of B.P.
22, is NOT one of the grounds for disciplinary action against a
member of the Bar, to warrant his disbarment or suspension from
his office as attorney, by the Supreme Court; and
(d). The issuance of a worthless check by a member of the Bar, in
violation of B.P. 22, does NOT constitute dishonest, immoral or
deceitful conduct, under Canon 1 and Rule 1.01 of the Code of
Professional Responsibility. This is because, the door to the law
profession swings on reluctant hinges. Stated otherwise, unless
there is a clear, palpable and unmitigated immoral or deceitful
conduct, of a member of the Bar, in violation of his oath as an

attorney, by the mere issuance of a worthless check, in violation

of B.P. 22, the Supreme Court is inclined to give the said attorney,
the benefit of the doubt.[4]
On August 22, 2001, complainant submitted his Reply.
Thereafter, IBP-CBD Commissioner Renato G. Cunanan, to
whom the case was assigned by the IBP for investigation and
report, scheduled the case for hearing on October 4, 2001. After
several cancellations, the parties finally met on May 29, 2002. In
that hearing, respondent acknowledged his obligation and
committed himself to pay a total of P42,000 (P22,000 for his
principal debt and P20,000 for attorneys fees). Complainant
agreed to give him until July 4, 2002 to settle the principal debt
and to discuss the plan of payment for attorneys fees in the next
hearing.
[5]

beyond cavil that indeed, [the latter] committed not one (1) but
four counts of violation of BP 22. [8] The refusal [by respondent] to
pay his indebtedness, his broken promises, his arrogant attitude
towards complainants counsel and the [commission sufficiently]
warrant the imposition of sanctions against him. [9] Thus, the
investigating commissioner recommended that respondent be
suspended from the practice of law.
In Resolution No. XV-2002-598,[10] the Board of Governors of
the IBP adopted the Report and Recommendation of
Commissioner Cunanan and resolved to suspend respondent from
the practice of law for two years. The Resolution, together with
the records of the case, was transmitted to this Court for final
action, pursuant to Rule 139-B Sec. 12(b).
The Courts Ruling

On July 4, 2002, both parties appeared before the IBP-CBD for

their scheduled hearing. But, while waiting for the case to be
called, respondent suddenly insisted on leaving, supposedly to
attend to a family emergency. Complainants counsel objected and
Commissioner Cunanan, who was still conducting a hearing in
another case, ordered him to wait. He, however, retorted in a loud
voice, Its up to you, this is only disbarment, my family is more
important.[6] And, despite the objection and the warning, he
arrogantly left. He made no effort to comply with his undertaking
to settle his indebtedness before leaving.

We agree with the findings and recommendation of the IBP

Board of Governors, but reduce the period of suspension to one
year.
Administrative Liability of Respondent

Report and Recommendation of the IBP

Lawyers are instruments for the administration of justice. As

vanguards of our legal system, they are expected to maintain not
only legal proficiency but also a high standard of morality,
honesty, integrity and fair dealing. [11] In so doing, the peoples
faith and confidence in the judicial system is ensured.

In his September 19, 2002 Report, [7] Commissioner Cunanan

found respondent guilty of violating the attorneys oath and the
Code of Professional Responsibility. The former explained that,
contrary to the latters claim, violation of BP 22 was a crime that
involved moral turpitude. Further, he observed that [w]hile no
criminal case may have been instituted against [respondent], it is

In the present case, respondent has been brought to this

Court for failure to pay his debts and for issuing worthless checks
as payment for his loan from complainant. While acknowledging
the fact that he issued several worthless checks, he contends that
such act constitutes neither a violation of the Code of Professional
Responsibility; nor dishonest, immoral or deceitful conduct.

The defense proffered by respondent is untenable. It is

evident from the records that he made several promises to pay
his debt promptly. However, he reneged on his obligation despite
sufficient time afforded him. Worse, he refused to recognize any
wrongdoing and transferred the blame to complainant, on the
contorted reasoning that the latter had refused to accept the
formers plan of payment. It must be pointed out that complainant
had no obligation to accept it, considering respondents previous
failure to comply with earlier payment plans for the same debt.
Moreover, before the IBP-CBD, respondent had voluntarily
committed himself to the payment of his debts, yet failed again to
fulfill his promise. That he had no real intention to settle them is
evident from his unremitting failed commitments. His cavalier
attitude in incurring debts without any intention of paying for
them puts his moral character in serious doubt.
Verily, lawyers must at all times faithfully perform their duties
to society, to the bar, to the courts and to their clients. As part of
those duties, they must promptly pay their financial
obligations. Their conduct must always reflect the values and
norms of the legal profession as embodied in the Code of
Professional Responsibility. On these considerations, the Court
may disbar or suspend lawyers for any professional or private
misconduct showing them to be wanting in moral character,
honesty, probity and good demeanor -- or to be unworthy to
continue as officers of the Court.[12]
It is equally disturbing that respondent remorselessly issued a
series of worthless checks, unmindful of the deleterious effects of
such act to public interest and public order. [13]
Canon 1 of the Code of Professional Responsibility mandates
all members of the bar to obey the laws of the land and promote
respect for law. Rule 1.01 of the Code specifically provides that [a]

lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct. In Co v. Bernardino,[14] the Court considered the
issuance of worthless checks as a violation of this Rule and an act
constituting gross misconduct. It explained thus:
The general rule is that a lawyer may not be suspended or
disbarred, and the court may not ordinarily assume jurisdiction to
discipline him for misconduct in his non-professional or private
capacity (In Re Pelaez, 44 Phil. 5569 [1923]). Where, however, the
misconduct outside of the lawyer's professional dealings is so
gross a character as to show him morally unfit for the office and
unworthy of the privilege which his licenses and the law confer on
him, the court may be justified in suspending or removing him
from the office of attorney (In Re Sotto, 38 Phil. 569 [1923]).
The evidence on record clearly shows respondent's propensity to
issue bad checks. This gross misconduct on his part, though not
related to his professional duties as a member of the bar, puts his
moral character in serious doubt. The Commission, however, does
not find him a hopeless case in the light of the fact that he
eventually paid his obligation to the complainant, albeit very
much delayed.
While it is true that there was no attorney-client relationship
between complainant and respondent as the transaction between
them did not require the professional legal services of
respondent, nevertheless respondent's abject conduct merits
condemnation from this Court.
As early as 1923, however, the Court laid down in In Re Vicente
Pelaez [44 Phil.567 (1923)] the principle that it can exercise its
power to discipline lawyers for causes which do not involve the
relationship of an attorney and client x x x In disciplining the
respondent, Mr. Justice Malcolm said: x x x As a general rule, a
court will not assume jurisdiction to discipline one of its officers

for misconduct alleged to have been committed in his private

capacity. But this is a general rule with many exceptions x x
x. The nature of the office, the trust relation which exists between
attorney and client, as well as between court and attorney, and
the statutory rules prescribing the qualifications of attorneys,
uniformly require that an attorney shall be a person of good moral
character. If that qualification is a condition precedent to a license
or privilege to enter upon the practice of the law, it would seem
to be equally essential during the continuance of the practice and
the exercise of the privilege.So it is held that an attorney will be
removed not only for malpractice and dishonesty in his
profession, but also for gross misconduct not connected with his
professional duties, which shows him to be unfit for the office and
unworthy of the privileges which his license and the law confer
upon him x x x.
Ten years later, in Piatt v. Abordo where the erring lawyer was
suspended for one year from the practice of law for attempting to
engage in an opium deal, Justice Malcolm reiterated that an
attorney may be removed not only for malpractice and dishonesty
in his profession, but also for gross misconduct not related to his
professional duties which show him to be an unfit and unworthy
lawyer. The courts are not curators of the morals of the bar. At the
same time the profession is not compelled to harbor all persons
whatever their character, who are fortunate enough to keep out
of prison. As good character is an essential qualification for
admission of an attorney to practice, when the attorney's
character is bad in such respects as to show that he is unsafe and
unfit to be entrusted with the powers of an attorney, the courts
retain the power to discipline him x x x Of all classes and
professions, the lawyer is most sacredly bound to uphold the law
x x x and to that doctrine we give our unqualified support."
We likewise take notice of the high-handed manner in which
respondent dealt with Commissioner Cunanan during the July 4,

2002 hearing, when the former was expected to settle his

obligation with complainant. We cannot countenance the
discourtesy of respondent. He should be reminded that the IBP
has disciplinary authority over him by virtue of his membership
therein.[15]
Thus, it was imperative for him to respect the authority of the
officer assigned to investigate his case. Assuming that he had a
very important personal matter to attend to, he could have
politely explained his predicament to the investigating
commissioner
and
asked
permission
to
leave
immediately. Unfortunately, the former showed dismal behavior
by raising his voice and leaving without the consent of
complainant and the investigating commissioner.
We stress that membership in the legal profession is a
privilege.[16] It demands a high degree of good moral character,
not only as a condition precedent to admission, but also as a
continuing requirement for the practice of law. [17] In this case,
respondent fell short of the exacting standards expected of him
as a guardian of law and justice.[18]
Accordingly, administrative sanction is warranted by his gross
misconduct. The IBP Board of Governors recommended that he be
suspended from the practice of law for two years.However, in line
with Co v. Bernardino,[19] Ducat
Jr. v. Villalon
Jr.
[20]
[21]
and Saburnido v. Madroo
-- which also involved gross
misconduct of lawyers -- we find the suspension of one year
sufficient in this case.
WHEREFORE, Atty. Robert W. Medel is found guilty of gross
misconduct and is hereby SUSPENDED for one year from the
practice of law, effective upon his receipt of this Decision.He is
warned that a repetition of the same or a similar act will be dealt
with more severely.

Let copies of this Decision be entered in the record of

respondent and served on the IBP, as well as on the court
administrator who shall circulate it to all courts for their
information and guidance.
SO ORDERED.

CYNTHIA ADVINCULA vs. ATTY.

ERNESTO M. MACABATA A.C.
No. 7204 March 7, 2007
RESOLUTION
CHICO-NAZARIO, J.:
Before Us is a complaint1 for
disbarment filed by Cynthia
Advincula against respondent Atty.
Ernesto M. Macabata, charging the
latter with Gross Immorality.

Sent by complainant
At 5:33:46 pm

- forget the case. I decided to refer it with

other lawyer

replied by respondent
at 6:16:11 pm

- "does this mean I can not c u anymore"

(Does this mean I cannot see you
anymore)

sent by complainant
at 6:17:59 pm

- I feel bad. I cant expect that u will take

advantage of the situation.

Follow-up message
Sent by complainant
At 6:29:30 pm

- wrong to kiss a girl especially in the lips if

you dont have relationship with her.

Replied by respondent
At 6:32:43 pm

- "Im veri sri. Its not tking advantage of the

situation, 2 put it rightly it s an expression of
feeling. S sri" (Im very sorry. Its not taking
advantage of the situation, to put it rightly it
is an expression of feeling)

Complainant alleged the following:

Sometime on 1st week of
December 2004 complainant
Follow up message
[Cynthia Advincula] seek the legal
by respondent
advice of the respondent [Atty.
at 6:42:25 pm
Macabata], regarding her
collectibles from Queensway
Travel and Tours. As promised, he sent Demand Letter dated
December 11, 2004 (copy attached as Annex "I") to the
concerned parties.

- Im s sri. Il not do it again. Wil u stil c me s I

can show u my sincerity" (Im so sorry. Ill not
do it again. Will you still see me so I can show
you my sincerity)

On February 10, 2005, met (sic) at Zensho Restaurant in Tomas

Morato, Quezon City to discuss the possibility of filing the
complaint against Queensway Travel and Tours because they did
not settle their accounts as demanded. After the dinner,
respondent sent complainant home and while she is about to step
out of the car, respondent hold (sic) her arm and kissed her on
the cheek and embraced her very tightly.
Again, on March 6, 2005, at about past 10:00 in the morning, she
met respondent at Starbucks coffee shop in West Avenue, Quezon
City to finalize the draft of the complaint to be filed in Court. After
the meeting, respondent offered again a ride, which he usually
did every time they met. Along the way, complainant was

wandering (sic) why she

felt so sleepy where in
fact she just got up from
bed a few hours ago. At
along Roosevelt Avenue
immediately after corner
of Felipe St., in San
Francisco Del Monte,
Quezon City when she
was almost restless
respondent stopped his
car and forcefully hold
(sic) her face and kissed
her lips while the other
hand was holding her
breast. Complainant even
in a state of shocked (sic)
succeeded in resisting his
criminal attempt and
immediately manage (sic)
to go (sic) out of the car.

In the late afternoon,

complainant sent a text message to respondent informing him
that she decided to refer the case with another lawyer and needs
(sic) to get back the case folder from him. The communications
transpired was recorded in her cellular phone and read as follows:
On the following day, March 7, 2005 respondent sent another
message to complainant at 3:55:32 pm saying "I dont know wat
2 do s u may 4give me. "Im realy sri. Puede bati na tyo." (I dont
know what to do so you may forgive me. Im really sorry. Puede
bati na tayo).
Respondent replied "talk to my lawyer in due time." Then another
message was received by her at 4:06:33 pm saying "Ano k ba. Im
really sri. Pls. Nxt ime bhave n me." (Ano ka ba. Im really sorry.
Please next time behave na ko), which is a clear manifestation of
admission of guilt.2

In his answer,3 respondent admitted that he agreed to provide

legal services to the complainant; that he met with complainant
on 10 February 2005 and 6 March 2005, to discuss the relevant
matters relative to the case which complainant was intending to
file against the owners of Queensway Travel and Tours for
collection of a sum of money; that on both occasions,
complainant rode with him in his car where he held and kissed
complainant on the lips as the former offered her lips to him; and,
that the corner of Cooper Street and Roosevelt Avenue, where he
dropped off the complainant, was a busy street teeming with
people, thus, it would have been impossible to commit the acts
imputed to him.
By way of defense, respondent further elucidated that: 1) there
was a criminal case for Acts of Lasciviousness filed by
complainant against respondent pending before the Office of the
City Prosecutor in Quezon City; 2) the legal name of complainant
is Cynthia Advincula Toriana since she remains married to a
certain Jinky Toriana because the civil case for the nullification of
their marriage was archived pursuant to the Order dated 6
December 2000 issued by the Regional Trial Court of Maburao,
Occidental Mindoro; 3) the complainant was living with a man not
her husband; and 4) the complainant never bothered to discuss
respondents fees and it was respondent who always paid for
their bills every time they met and ate at a restaurant.
A hearing was conducted by the Commission on Bar Discipline of
the Integrated Bar of the Philippines (IBP) at the IBP Building,
Ortigas Center, Pasig City, on 26 July 2005.
On 30 September 2005, Investigating Commissioner Dennis A. B.
Funa submitted his Report and Recommendation, 4 recommending
the imposition of the penalty of one (1) month suspension on
respondent for violation of the Code of Professional Responsibility.
Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20
March 2006, approving and adopting, with modification, the
recommendation of the Investigating Commissioner, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record and
the applicable laws and rules, and considering the behavior of
Respondent went beyond the norms of conduct required of a
lawyer when dealing with or relating with a client, Atty. Ernesto A.
Macabata is SUSPENDED from the practice of law for three (3)
months.5
The issue to be resolved in this case is: whether respondent
committed acts that are grossly immoral or which constitute
serious moral depravity that would warrant his disbarment or
suspension from the practice of law.
Simple as the facts of the case may be, the manner by which we
deal with respondents actuations shall have a rippling effect on
how the standard norms of our legal practitioners should be
defined. Perhaps morality in our liberal society today is a far cry
from what it used to be. This permissiveness notwithstanding,
lawyers, as keepers of public faith, are burdened with a high
degree of social responsibility and, hence, must handle their
personal affairs with greater caution.
The Code of Professional Responsibility provides:
CANON I x x x
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
CANON 7-- A lawyer shall at all times uphold the integrity and
dignity of the legal profession and support the activities of the
Integrated Bar.
xxxx
Rule 7.03-- A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor shall he, whether in

public or private life, behave in a scandalous manner to the

discredit of the legal profession.
As may be gleaned from above, the Code of Professional
Responsibility forbids lawyers from engaging in unlawful,
dishonest, immoral or deceitful conduct.
Lawyers have been repeatedly reminded that their possession of
good moral character is a continuing condition to preserve their
membership in the Bar in good standing. The continued
possession of good moral character is a requisite condition for
remaining in the practice of law. 6 In Aldovino v. Pujalte, Jr.,7 we
emphasized that:
This Court has been exacting in its demand for integrity and good
moral character of members of the Bar. They are expected at all
times to uphold the integrity and dignity of the legal profession
and refrain from any act or omission which might lessen the trust
and confidence reposed by the public in the fidelity, honesty, and
integrity of the legal profession. Membership in the legal
profession is a privilege. And whenever it is made to appear that
an attorney is no longer worthy of the trust and confidence of the
public, it becomes not only the right but also the duty of this
Court, which made him one of its officers and gave him the
privilege of ministering within its Bar, to withdraw the privilege.
It is the bounden duty of lawyers to adhere unwaveringly to the
highest standards of morality. The legal profession exacts from its
members nothing less. Lawyers are called upon to safeguard the
integrity of the Bar, free from misdeeds and acts constitutive of
malpractice. Their exalted positions as officers of the court
demand no less than the highest degree of morality. 8 We
explained in Barrientos v. Daarol9 that, "as officers of the court,
lawyers must not only in fact be of good moral character but must
also be seen to be of good moral character and leading lives in
accordance with the highest moral standards of the community."
Lawyers are expected to abide by the tenets of morality, not only
upon admission to the Bar but also throughout their legal career,
in order to maintain their good standing in this exclusive and

honored fraternity. They may be suspended from the practice of

law or disbarred for any misconduct, even if it pertains to his
private activities, as long as it shows him to be wanting in moral
character, honesty, probity or good demeanor. 10
In Bar Matter No. 1154,11 good moral character was defined as
what a person really is, as distinguished from good reputation, or
from the opinion generally entertained of him, or the estimate in
which he is held by the public in the place where he is known.
Moral character is not a subjective term but one which
corresponds to objective reality.
It should be noted that the requirement of good moral character
has four ostensible purposes, namely: (1) to protect the public; (2)
to protect the public image of lawyers; (3) to protect prospective
clients; and (4) to protect errant lawyers from themselves. 12
In the case at bar, respondent admitted kissing complainant on
the lips.
In his Answer,13 respondent confessed, thus:
27. When she was about to get off the car, I said can I kiss you
goodnight. She offered her left cheek and I kissed it and with my
left hand slightly pulled her right face towards me and kissed her
gently on the lips. We said goodnight and she got off the car.
xxxx
35. When I stopped my car I said okay. I saw her offered (sic) her
left cheek and I lightly kissed it and with my right hand slightly
pulled her right cheek towards me and plant (sic) a light kiss on
her lips. There was no force used. No intimidation made, no lewd
designs displayed. No breast holding was done. Everything
happened very spontaneously with no reaction from her except
saying "sexual harassment."
During the hearing held on 26 July 2005 at the 3rd floor, IBP
Building, Dona Julia Vargas Avenue, Ortigas City, respondent
candidly recalled the following events:

ATTY. MACABATA:

Pardon?

That time in February, we met I fetched her I should say,

somewhere along the corner of Edsa and Kamuning because it
was then raining so we are texting each other. So I parked my car
somewhere along the corner of Edsa and Kamuning and I was
there about ten to fifteen minutes then she arrived. And so I said
she opened my car and then she went inside so I said, would
you like that we have a Japanese dinner? And she said yes, okay.
So I brought her to Zensho which is along Tomas Morato. When
we were there, we discussed about her case, we ordered food and
then a little while I told her, would it be okay for you of I (sic)
order wine? She said yes so I ordered two glasses of red wine.
After that, after discussing matters about her case, so I said its
about 9:00 or beyond that time already, so I said okay, lets go.
So when I said lets go so I stood up and then I went to the car. I
went ahead of my car and she followed me then she rode on (sic)
it. So I told her where to? She told me just drop me at the same
place where you have been dropping me for the last meetings
that we had and that was at the corner of Morato and Roosevelt
Avenue. So, before she went down, I told her can I kiss you
goodnight? She offered her left cheek and I kissed it and with the
slight use of my right hand, I ... should I say tilted her face
towards me and when shes already facing me I lightly kissed her
on the lips. And then I said good night. She went down the car,
thats it.

ATTY. MACABATA:

COMM. FUNA:
February 10 iyan

I saw her offered her left cheek like that, so I kissed her again and
then with the use of my left hand, pushed a little bit her face and
then kissed her again softly on the lips and thats it. x x
x.14 (Emphases supplied.)
It is difficult to state with precision and to fix an inflexible
standard as to what is "grossly immoral conduct" or to specify the
moral delinquency and obliquity which render a lawyer unworthy
of continuing as a member of the bar. The rule implies that what
appears to be unconventional behavior to the straight-laced may
not be the immoral conduct that warrants disbarment. 15
In Zaguirre v. Castillo,16 we reiterated the definition of immoral
conduct, as such conduct which is so willful, flagrant, or
shameless as to show indifference to the opinion of good and
respectable members of the community. Furthermore, for such
conduct to warrant disciplinary action, the same must not simply
be immoral, but grossly immoral. It must be so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible
to a high degree or committed under such scandalous or revolting
circumstances as to shock the common sense of decency.
The following cases were considered by this Court as constitutive
of grossly immoral conduct:

ATTY. MACABATA:

In Toledo v. Toledo,17 a lawyer was disbarred from the practice of

law, when he abandoned his lawful wife and cohabited with
another woman who had borne him a child.

Okay. After that were through so I said lets go because I have an

appointment. So we went out, we went inside my car and I said
where to? Same place, she said, so then at the same corner. So
before she went down , before she opened the door of the car, I
saw her offered her left cheek. So I kissed her again.

In Obusan v. Obusan, Jr.,18 a lawyer was disbarred after

complainant proved that he had abandoned her and maintained
an adulterous relationship with a married woman. This court
declared that respondent failed to maintain the highest degree of
morality expected and required of a member of the bar.

COMM. FUNA:

In Dantes v. Dantes,19 respondents act of engaging in illicit

relationships with two different women during the subsistence of
his marriage to the complainant constitutes grossly immoral
conduct warranting the imposition of appropriate sanctions.
Complainants testimony, taken in conjunction with the
documentary evidence, sufficiently established that respondent
breached the high and exacting moral standards set for members
of the law profession.
In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral
of respondent, a married man with children, to have taken
advantage of his position as chairman of the college of medicine
in asking complainant, a student in said college, to go with him to
Manila where he had carnal knowledge of her under the threat
that she would flank in all her subjects in case she refused.
In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred
when he abandoned his lawful wife and three children, lured an
innocent woman into marrying him and misrepresented himself
as a "bachelor" so he could contract marriage in a foreign land.
In Macarrubo v. Macarrubo,22 respondent entered into multiple
marriages and then resorted to legal remedies to sever them.
There, we ruled that "[s]uch pattern of misconduct by respondent
undermines the institutions of marriage and family, institutions
that this society looks to for the rearing of our children, for the
development of values essential to the survival and well-being of
our communities, and for the strengthening of our nation as a
whole." As such, "there can be no other fate that awaits
respondent than to be disbarred."
In Tucay v. Tucay,23 respondent contracted marriage with another
married woman and left complainant with whom he has been
married for thirty years. We ruled that such acts constitute "a
grossly immoral conduct and only indicative of an extremely low
regard for the fundamental ethics of his profession," warranting
respondents disbarment.
In Villasanta v. Peralta,24 respondent married complainant while
his first wife was still alive, their marriage still valid and

subsisting. We held that "the act of respondent of contracting the

second marriage is contrary to honesty, justice, decency and
morality." Thus, lacking the good moral character required by the
Rules of Court, respondent was disqualified from being admitted
to the bar.
In Cabrera v. Agustin,25 respondent lured an innocent woman into
a simulated marriage and thereafter satisfied his lust. We held
that respondent failed to maintain that degree of morality and
integrity which, at all times, is expected of members of the bar.
He is, therefore, disbarred from the practice of law.
Immorality has not been confined to sexual matters, but includes
conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of
respectable members of the community, and an inconsiderate
attitude toward good order and public welfare. 26
Guided by the definitions above, we perceived acts of kissing or
beso-beso on the cheeks as mere gestures of friendship and
camaraderie,27 forms of greetings, casual and customary. The acts
of respondent, though, in turning the head of complainant
towards him and kissing her on the lips are distasteful. However,
such act, even if considered offensive and undesirable, cannot be
considered grossly immoral.
Complainants bare allegation that respondent made use and took
advantage of his position as a lawyer to lure her to agree to have
sexual relations with him, deserves no credit. The burden of proof
rests on the complainant, and she must establish the case against
the respondent by clear, convincing and satisfactory
proof,28 disclosing a case that is free from doubt as to compel the
exercise by the Court of its disciplinary power. 29 Thus, the adage
that "he who asserts not he who denies, must prove." 30 As a basic
rule in evidence, the burden of proof lies on the party who makes
the allegationsei incumbit probation, qui decit, non qui negat;
cum per rerum naturam factum negantis probation nulla sit. 31 In
the case at bar, complainant miserably failed to comply with the
burden of proof required of her. A mere charge or allegation of

wrongdoing does not suffice. Accusation is not synonymous with

guilt.32

court, to his client, to his brethren in the profession and to the

public.

Moreover, while respondent admitted having kissed complainant

on the lips, the same was not motivated by malice. We come to
this conclusion because right after the complainant expressed her
annoyance at being kissed by the respondent through a cellular
phone text message, respondent immediately extended an
apology to complainant also via cellular phone text message. The
exchange of text messages between complainant and respondent
bears this out.

The power to disbar or suspend ought always to be exercised on

the preservative and not on the vindictive principle, with great
caution and only for the most weighty reasons and only on clear
cases of misconduct which seriously affect the standing and
character of the lawyer as an officer of the court and member of
the Bar. Only those acts which cause loss of moral character
should merit disbarment or suspension, while those acts which
neither affect nor erode the moral character of the lawyer should
only justify a lesser sanction unless they are of such nature and to
such extent as to clearly show the lawyers unfitness to continue
in the practice of law. The dubious character of the act charged as
well as the motivation which induced the lawyer to commit it
must be clearly demonstrated before suspension or disbarment is
meted out. The mitigating or aggravating circumstances that
attended the commission of the offense should also be
considered.36

Be it noted also that the incident happened in a place where there

were several people in the vicinity considering that Roosevelt
Avenue is a major jeepney route for 24 hours. If respondent truly
had malicious designs on complainant, he could have brought her
to a private place or a more remote place where he could freely
accomplish the same.
All told, as shown by the above circumstances, respondents acts
are not grossly immoral nor highly reprehensible to warrant
disbarment or suspension.
The question as to what disciplinary sanction should be imposed
against a lawyer found guilty of misconduct requires
consideration of a number of factors. 33 When deciding upon the
appropriate sanction, the Court must consider that the primary
purposes of disciplinary proceedings are to protect the public; to
foster public confidence in the Bar; to preserve the integrity of
the profession; and to deter other lawyers from similar
misconduct.34 Disciplinary proceedings are means of protecting
the administration of justice by requiring those who carry out this
important function to be competent, honorable and reliable men
in whom courts and clients may repose confidence. 35 While it is
discretionary upon the Court to impose a particular sanction that
it may deem proper against an erring lawyer, it should neither be
arbitrary and despotic nor motivated by personal animosity or
prejudice, but should ever be controlled by the imperative need
to scrupulously guard the purity and independence of the bar and
to exact from the lawyer strict compliance with his duties to the

Censure or reprimand is usually meted out for an isolated act of

misconduct of a lesser nature. It is also imposed for some minor
infraction of the lawyers duty to the court or the client. 37 In the
Matter of Darell Adams,38 a lawyer was publicly reprimanded for
grabbing a female client, kissing her, and raising her blouse which
constituted illegal conduct involving moral turpitude and conduct
which adversely reflected on his fitness to practice law.
Based on the circumstances of the case as discussed and
considering that this is respondents first offense, reprimand
would suffice.
We laud complainants effort to seek redress for what she
honestly believed to be an affront to her honor. Surely, it was
difficult and agonizing on her part to come out in the open and
accuse her lawyer of gross immoral conduct. However, her own
assessment of the incidents is highly subjective and partial, and
surely needs to be corroborated or supported by more objective
evidence.

WHEREFORE, the complaint for disbarment against respondent

Atty. Ernesto Macabata, for alleged immorality, is hereby
DISMISSED. However, respondent is hereby REPRIMANDED to be
more prudent and cautious in his dealing with his clients with a
STERN WARNING that a more severe sanction will be imposed on
him for any repetition of the same or similar offense in the future.
SO ORDERED.

Fidela VDA, De Enriquez vs. Atty. Manuel G. San Jose AC

3569 Feb. 23, 2007
This is an administrative complaint [1] for disbarment filed by
Fidela Vda. De Enriquez against respondent Atty. Manuel G. San
Jose for gross negligence.Complainant alleged that on August 28,
1989, she hired the services of respondent Atty. San Jose for the
purpose of filing an unlawful detainer case against
one Rugerio Alipante, who defaulted in the payment of monthly
rentals on complainants property in Taban, Libmanan,
Camarines Sur. According to the complainant, respondent failed
to file the appropriate civil case, despite payment to him
of P2,000 attorneys fees, so she decided to withdraw the case
from respondent. She demanded the return of the pertinent
documents but despite repeated demands, respondent refused
and failed to return the documents. As a result, the action for
unlawful detainer prescribed. Complainant alleged further, that
her daughter who worked for respondent was not paid her
salary. Complainant prayed that Atty. San Jose be disbarred or
suspended from the practice of law.

In his Comment,[2] respondent denied being negligent. He alleged

that he received a letter from the complainant informing him that
the lessee had already agreed to vacate the premises, and thus,
the
filing
of
an
unlawful detainer case
had
become
unnecessary. Respondent also explained that he did not file the
case even before receiving complainants letter because there was
a vacancy in the sala of the Municipal Circuit Trial Court (MCTC)
of Libmanan-Cabusao, Camarines Sur. He
claimed
that
he
informed complainant that the case could not be filed until a new
judge was appointed, but he promised to file the case before the
action prescribed. Respondent claimed further that the attorneys
fee was P3,000 and that he had paid complainants daughter P700
per month.
The Court referred[3] the case to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation by
the IBP-Commission on Bar Discipline (CBD). The investigating
officer found that respondent was indeed remiss in the
performance of his professional duties as counsel. According to
Commissioner Julio C. Elamparo, the only complete work
respondent rendered to his client was sending a demand letter for
the lessee to vacate the subject premises within ten days from
receipt of the demand letter. The Commissioner also found
respondents explanation for his failure to file the case
unsatisfactory and concluded that respondent was guilty of
negligence in the performance of his duty as a lawyer for
abandonment
of
his
clients
cause. The
Commissioner
recommended that respondent be suspended from the practice of
law for three months.[4]
The IBP Board of Governors adopted the report and
recommendation of the Commissioner finding respondent liable

for negligence but only imposed the penalty of one-month

suspension from the practice of law.[5]
On December 17, 1997, respondent filed a petition seeking the
dismissal of the case against him and prayed that he be
exonerated. He denied being negligent. He claimed that the IBP
Board of Governors misinterpreted the complainants letter, which
stated that the complainant and her lessee came to an
agreement for the latter to vacate the leased premises.He
claimed that he relied on that letter thereby negating the
necessity of further filing a case for unlawful detainer.
In our Resolution, dated December 6, 1999, we resolved to
remand the case to the IBP which, in turn, assigned the case to
the
IBP-CBD
for
further
investigation.The
Investigating
Commissioner in her report, dated August 5, 2004, recommended
that the petition be dismissed for lack of merit. Said
recommendation was adopted by the IBP, which passed a
resolution to that effect, and approved by the IBP Board of
Governors on October 7, 2004.After a thorough review of the
records in this matter, we are in agreement with the IBP that
respondent Atty. San Jose be held liable for negligence; thus, his
petition for exoneration should be denied for utter lack of merit.

The Code of Professional Responsibility in Rule 18.03 enjoins a

lawyer not to neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable. [6] A
lawyer engaged to represent a client in a case bears the
responsibility of protecting the latters interest with utmost
diligence. It is the duty of a lawyer to serve his client with
competence and diligence and he should exert his best efforts to
protect, within the bounds of the law, the interest of his client. It is
not enough that a practitioner is qualified to handle a legal matter;
he is also required to prepare adequately and give the appropriate
attention to his legal work.[7]
In Santos v. Lazaro,[8] we held that Rule 18.03 of the Code of
Professional Responsibility is a basic postulate in legal
ethics. Indeed, when a lawyer takes a clients cause, he covenants
that he will exercise due diligence in protecting the latters
rights. Failure to exercise that degree of vigilance and attention
expected of a good father of a family makes the lawyer unworthy
of the trust reposed in him by his client and makes him answerable
not just to his client but also to the legal profession, the courts and
society. Until the lawyers withdrawal is properly done, the lawyer is
expected to do his or her best for the interest of the client. [9]In this
case, respondent fell short of the diligence required of a lawyer
entrusted with a case. It is undisputed that respondent was hired
by the complainant on August 28, 1989, and that respondent sent
the notice to vacate to the lessee before the appropriate unlawful
detainer case could be filed. However, after nine months,
respondent had done nothing further in connection with the case.
Among the fundamental rules of ethics is the principle that an
attorney who undertakes to conduct an action impliedly stipulates
to carry it to its conclusion. [10] However, respondent in this case
failed to file the appropriate civil case after sending a demand
letter. The failure to file a pleading is by itself inexcusable

negligence on the part of respondent.[11] Moreover, this Court

finds reprehensible respondents failure to heed the request of his
client for the return of the case documents. That respondent gave
no reasonable explanation for that failure makes his neglect
patent.Respondent aggravates his misconduct by blaming the
courts. Respondents excuse that the MCTC having jurisdiction
over the case was vacant; that filing of a case would be useless;
and that the best thing to do was to wait for the vacancy to be
filled, finds no support in the practice of law. The vacancy in court
did not suspend the courts official existence, much less render
it functus oficio.
Respondent also relies in vain on complainants letter
dated August 16, 1990, wherein
complainant informed
respondent of her decision to withdraw the case. According to the
complainant, she resorted to the letter so she could retrieve the
records she previously handed over to the respondent, but he
continued to refuse to return them. It may be noted that the letter
was sent to respondent a few days before the lapse of the oneyear prescriptive period. If respondent had earlier filed a case,
there would have been no need for complainant to resort to that
letter to get the records in line with her plan to have the Public
Attorneys Office assist in filing the appropriate case. Needless to
stress, because of the respondents failure to file the appropriate
case, and his refusal to return the documents, time ran out and
the action for unlawful detainer case was barred by
prescription. Damage and prejudice to the clients cause was
undeniable.

Finally, we find the recommended penalty of one-month

suspension from the practice of law too light. In previous cases,
we have imposed six months suspension for violations of this
nature, taking into consideration the gravity of the offense and
the necessity of preserving the integrity of the legal
profession. In Reyes v. Vitan,[12] for failure to take the appropriate
actions in connection with his clients case, the lawyer was
suspended from the practice of law for a period of six months and
was required to render accounting of all the sums he received
from his client. Considering precedents, in the light of
circumstances in this case, we find no reason to deviate now from
the penalty meted previously for similar infractions.
WHEREFORE, respondent Atty. Manuel G. San Jose is hereby
declared guilty of violation of Canon 18 specifically Rule 18.03 of
the Code of Professional Responsibility and is SUSPENDED from
the practice of law for a period of six (6) months effective upon
notice of this Resolution. He is ordered to return to complainant,
within five (5) days from notice, the sum of P2,000 with 12%
interest per annum from the date of the promulgation of this
Resolution until the full amount shall have been returned.Let a
copy of this Resolution be entered into respondents personal
records as an attorney and as a member of the Philippine Bar,
and furnished the Court Administrator for distribution to all courts
of the land, the IBP, and the Office of the Bar Confidant.
SO ORDERED.