EN BANC indirect participation in the proclamation of Vice President
Gloria Macapagal Arroyo on January 20, 2001, as cited in the
[G.R. No. 159486-88 : November 25, 2003]
PRESIDENT JOSEPH EJERCITO
ESTRADA, Petitioner, v. THE HONORABLE
SANDIGANBAYAN [SPECIAL DIVISION], HON.
MINITA CHICO-NAZARIO, HON. EDILBERTO
SANDOVAL, HON. TERESITA LEONARDO-DE
CASTRO, and THE PEOPLE OF THE
PHILIPPINES,Respondents.
On 23 September 2003, this Court issued its resolution in the
above-numbered case; it read: The case for consideration has
been brought to this Court via a Petition for Certiorari under
Rule 65 of the Rules of Court filed by Joseph Ejercito Estrada,
acting through his counsel Attorney Alan F. Paguia, against
the Sandiganbayan, et al. The Petition prays
1. That Chief Justice Davide and the rest of the members of
the Honorable Court disqualify themselves from hearing and
deciding this petition;
2. That the assailed resolutions of the Sandiganbayan be
vacated and set aside; and
3. That Criminal Cases No. 26558, No. 26565 and No. 26905
pending before the Sandiganbayan be dismissed for lack of
jurisdiction.
Attorney Alan F. Paguia, speaking for petitioner, asserts that
the inhibition of the members of the Supreme Court from
hearing the petition is called for under Rule 5.10 of the Code
of Judicial Conduct prohibiting justices or judges from
participating in any partisan political activity which
proscription, according to him, the justices have violated by
attending the EDSA 2 Rally and by authorizing the
assumption of Vice-President Gloria Macapagal Arroyo to the
Presidency in violation of the 1987 Constitution. Petitioner
contends that the justices have thereby prejudged a case that
would assail the legality of the act taken by President Arroyo.
The subsequent decision of the Court in Estrada v.
Arroyo (353 SCRA 452 and 356 SCRA 108) is, petitioner
states, a patent mockery of justice and due process. Attorney
Paguia first made his appearance for petitioner when he filed
an Omnibus Motion on 19 May 2003, before the
Sandiganbayan, asking that the appointment of counsels de
officio (sic) be declared functus officio and that, being the now
counsel de parte, he be notified of all subsequent proceedings
in Criminal Cases No. 26558, No. 26565 and No. 26905
pending therein. Finally, Attorney Paguia asked that all the
foregoing criminal cases against his client be dismissed.
During the hearing of the Omnibus Motion on 30 May 2003,
petitioner presented to the court several portions of the book,
entitled Reforming the Judiciary, written by Justice Artemio
Panganiban, to be part of the evidence for the defense. On 9
June 2003, petitioner filed a motion pleading, among other
things, that
a) x x x President Estrada be granted the opportunity to prove
the truth of the statements contained in Justice Artemio
Panganibans book, REFORMING THE JUDICIARY, in
relation to the prejudgment committed by the Supreme Court
justices against President Estrada in the subject case/s
of Estrada v. Arroyo, 353 SCRA 452 and 356 SCRA 108; and,
b) A subpoena ad testificandum and duces tecum be issued to
Justice Artemio Panganiban, Justice Antonio Carpio, Justice
Renato Corona, Secretary Angelo Reyes of the Department of
National Defense, Vice President Gloria Macapagal-Arroyo,
Senator Aquilino Pimentel, Jr., and Chief Justice Hilario
Davide, Jr. for them to testify and bring whatever supporting
documents they may have in relation to their direct and
book of Justice Panganiban, including the material events that
led to that proclamation and the ruling/s in the Estrada vs.
Arroyo, supra. (Rollo, pp. 6-7.) The truth referred to in
paragraph a) of the relief sought in the motion of petitioner
pertains to what he claims should have been included in the
resolution of the Sandiganbayan; viz: The request of the
movant is simply for the Court to include in its Joint
Resolution the TRUTH of the acts of Chief Justice Davide, et
al., last January 20, 2001 in:
a) going to EDSA 2;
b) authorizing the proclamation of Vice-President Arroyo as
President on the ground of permanent disability even without
proof of compliance with the corresponding constitutional
conditions, e.g., written declaration by either the President or
majority of his cabinet; and
c) actually proclaiming Vice-President Arroyo on that same
ground of permanent disability.
It is patently unreasonable for the Court to refuse to include
these material facts which are obviously undeniable. Besides,
it is the only defense of President Estrada. (Petition, Rollo, pp.
13-14. On 2 July 2003, the Sandiganbayan issued an order
denying the foregoing motion, as well as the motion to
dismiss, filed by petitioner. Forthwith, petitioner filed
a Mosyong Pangrekonsiderasyon of the foregoing order.
According to Attorney Paguia, during the hearing of
his Mosyong Pangrekonsiderasyon on 11 June 2003, the three
justices of the Special Division of the Sandiganbayan made
manifest their bias and partiality against his client. Thus, he
averred, Presiding Justice Minita V. Chico-Nazario
supposedly employed foul and disrespectful language when
she blurted out, Magmumukha naman kaming gago, (Rollo, p.
13.) and Justice Teresita Leonardo-De Castro characterized
the motion as insignificant even before the prosecution could
file its comments or opposition thereto, (Rollo, p. 12.)
remarking in open court that to grant Estradas motion would
result in chaos and disorder.(Ibid.) Prompted by the alleged
bias and partial attitude of the Sandiganbayan justices,
Attorney Paguia filed, on 14 July 2003, a motion for their
disqualification. On 31 July 2003, petitioner received the two
assailed resolutions, i.e., the resolution (Promulgated on 30
July 2003.) of 28 July 2003, denying petitioners motion for
reconsideration of 6 July 2003; viz: WHEREFORE, premises
considered, accused-movant Joseph Ejercito
Estradas Mosyong Pangrekonsiderasyon (Na tumutukoy sa
Joint Resolution ng Hulyo 2, 2003) dated July 6, 2003 is
DENIED for lack of merit. (Rollo, p. 37.) and the resolution
(Promulgated on 30 July 2003.) of 25 July 2003, denying
petitioners motion for disqualification of 14 July 2003; viz:
WHEREFORE, prescinding from all the foregoing, the Court,
for want of merit, hereby DENIES the Motion for
Disqualification. (Rollo, p. 48.) The instant petition assailing
the foregoing orders must be DISMISSED for gross
insufficiency in substance and for utter lack of merit. The
Sandiganbayan committed no grave abuse of discretion, an
indispensable requirement to warrant a recourse to the
extraordinary relief of petition for certiorari under Rule 65 of
the Revised Rules of Civil Procedure. On the one hand,
petitioner would disclaim the authority and jurisdiction of the
members of this tribunal and, on the other hand, he would
elevate the petition now before it to challenge the two
resolutions of the Sandiganbayan. He denounces the decision
as being a patent mockery of justice and due process. Attorney
Pagula went on to state that- The act of the public officer, if
LAWFUL, is the act of the public office. But the act of the
public officer, if UNLAWFUL, is not the act of the public
office. Consequently, the act of the justices, if LAWFUL, is
the act of the Supreme Court. But the act of the justices, if
UNLAWFUL, is not the act of the Supreme Court. It is
submitted that the Decision in ESTRADA vs. ARROYO being
patently unlawful in view of Rule 5.10 of the CODE OF
JUDICIAL CONDUCT, is not the act of the Supreme Court
but is merely the wrong or trespass of those individual Justices
who falsely spoke and acted in the name of the Supreme
Court. (Urbano vs. Chavez, 183 SCRA [347]). Furthermore, it
would seem absurd to allow the Justices to use the name of the
Supreme Court as a shield for their UNLAWFUL act.
Criticism or comment made in good faith on the correctness or
wrongness, soundness or unsoundness, of a decision of the
Court would be welcome for, if well-founded, such reaction
can enlighten the court and contribute to the correction of an
error if committed. The ruling in Estrada v. Arroyo, being a
final judgment, has long put to end any question pertaining to
the legality of the ascension of Arroyo into the presidency. By
reviving the issue on the validity of the assumption of Mme.
Gloria Macapagal-Arroyo to the presidency, Attorney Paguia
is vainly seeking to breathe life into the carcass of a long dead
issue. Attorney Paguia has not limited his discussions to the
merits of his clients case within the judicial forum; indeed, he
has repeated his assault on the Court in both broadcast and
print media. Rule 13.02 of the Code of Professional
Responsibility prohibits a member of the bar from making
such public statements on any pending case tending to arouse
public opinion for or against a party. By his acts, Attorney
Paguia may have stoked the fires of public dissension and
posed a potentially dangerous threat to the administration of
justice. It is not the first time that Attorney Paguia has
exhibited similar conduct towards the Supreme Court. In a
letter, dated 30 June 2003, addressed to Chief Justice Hilario
G. Davide, Jr., and Associate Justice Artemio V. Panganiban,
he has demanded, in a clearly disguised form of forum
shopping, for several advisory opinions on matters pending
before the Sandiganbayan. In a resolution, dated 08 July 2003,
this Court has strongly warned Attorney Alan Paguia, on pain
of disciplinary sanction, to desist from further making, directly
or indirectly, similar submissions to this Court or to its
Members. But, unmindful of the well-meant admonition to
him by the Court, Attorney Paguia appears to persist on end.
WHEREFORE, the instant petition for certiorari is
DISMISSED, and the Court hereby orders Attorney Alan
Paguia, counsel for petitioner Joseph Ejercito Estrada, to
SHOW CAUSE, within ten days from notice hereof, why he
should not be sanctioned for conduct unbecoming a lawyer
and an officer of the Court. On 10 October 2003, Atty. Paguia
submitted his compliance with the show-cause order. In a
three-page pleading, Atty. Paguia, in an obstinate display of
defiance, repeated his earlier claim of political partisanship
against the members of the Court. Canon 5.10 of the Code of
Judicial Conduct, which Atty. Paguia has tirelessly quoted to
give some semblance of validity for his groundless attack on
the Court and its members, provides - Rule 5.10. A judge is
entitled to entertain personal views on political questions. But
to avoid suspicion of political partisanship, a judge shall not
make political speeches, contribute to party funds, publicly
endorse candidates for political office or participate in
other partisan political activities. Section 79(b) of the
Omnibus Election Code defines the term partisan political
activities; the law states: The term election campaign
or partisan political activity refers to an act designed to
promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate.
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate
for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
It should be clear that the phrase partisan political activities, in
its statutory context, relates to acts designed to cause the
success or the defeat of a particular candidate or candidates
who have filed certificates of candidacy to a public office in
an election. The taking of an oath of office by any incoming
President of the Republic before the Chief Justice of
the Philippines is a traditional official function of the Highest
Magistrate. The assailed presence of other justices of the
Court at such an event could be no different from their
appearance in such other official functions as attending
the Annual State of the Nation Address by the President of
the Philippines before the Legislative Department. The
Supreme Court does not claim infallibility; it will not
denounce criticism made by anyone against the Court for, if
well-founded, can truly have constructive effects in the task of
the Court, but it will not countenance any wrongdoing nor
allow the erosion of our peoples faith in the judicial system,
let alone, by those who have been privileged by it to practice
law in the Philippines. Canon 11 of the Code of Professional
Responsibility mandates that the lawyer should observe and
maintain the respect due to the courts and judicial officers and,
indeed, should insist on similar conduct by others. In liberally
imputing sinister and devious motives and questioning the
impartiality, integrity, and authority of the members of the
Court, Atty. Paguia has only succeeded in seeking to impede,
obstruct and pervert the dispensation of justice.
The attention of Atty. Paguia has also been called to the
mandate of Rule 13.02 of the Code of Professional
Responsibility prohibiting a member of the bar from
making such public statements on a case that may tend to
arouse public opinion for or against a party. Regrettably,
Atty. Paguia has persisted in ignoring the Courts well-
meant admonition.
On the 7th September 2003 issue of the Daily Tribune,
Atty. Paguia wrote to say -
What is the legal effect of that violation of President
Estradas right to due process of law? It renders the
decision in Estrada vs. Arroyo unconstitutional and void.
The rudiments of fair play were not observed. There was
no fair play since it appears that when President Estrada
filed his petition, Chief Justice Davide and his fellow
justices had already committed to the other party - GMA -
with a judgment already made and waiting to be
formalized after the litigants shall have undergone the
charade of a formal hearing. After the justices had
authorized the proclamation of GMA as president, can
they be expected to voluntarily admit the
unconstitutionality of their own act?
Unrelentingly, Atty. Paguia has continued to make public
statements of like nature. The Court has already warned Atty.
Paguia, on pain of disciplinary sanction, to become mindful of
his grave responsibilities as a lawyer and as an officer of the
Court. Apparently, he has chosen not to at all take heed.
WHEREFORE, Attorney Alan Paguia is hereby indefinitely
suspended from the practice of law, effective upon his receipt
hereof, for conduct unbecoming a lawyer and an officer of the
Court. Let copies of this resolution be furnished the Office of
the Bar Confidant, the Integrated Bar of the Philippines and all
courts of the land through the Office of the Court
Administrator.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.
Carpio, J., no part.
Case NO. 2
EN BANC
G.R. No. 176278 : June 25, 2010
ALAN F. PAGUIA, Petitioner, vs. OFFICE OF THE
PRESIDENT, SECRETARY OF FOREIGN
AFFAIRS, and HON. HILARIO DAVIDE, JR., in his
capacity as Permanent Representative of the Philippines to
the United Nations, Respondents.
At issue is the power of Congress to limit the President's
prerogative to nominate ambassadors by legislating age
qualifications despite the constitutional rule limiting Congress'
role in the appointment of ambassadors to the Commission on
Appointments' confirmation of nominees.[1] However, for lack
of a case or controversy grounded on petitioner's lack of
capacity to sue and mootness,[2] we dismiss the petition
without reaching the merits, deferring for another day the
resolution of the question raised, novel and fundamental it
may be. Petitioner Alan F. Paguia (petitioner), as citizen and
taxpayer, filed this original action for the writ of certiorari to
invalidate President Gloria Macapagal-Arroyo's nomination of
respondent former Chief Justice Hilario G. Davide, Jr.
(respondent Davide) as Permanent Representative to the
United Nations (UN) for violation of Section 23 of Republic
Act No. 7157 (RA 7157), the Philippine Foreign Service Act
of 1991. Petitioner argues that respondent Davide's age at that
time of his nomination in March 2006, 70, disqualifies him
from holding his post. Petitioner grounds his argument on
Section 23 of RA 7157 pegging the mandatory retirement age
of all officers and employees of the Department of Foreign
Affairs (DFA) at 65.[3] Petitioner theorizes that Section 23
imposes an absolute rule for all DFA employees, career or
non-career; thus, respondent Davide's entry into the DFA
ranks discriminates against the rest of the DFA officials and
employees. In their separate Comments, respondent Davide,
the Office of the President, and the Secretary of Foreign
Affairs (respondents) raise threshold issues against the
petition. First, they question petitioner's standing to bring this
suit because of his indefinite suspension from the practice of
law.[4] Second, the Office of the President and the Secretary of
Foreign Affairs (public respondents) argue that neither
petitioner's citizenship nor his taxpayer status vests him with
standing to question respondent Davide's appointment because
petitioner remains without personal and substantial interest in
the outcome of a suit which does not involve the taxing power
of the state or the illegal disbursement of public funds. Third,
public respondents question the propriety of this petition,
contending that this suit is in truth a petition forquo
warranto which can only be filed by a contender for the office
in question. On the eligibility of respondent Davide,
respondents counter that Section 23's mandated retirement age
applies only to career diplomats, excluding from its ambit
non-career appointees such as respondent Davide. The petition
presents no case or controversy for petitioner's lack of capacity
to sue and mootness. First. Petitioner's citizenship and
taxpayer status do not clothe him with standing to bring this
suit. We have granted access to citizen's suits on the narrowest
of ground: when they raise issues of 'transcendental'
importance calling for urgent resolution.[5] Three factors are
relevant in our determination to allow third party suits so we
can reach and resolve the merits of the crucial issues raised –
the character of funds or assets involved in the controversy, a
clear disregard of constitutional or statutory prohibition, and
the lack of any other party with a more direct and specific
interest to bring the suit.[6] None of petitioner's allegations
comes close to any of these parameters. Indeed, implicit in a
petition seeking a judicial interpretation of a statutory
provision on the retirement of government personnel
occasioned by its seemingly ambiguous crafting is the
admission that a 'clear disregard of constitutional or statutory
prohibition' is absent. Further, the DFA is not devoid of
personnel with 'more direct and specific interest to bring the
suit.' Career ambassadors forced to leave the service at the
mandated retirement age unquestionably hold interest far more
substantial and personal than petitioner's generalized interest
as a citizen in ensuring enforcement of the law. The same
conclusion holds true for petitioner's invocation of his
taxpayer status. Taxpayers' contributions to the state's coffers
entitle them to question appropriations for expenditures which
are claimed to be unconstitutional or illegal.[7]However, the
salaries and benefits respondent Davide received
commensurate to his diplomatic rank are fixed by law and
other executive issuances, the funding for which was included
in the appropriations for the DFA's total expenditures
contained in the annual budgets Congress passed since
respondent Davide's nomination. Having assumed office under
color of authority (appointment), respondent Davide is at least
a de facto officer entitled to draw salary,[8] negating
petitioner's claim of 'illegal expenditure of scarce public funds.
Second. An incapacity to bring legal actions peculiar to
petitioner also obtains. Petitioner's suspension from the
practice of law bars him from performing 'any activity, in or
out of court, which requires the application of law, legal
procedure, knowledge, training and experience.'[10] Certainly,
preparing a petition raising carefully crafted arguments on
equal protection grounds and employing highly legalistic rules
of statutory construction to parse Section 23 of RA 7157 falls
within the proscribed conduct. Third. A supervening event has
rendered this case academic and the relief prayed for moot.
Respondent Davide resigned his post at the UN on 1 April
2010.
WHEREFORE, we DISMISS the petition.
CASE NO. 3
Cayetano v. Monsod, 201 SCRA 210
FACTS: Monsod was nominated by President Aquino as
Chairman of the Comelec. The Commission on Appointments
confirmed the appointment despite Cayetano's objection,
based on Monsod's alleged lack of the required qualification
of 10 year law practice. Cayetano filed this certiorari and
prohibition.
ISSUE: Whether or not Monsod has been engaged in the
practice of law for 10 years
RULING: YES. The practice of law is not limited to the
conduct of cases or litigation in court. It embraces the
preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and
proceedings on behalf of clients, and other works where the
work done involves the determination of the trained legal
mind of the legal effect of facts and conditions (PLA vs.
Agrava.)The records of the 1986 constitutional commission
show that the interpretation of the term practice of law was
liberal as to consider lawyers employed in the Commission of
Audit as engaged in the practice of law provided that they use
their legal knowledge or talent in their respective work. The
court also cited an article in the January 11, 1989 issue of the
Business Star, that lawyers nowadays have their own
specialized fields such as tax lawyers, prosecutors, etc., that
because of the demands of their specialization, lawyers engage
in other works or functions to meet them. These days, for
example, most corporation lawyers are involved in
management policy formulation. Therefore, Monsod, who
passed the bar in 1960, worked with the World Bank Group
from 1963-1970, then worked for an investment bank till
1986, became member of the CONCOM in 1986, and also
became a member of the Davide Commission in 1990, can be
considered to have been engaged in the practice of law as
lawyer-economist, lawyer-manager, lawyer-entrepreneur, etc.
ISSUE: Whether or not the Commission on Appointments
committed grave abuse of discretion in confirming Monsod’s
appointment
RULING: NO. The power of the COA to give consent to the
nomination of the Comelec Chairman by the president is
mandated by the constitution. The power of appointment is
essentially within the discretion of whom it is so vested
subject to the only condition that the appointee should possess
the qualification required by law. From the evidence, there is
no occasion for the SC to exercise its corrective power since
there is no such grave abuse of discretion on the part of the
CA. Adapted
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA,
COMMISSION ON APPOINTMENT, and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of
Budget and Management, respondents.
We are faced here with a controversy of far-reaching
proportions. While ostensibly only legal issues are involved,
the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national
existence. The 1987 Constitution provides in Section 1 (1),
Article IX-C: There shall be a Commission on Elections
composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any
elective position in the immediately preceding -elections.
However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Emphasis supplied) The
aforequoted provision is patterned after Section l(l), Article
XII-C of the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections
composed of a Chairman and eight Commissioners who shall
be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age and holders
of a college degree. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years.'
Regrettably, however, there seems to be no jurisprudence as to
what constitutes practice of law as a legal qualification to an
appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other
papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of
law by maintaining an office where he is held out to be-an
attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees
for services rendered by his associate. The practice of law is
not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E.
650) A person is also considered to be in the practice of law
when he:... for valuable consideration engages in the business
of advising person, firms, associations or corporations as to
their rights under the law, or appears in a representative
capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to
settle controversies and there, in such representative capacity
performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the
business of advising clients as to their rights under the law, or
while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of
law.This Court in the case of Philippine Lawyers Association
v.Agrava, (105 Phil. 173,176-177) stated:The practice of
law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers
incident to actions and special proceedings, the management
of such actions and proceedings on behalf of clients before
judges and courts, and in addition, conveying. In general,
all advice to clients, and all action taken for them in
mattersconnected with the law incorporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have
been held to constitute law practice, as do the preparation and
drafting of legal instruments, where the work done involves
the determination by the trained legal mind of the legal effect
of facts and conditions. (5 Am. Jr. p. 262, 263). Practice of
law under modem conditions consists in no small part of work
performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the
giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an
extensive field of business and trust relations and other
affairs. Although these transactions may have no direct
connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney
or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so
far as concerns the question set forth in the order, can be
drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients
which rests upon all attorneys. (Moran, Comments on the
Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re
Opinion of the Justices [Mass.], 194 N.E. 313, quoted
in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.]
179 A. 139,144). The University of the Philippines Law
Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in
even broader terms as advocacy, counselling and public
service. One may be a practicing attorney in following any
line of employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys
engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this he
is a practicing attorney at law within the meaning of the
statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which
requires the application of law, legal procedure, knowledge,
training and experience. "To engage in the practice of law is to
perform those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind
of service, which device or service requires the use in any
degree of legal knowledge or skill. The following records of
the 1986 Constitutional Commission show that it has adopted
a liberal interpretation of the term "practice of law." MR.
FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on AuditMay I be allowed to
make a very brief statement?
Section 1(1), Article IX-D of the 1987 Constitution, provides,
among others, that the Chairman and two Commissioners of
the Commission on Audit (COA) should either be certified
public accountants with not less than ten years of auditing
practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.Corollary
to this is the term "private practitioner" and which is in many
ways synonymous with the word "lawyer." Today, although
many lawyers do not engage in private practice, it is still a fact
that the majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15)At this point, it might be
helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in
the business of delivering legal services." (Ibid.). Lawyers
who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a
partnership and members of the firm are the partners. Some
firms may be organized as professional corporations and the
members called shareholders. In either case, the members of
the firm are the experienced attorneys. In most firms, there are
younger or more inexperienced salaried attorneyscalled
"associates."The test that defines law practice by looking to
traditional areas of law practice is essentially tautologous,
unhelpful defining the practice of law as that which lawyers
do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law
is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar
Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140
A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers
perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too
global to be workable.The appearance of a lawyer in litigation
in behalf of a client is at once the most publicly familiar role
for lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, and a
large percentage spend their entire practice without litigating a
case. (Ibid., p. 593). Nonetheless, many lawyers do continue to
litigate and the litigating lawyer's role colors much of both the
public image and the self perception of the legal profession. In
this regard thus, the dominance of litigation in the public mind
reflects history, not reality. (Ibid.). Why is this so? Recall that
the late Alexander SyCip, a corporate lawyer, once articulated
on the importance of a lawyer as a business counselor in this
wise: "Even today, there are still uninformed laymen whose
concept of an attorney is one who principally tries cases
before the courts. The members of the bench and bar and the
informed laymen such as businessmen, know that in most
developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation
work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as
business counseling than in trying cases. The business lawyer
has been described as the planner, the diagnostician and the
trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in
law, as in medicine, surgery should be avoided where internal
medicine can be effective." In the course of a working day the
average general practitioner wig engage in a number of legal
tasks, each involving different legal doctrines, legal skills,
legal processes, legal institutions, clients, and other interested
parties. Even the increasing numbers of lawyers in specialized
practice wig usually perform at least some legal services
outside their specialty. And even within a narrow specialty
such as tax practice, a lawyer will shift from one legal task or
role such as advice-giving to an importantly different one such
as representing a client before an administrative agency. By no
means will most of this work involve litigation, unless the
lawyer is one of the relatively rare types — a litigator who
specializes in this work to the exclusion of much else. Instead,
the work will require the lawyer to have mastered the full
range of traditional lawyer skills of client counselling, advice-
giving, document drafting, and negotiation. And increasingly
lawyers find that the new skills of evaluation and mediation
are both effective for many clients and a source of
employment. Most lawyers will engage in non-litigation legal
work or in litigation work that is constrained in very important
ways, at least theoretically, so as to remove from it some of
the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature
of the client and by the way in which the lawyer is organized
into a social unit to perform that work. The most common of
these roles are those of corporate practice and government
legal service. In several issues of the Business Star, a business
daily, herein below quoted are emerging trends in corporate
law practice, a departure from the traditional concept of
practice of law. We are experiencing today what truly may be
called a revolutionary transformation in corporate law
practice. Lawyers and other professional groups, in particular
those members participating in various legal-policy decisional
contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent
decision-making. Constructive adjustment to major corporate
problems of today requires an accurate understanding of the
nature and implications of the corporate law research function
accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "model-
making" and "contingency planning," has impressed upon us
the inadequacy of traditional procedures in many decisional
contexts. In a complex legal problem the mass of information
to be processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the necessity
of estimating the consequences of given courses of action, and
the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic data
processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress
the predictive component of the policy-making process,
wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly
engaged in predicting and projecting the trends of the law, the
subject of corporate finance law has received relatively little
organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a cross-
disciplinary approach to legal research has become a vital
necessity. Certainly, the general orientation for productive
contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable
decisional context and the various approaches for handling
such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management,
functioning at the legal policy level of decision-making now
have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in
similar types of complex decision-making.
Truth to tell, many situations involving corporate finance
problems would require the services of an astute attorney
because of the complex legal implications that arise from each
and every necessary step in securing and maintaining the
business issue raised. In our litigation-prone country, a
corporate lawyer is assiduously referred to as the "abogado de
campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of
business and industry. Despite the growing number of
corporate lawyers, many people could not explain what it is
that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and
type of the corporation. Many smaller and some large
corporations farm out all their legal problems to private law
firms. Many others have in-house counsel only for certain
matters. Other corporation have a staff large enough to handle
most legal problems in-house. A corporate lawyer, for all
intents and purposes, is a lawyer who handles the legal affairs
of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research,
acting out as corporate secretary (in board meetings),
appearances in both courts and other adjudicatory agencies
(including the Securities and Exchange Commission), and in
other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities
other than the legal affairs of the business of the corporation
he is representing. These include such matters as determining
policy and becoming involved in management. In a big
company, for example, one may have a feeling of being
isolated from the action, or not understanding how one's work
actually fits into the work of the orgarnization. This can be
frustrating to someone who needs to see the results of his work
first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the
business. Moreover, a corporate lawyer's services may
sometimes be engaged by a multinational corporation (MNC).
Some large MNCs provide one of the few opportunities
available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively
small number of companies and law firms. Because working
in a foreign country is perceived by many as glamorous, tills is
an area coveted by corporate lawyers. In most cases, however,
the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law
libraries. This brings us to the inevitable, i.e., the role of the
lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a good lawyer is one
who perceives the difficulties, and the excellent lawyer is one
who surmounts them. Today, the study of corporate law
practice direly needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the
Securities Code but an incursion as well into the intertwining
modern management issues. Such corporate legal management
issues deal primarily with three (3) types of learning: (1)
acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an
introduction to usable disciplinary skins applicable to a
corporate counsel's management responsibilities; and (3) a
devotion to the organization and management of the legal
function itself. These three subject areas may be thought of as
intersecting circles, with a shared area linking them.
Otherwise known as "intersecting managerial jurisprudence,"
it forms a unifying theme for the corporate counsel's total
learning. Some current advances in behavior and policy
sciences affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a
corporation's; strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only
with public entities but with each other — often with those
who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-
making within the corporation is rapidly changing. The
modem corporate lawyer has gained a new role as a
stakeholder — in some cases participating in the organization
and operations of governance through participation on boards
and other decision-making roles. Often these new patterns
develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as
corporations organize for global operations. The practising
lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New
collaborative arrangements for promoting specific
technologies or competitiveness more generally require
approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to
influence governmental policies. And there are lessons to be
learned from other countries. In
Europe, Esprit, Eureka and Race are examples of
collaborative efforts between governmental and business
Japan's MITI is world famous. Following the concept of
boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of
all kinds of organizations. Effectiveness of both long-term and
temporary groups within organizations has been found to be
related to indentifiable factors in the group-context interaction
such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting
team achievements within the organization. In general, such
external activities are better predictors of team performance
than internal group processes. In a crisis situation, the legal
managerial capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective
managerial procedures and to understand relationships of
financial liability and insurance considerations. Regarding the
skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has
been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels,
and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial,
social, and psychological. New programming techniques now
make the system dynamics principles more accessible to
managers — including corporate counsels. (Emphasis
supplied) Second Decision Analysis. This enables users to
make better decisions involving complexity and uncertainty. In
the context of a law department, it can be used to appraise the
settlement value of litigation, aid in negotiation settlement,
and minimize the cost and risk involved in managing a
portfolio of cases. (Emphasis supplied) Third Modeling for
Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of
negotiations. All integrated set of such tools provide coherent
and effective negotiation support, including hands-on on
instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the
legal function, concern three pointed areas of consideration,
thus: Preventive Lawyering. Planning by lawyers requires
special skills that comprise a major part of the general
counsel's responsibilities. They differ from those of remedial
law. Preventive lawyering is concerned with minimizing the
risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts
are being considered and made. Managerial Jurisprudence.
This is the framework within which are undertaken those
activities of the firm to which legal consequences attach. It
needs to be directly supportive of this nation's evolving
economic and organizational fabric as firms change to stay
competitive in a global, interdependent environment. The
practice and theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a global economy
work. Organization and Functioning of the Corporate
Counsel's Office. The general counsel has emerged in the last
decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key
aspects of the firm's strategic issues, including structuring its
global operations, managing improved relationships with an
increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally
with more complex make or by decisions. This whole exercise
drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to
give him a full sense of how the legal system shapes corporate
activities. And even if the corporate lawyer's aim is not the
understand all of the law's effects on corporate activities, he
must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the
basic legal "constitution' or makeup of the modem
corporation. The challenge for lawyers (both of the bar and the
bench) is to have more than a passing knowledge of financial
law affecting each aspect of their work. Yet, many would
admit to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or will
he feign understanding and risk exposure? Respondent
Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a
letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the
nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice
of law for at least ten years. On June 5, 1991, the Commission
on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his
oath of office. On the same day, he assumed office as
Chairman of the COMELEC. Challenging the validity of the
confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying
that said confirmation and the consequent appointment of
Monsod as Chairman of the Commission on Elections be
declared null and void. Atty. Christian Monsod is a member of
the Philippine Bar, having passed the bar examinations of
1960 with a grade of 86-55%. He has been a dues paying
member of the Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying his professional
license fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having
hurdled the bar, Atty. Monsod worked in the law office of his
father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two
years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of
the Bank. Upon returning to the Philippines in 1970, he
worked with the Meralco Group, served as chief executive
officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or
chief executive officer. As former Secretary-General (1986)
and National Chairman (1987) of NAMFREL. Monsod's work
involved being knowledgeable in election law. He appeared
for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal
capacity and as former Co-Chairman of the Bishops
Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer
and urban poor groups, in initiating, lobbying for and
engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill. Monsod also made use
of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted
numerous hearings (1990) and as a member of the
Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he
was cited by the President of the Commission, Justice Cecilia
Muñoz-Palma for "innumerable amendments to reconcile
government functions with individual freedoms and public
accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) Just a word about the
work of a negotiating team of which Atty. Monsod used to be
a member. In a loan agreement, for instance, a negotiating
panel acts as a team, and which is adequately constituted to
meet the various contingencies that arise during a negotiation.
Besides top officials of the Borrower concerned, there are the
legal officer (such as the legal counsel), the finance manager,
and an operations officer (such as an official involved in
negotiating the contracts) who comprise the members of the
team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central
Bank of the Philippines, Manila, 1982, p. 11). After a fashion,
the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus,
the meat of any Loan Agreement can be compartmentalized
into five (5) fundamental parts: (1) business terms; (2)
borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. In the same vein, lawyers
play an important role in any debt restructuring program. For
aside from performing the tasks of legislative drafting and
legal advising, they score national development policies as key
factors in maintaining their countries' sovereignty. (Condensed
from the work paper, entitled "Wanted: Development Lawyers
for Developing Nations," submitted by L. Michael Hager,
regional legal adviser of the United States Agency for
International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law
Center on August 26-31, 1973). Loan concessions and
compromises, perhaps even more so than purely renegotiation
policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation.
Necessarily, a sovereign lawyer may work with an
international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the
guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an
unpublished dissertation, U.S.T. Graduate School of Law,
1987, p. 321). A critical aspect of sovereign debt
restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A
good agreement must not only define the responsibilities of
both parties, but must also state the recourse open to either
party when the other fails to discharge an obligation. For a
compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for
foreign loan agreements-an adherence to the rule of law in
domestic and international affairs of whose kind U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr. once said: "They
carry no banners, they beat no drums; but where they are, men
learn that bustle and bush are not the equal of quiet genius and
serene mastery." Interpreted in the light of the various
definitions of the term Practice of law". particularly the
modern concept of law practice, and taking into consideration
the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur
of industry, a lawyer-negotiator of contracts, and a lawyer-
legislator of both the rich and the poor — verily more than
satisfy the constitutional requirement — that he has been
engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service
Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his
best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is
a political question involving considerations of wisdom which
only the appointing authority can decide. No less emphatic
was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated: It is well-settled
that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with
the Civil Service Law. The Commission has no authority to
revoke an appointment on the ground that another person is
more qualified for a particular position. It also has no authority
to direct the appointment of a substitute of its choice. To do so
would be an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the
only condition that the appointee should possess the
qualifications required by law. The appointing process in a
regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission
on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President
issues the permanent appointment; and (4) acceptance e.g.,
oath-taking, posting of bond, etc. . . . The power of the
Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on
Elections is mandated by Section 1(2) Sub-Article C, Article
IX of the Constitution which provides: The Chairman and the
Commisioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members
for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity. Anent Justice Teodoro Padilla's separate opinion,
suffice it to say that his definition of the practice of law is the
traditional or stereotyped notion of law practice, as
distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice
Padilla's definition would require generally a habitual law
practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for
ten consecutive years. Clearly, this is far from the
constitutional intent. Upon the other hand, the separate
opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which
really means nothing because the definition says that law
practice " . . . is what people ordinarily mean by the practice of
law." True I cited the definition but only by way of sarcasm as
evident from my statement that the definition of law practice
by "traditional areas of law practice is essentially tautologous"
or defining a phrase by means of the phrase itself that is being
defined. Justice Cruz goes on to say in substance that since the
law covers almost all situations, most individuals, in making
use of the law, or in advising others on what the law means,
are actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer, a
member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons
practising law, without first becoming lawyers. Justice Cruz
also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he
lacks one or more qualifications. This matter, I greatly doubt.
For one thing, how can an action or petition be brought against
the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the
public hearings on Monsod's confirmation, implicitly
determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission in
the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where
such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case,
there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion,
that would amount to lack or excess of jurisdiction and would
warrant the issuance of the writs prayed, for has been clearly
shown. Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by
the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom
the Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body
in the U.S. Congress) decides to confirma Presidential
nominee, it would be incredible that the U.S. Supreme Court
would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit
that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the
procurator of Judea asked Delilah (who was Samson's
beloved) for help in capturing Samson. Delilah agreed on
condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the
procurator placed an iron rod burning white-hot two or three
inches away from in front of Samson's eyes. This blinded the
man. Upon hearing of what had happened to her beloved,
Delilah was beside herself with anger, and fuming with
righteous fury, accused the procurator of reneging on his
word. The procurator calmly replied: "Did any blade touch his
skin? Did any blood flow from his veins?" The procurator was
clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
CASE NO. 4
SECOND DIVISION
GEORGE C. SOLATAN, A.C. No. 6504
 The present case focuses on a critical aspect of the lawyer-
client relationship the duty of loyalty. The fidelity lawyers
owe their clients is traditionally characterized as “undivided.”
This means that lawyers must represent their clients and serve
their needs without interference or impairment from any
conflicting interest. This administrative case traces its roots
from the manner by which Attys. Jose C. Camano and Oscar
A. Inocentes responded to the efforts of complainant, George
C. Solatan, to lease a certain Quezon City apartment belonging
to the attorneys’ clients. On the basis of acts branded by the
Integrated Bar of the Philippines (IBP) as “bordering on
technical extortion,” accepting funds and giving unsolicited
advice to an adverse party, and casting doubts as to the
procedure of levy, the IBP resolved [1] to recommend the
suspension of Atty. Camano from the practice of law for one
(1) year. It likewise recommended the reprimand of Atty.
Inocentes, whom it held liable for the aforementioned acts of
his associate, under the principle of command responsibility.
Only Atty. Inocentes has elected to contest the resolution of
the IBP, as he questions the propriety of his being held
administratively liable for acts done by Atty. Camano. [2]
However, the recommendation to suspend Atty. Camano shall
also be passed upon by virtue of Section 12, Rule 139-B of the
Rules of Court. Attys. Inocentes and Camano were both
engaged in the practice of law under the firm name of Oscar
Inocentes and Associates Law Office. Atty. Inocentes held
office in his home located at No. 19 Marunong St., Central
District, Quezon City, while Atty. Camano was stationed at an
“extension office” of the firm located in 3rd/F, 956 Aurora
Blvd., Quirino Dist., Quezon City. The Oscar Inocentes and
Associates Law Office was retained by spouses Andres and
Ludivina Genito (spouses Genito), owners of an apartment
complex (the Genito Apartments) located at 259 Tandang
Sora cor. Visayas Avenue, Quezon City, when the Genito
Apartments were placed under sequestration by the
Presidential Commission on Good Government (PCGG) on 9
July 1986.[4] The law office represented the spouses Genito
before the PCGG and the Sandiganbayan, and subsequently,
with authority from the PCGG.[5] in ejectment cases against
non-paying tenants occupying the Genito Apartments.
Complainant’s sister, Gliceria Solatan, was a tenant in Door
10, Phase B of the Genito Apartments. It appears from the
records that Gliceria Solatan left for the United States in 1986,
and since then, the apartment was either intermittently used by
members of her family or placed under the charge of
caretakers.[7] In August 1987, a complaint for ejectment for
non-payment of rentals was filed against Gliceria Solatan.[8]
On 3 March 1988, in a judgment by default, a Decision[9] was
rendered ordering Gliceria Solatan to vacate the premises of
the apartment, pay the spouses Genito the amount of Thirty
Thousand Six Hundred Pesos (P30,600.00) as unpaid rentals
from February 1986 to July 1987 with interest at 24% per
annum from 20 August 1987 until the premises are vacated,
Ten Thousand Pesos (P10,000.00) as attorney’s fees, and costs
of the suit. Complainant was occupying the subject apartment
when he learned of the judgment rendered against his sister.
On 10 May 1988, prior to the implementation of a writ to
execute the judgment, complainant and his mother, Elvira
Solatan, approached Atty. Inocentes at his home office.
Complainant informed Atty. Inocentes of his desire to arrange
the execution of a lease contract by virtue of which
complainant would be the new lessee of the apartment and
thus make possible his continued stay therein. Atty.
Inocentes referred complainant and his mother to his
associate, Atty. Camano, the attorney in charge of the
ejectment cases against tenants of the Genito apartments.
After the exchange, complainant went to Atty. Camano at the
satellite office of Atty. Inocentes’s firm. From here on out,
events quickly turned sour. Different versions of subsequent
events were presented. The facts reproduced hereunder are
by and large culled from the findings of the IBP Investigating
Commissioner, Siegfred B. Mison.
During the meeting with Atty. Camano, a verbal agreement
was made in which complainant and his mother agreed to pay
the entire judgment debt of Gliceria Solatan, including fifty
percent of the awarded attorney’s fees and One Thousand Six
Hundred Pesos (P1,600.00) as costs of suit provided that Atty.
Camano would allow complainant’s continued stay at Door
10, Phase B of the Genito Apartments. As partial compliance
with the agreement, complainant issued in the name Atty.
Camano a check for Five Thousand Pesos (P5,000.00)
representing half of the P10,000.00 attorney’s fees adjudged
against complainant’s sister. Complainant and his mother
failed to make any other payment. Thus, the sheriff in
coordination with Atty. Camano and some policemen,
enforced the writ of execution on 22 June 1988 and levied the
properties found in the subject apartment. An attempt at
renegotiation took place at the insistence of complainant,
resulting in Atty. Camano’s acquiescence to release the levied
properties and allowing complainant to remain at the
apartment, subject to the latter’s payment of costs incurred in
enforcing the writ of execution and issuance of postdated
checks representing installment rental payments.
Complainant, thus, issued four (4) checks drawn on Far East
Bank and Trust Company dated the fifteenth (15th) of July,
August, September, and October 1988 each in the amount of
Three Thousand Four Hundred Pesos (P3,400.00).[11] Half of
the amount represented complainant’s monthly rental, while
the other half, a monthly installment for the payment of
Gliceria Solatan’s judgment debt.On 28 June 1988, acting on
the advice of Atty. Camano, complainant presented an
Affidavit of Ownership to the sheriff who then released the
levied items to complainant. However, a Northern Hill 3-
burner gas stove was not retuned to complainant. The stove
was in fact kept by Atty. Camano in the unit of the Genito
Apartments wherein he temporarily stayed[12] and, thereafter,
turned over the same to a certain Recto Esberto, caretaker of
the Genito Apartments. On 1 August 1988, complainant filed
the instant administrative case for disbarment against Atty.
Inocentes and Atty. Camano.[14] After formal investigation,
and despite conflicting testimonies on the tenor and content of
agreements and conversations, several disturbing facts were
revealed to have been uncontroverted—Atty. Camano’s
acceptance from complainant of attorney’s fees and the costs
of implementing the writ of execution, possession of
complainant’s levied Northern Hill oven, and advice to
complainant on how to recover the latter’s levied items. Thus,
IBP Investigating Commissioner Siegfred B. Mison, made the
following recommendations, viz: Based on the facts revealed
in their respective Memoranda, the penalty of six (6) months
suspension is therefore recommended to be imposed on
Respondent Camano for committing the following acts that
adversely reflects (sic) on his moral fitness to continue to
practice law[:]
1. He received money (P5,000 then P1,000) from the adverse
party purportedly for attorneys fees and for reimbursement of
sheriff’s expenses. Such act of accepting funds from the
adverse party in the process of implementing a writ,
borders on technical extortion particularly in light of the
factual circumstances as discussed.
2. He gave unsolicited advice to the adverse party in
suggesting the filing of an Affidavit of Ownership over the
levied properties, asuggestion evidently in conflict with [the
interest of] his own client, supposedly, the Genitos.
3. He failed to turn over the gas stove to either party
thereby casting doubt as to the procedure of the levy.
Based on the facts revealed, the penalty of Reprimand is
therefore recommended to be imposed on Respondent
Inocentes for committing the following acts that adversely
reflects (sic) in his fitness to continue to practice law[:]
1. He allowed Camano to perform all the aforementioned
acts, either by negligence or inadvertence which are
inimical to the legal profession. He cannot claim ignorance or
feign innocence in this particular transaction considering that
the Complainants themselves went to his office on different
occasions regarding this transaction. Ultimately, he exercised
command responsibility over the case and had supervisory
control over Respondent Camano inasmuch as he received
periodic reports either by phone or in person from the
latter.
2. The letter disclaimer executed by Mr. Genito filed by
Respondent Inocentes does not mitigate any liability
whatsoever since the wrongdoing done against the profession
cannot be undone by a mere letter from a third
party.[15] (Emphasis supplied.)
The IBP Board of Governors approved the aforequoted
recommendation, with the modification of an increase in Atty.
Camano’s period of suspension from six (6) months to one (1)
year, in a resolution stating, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, the Report and
Recommendation of the of the Investigating
Commissioner…finding the recommendation fully supported
by the evidence on record and the applicable laws and rules,
with modification, and for accepting funds from adverse party
in the process of implementing a writ borders on technical
extortion, for giving unsolicited advice to the adverse party a
suggestion evidently in conflict with [the interest of] his own
client and for casting doubts to the procedure of the levy, Atty.
Jose C. Camano is hereby SUSPENDED from the practice of
law for one (1) year, likewise, Atty. Oscar Inocentes is hereby
REPRIMANDED for he exercised command responsibility
over the case inasmuch as he received periodic reports either
by phone or in person.[16]The IBP held that Atty. Camano’s act
of giving unsolicited advice to complainant is a culpable act
because the advice conflicted with the interest of his clients,
the spouses Genito. The rule on conflicting interests,
established in Rule 15.03 of the Code of Professional
Responsibility, deals with conflicts in the interests of an
attorney’s actual clients among themselves, of existing and
prospective clients, and of the attorney and his clients. It
states that a lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts. The relation of attorney and client
begins from the time an attorney is retained.[17] An attorney
has no power to act as counsel or legal representative for a
person without being retained.[18] To establish the
professional relation, it is sufficient that the advice and
assistance of an attorney are sought and received in any
manner pertinent to his profession.[19] At the time the
questioned statement was made, Atty. Camano had called the
police to restrain complainant from surreptitiously pulling out
the levied properties from the apartment complex by virtue of
which the latter was brought to the police station for
questioning. The statement was made in response to
complainant’s insistence at the police station that the levied
properties were owned by him and not by the judgment
debtor.[20] No employment relation was offered or accepted in
the instant case. More fitting, albeit, to the mind of this Court,
inapplicable to the case, is Canon 15 of the same Code which
encompasses the aforementioned rule. In general terms,
Canon 15 requires lawyers to observe loyalty in all dealings
and transactions with their clients.[21] Unquestionably, an
attorney giving legal advice to a party with an interest
conflicting with that of his client resulting in detriment to the
latter may be held guilty of disloyalty. However, far be it that
every utterance of an attorney which may have afforded an
individual some relief adverse to the former’s client may be
labeled as a culpable act of disloyalty. As in every case, the
acts alleged to be culpable must be assessed in light of the
surrounding circumstances.
While the levy was made on chattel found in the
apartment of the judgment debtor, Gliceria Solatan, the
complainant was the true owner of the properties.
Consequently, the latter had a right to recover the same. In
fact, considering the circumstances, the questioned statement
is in consonance with complainant’s foremost duty to uphold
the law as an officer of the court. The statement of Atty.
Camano in such a context should not be construed by this
Court as giving advice in conflict against the interest of the
spouses Genito as in fact the latter have no interest over the
incorrectly levied properties. We, thus, note that the act of
informing complainant that the levied properties would be
returned to him upon showing proof of his ownership thereof
may hint at infidelity to the interest of the spouses Genito, but,
in this circumstance, lacks the essence of double dealing and
betrayal of the latter’s confidence so as to deserve outright
categorization as infidelity or disloyalty to his clients’ cause.
Nonetheless, after having noted the foregoing, we remain
convinced with the propriety of meting the one (1) year
suspension from the practice of law on Atty. Camano, as
recommended by the IBP, based on his other culpable acts
which tend to degrade the profession and foment distrust in
the integrity of court processes. On the other hand, Atty.
Inocentes seeks to distance himself from the events that
transpired and the reprimand resulting therefrom by asserting
that he was incorrectly punished for Atty. Camano’s acts when
his mere participation in the fiasco was to refer complainant
and his mother to Atty. Camano. However, it is precisely
because of such participation, consisting as it did of referring
the complainant to his associate lawyer, that Atty. Inocentes
may be held administratively liable by virtue of his associate’s
unethical acts. His failure to exercise certain responsibilities
over matters under the charge of his law firm is a blameworthy
shortcoming. The term “command responsibility,” as Atty.
Inocentes suggests, has special meaning within the circle of
men in uniform in the military; however, the principle does
not abide solely therein. It controls the very circumstance in
which Atty. Inocentes found himself. We are not unaware of
the custom of practitioners in a law firm of assigning cases
and even entire client accounts to associates or other partners
with limited supervision, if at all. This is especially true in the
case of Attys. Inocentes and Camano who, from the records,
both appear to be seasoned enough to be left alone in their
work without requiring close supervision over each other’s
conduct and work output. However, let it not be said that law
firm practitioners are given a free hand to assign cases to
seasoned attorneys and thereafter conveniently forget about
the case. To do so would be a disservice to the profession, the
integrity and advancement of which this Court must jealously
protect. That the firm name under which the two attorneys
labored was that of Oscar Inocentes and Associates Law
Office does not automatically make Atty. Inocentes the default
lawyer acting in a supervisory capacity over Atty. Camano. It
did, however, behoove Atty. Inocentes to exert ordinary
diligence to find out what was going on in his law firm. It
placed in Atty. Inocentes the active responsibility to inquire
further into the circumstances affecting the levy of
complainant’s properties, irrespective of whether the same
were in fact events which could possibly lead to administrative
liability. Moreover, as name practitioner of the law office,
Atty. Inocentes is tasked with the responsibility to make
reasonable efforts to ensure that all lawyers in the firm should
act in conformity to the Code of Professional
Responsibility.[22] It is not without reason or consequence
that Atty. Inocentes’s name is that which was used as the
official designation of their law office. With regard to the
actual existence of Atty. Inocentes’s supervisory capacity over
Atty. Camano’s activities, the IBP Investigating
Commissioner based the same on his finding that Atty.
Inocentes received periodic reports from Atty. Camano on the
latter’s dealings with complainant. This finding is the linchpin
of Atty. Inocentes’s supervisory capacity over Atty. Camano
and liability by virtue thereof. Law practitioners are acutely
aware of the responsibilities that are naturally taken on by
partners and supervisory lawyers over the lawyers and non-
lawyers of the law office. We have held that lawyers are
administratively liable for the conduct of their employees in
failing to timely file pleadings.[23] In Rheem of the
Philippines, Inc., et al. v. Zoilo R. Ferrer, et al.,[24] partners in
a law office were admonished for the contemptuous language
in a pleading submitted to court despite, and even due to, the
fact that the pleading was not passed upon by any of the
partners of the office. We held therein that partners are duty
bound to provide for efficacious control of court pleadings and
other court papers that carry their names or the name of the
law firm.We now hold further that partners and practitioners
who hold supervisory capacities are legally responsible to
exert ordinary diligence in apprising themselves of the
comings and goings of the cases handled by the persons over
which they are exercising supervisory authority and in
exerting necessary efforts to foreclose the occurrence of
violations of the Code of Professional Responsibility by
persons under their charge. Nonetheless, the liability of the
supervising lawyer in this regard is by no means equivalent to
that of the recalcitrant lawyer. The actual degree of control
and supervision exercised by said supervising lawyer
varies, inter alia, according to office practice, or the length of
experience and competence of the lawyer supervised. Such
factors can be taken into account in ascertaining the proper
penalty. Certainly, a lawyer charged with the supervision of a
fledgling attorney prone to rookie mistakes should bear greater
responsibility for the culpable acts of the underling than one
satisfied enough with the work and professional ethic of the
associate so as to leave the latter mostly to his/her own
devises. While Atty. Camano’s irregular acts perhaps evince a
need for greater supervision of his legal practice, there is no
question that it has been Atty. Inocentes’ practice to allow
wide discretion for Atty. Camano to practice on his own. It
does constitute indifference and neglect for Atty. Inocentes to
fail to accord even a token attention to Atty. Camano’s
conduct which could have brought the then impending
problem to light. But such is not equivalent to the proximate
responsibility for Atty. Camano’s acts. Moreover, it appears
from the records that Atty. Inocentes is a former judge and a
lawyer who, as of yet, is in good standing and it is the first
time in which Atty. Inocentes has been made to answer
vicariously for the misconduct of a person under his charge.
An admonition is appropriate under the circumstances.
WHEREFORE, PREMISES CONSIDERED, the Petition is
hereby GRANTED. The Resolution dated 16 April 2004 is
AFFIRMED in respect of the sanction meted out on Atty.
Camano. Atty. Inocentes is hereby ADMONISHED to
monitor more closely the activities of his associates to make
sure that the same are in consonance with the Code of
Professional Responsibility with the WARNING that
repetition of the same or similar omission will be dealt with
more severely.
No pronouncement as to costs.
SO ORDERED.
CASE NO. 5
VIRGINIA VILLAFLORES, A. C. No. 7504
Before Us is a Complaint[1] for Disbarment filed by
complainant Virginia Villaflores against respondent Atty.
Sinamar Limos, charging the latter with Gross Negligence and
Dereliction of Duty. Complainant Virginia Villaflores is the
defendant in Civil Case No. 1218-BG entitled, “Spouses
Sanchez represented by Judith Medina vs. Spouses
Villaflores,” filed before the Regional Trial Court (RTC) of
Bauang, La Union, Branch Receiving an unfavorable
judgment, complainant sought the help of the Public
Attorney’s Office (PAO) to appeal her case to the Court of
Appeals. The PAO filed for her a Notice of Appeal with the
RTC. On 1 September 2004, complainant received a copy of a
Notice[2] from the Court of Appeals requiring her to file her
appellant’s brief within 45 days from receipt thereof.
Immediately thereafter, complainant approached respondent,
who had previously handled her son’s case, to file on her
behalf the required appellant’s brief. Since respondent agreed
to handle the appeal, complainant handed to respondent on 8
September 2004 the amount of P10,000.00 as partial payment
of the latter’s acceptance fee of P20,000.00, together with the
entire records of the case. The following day, on 9 September
2004, complainant paid the balance of respondent’s
acceptance fee in the amount of P10,000.00. These payments
were duly receipted and acknowledged[3] by the respondent.
On 21 September 2004, an Employment Contract[4] was
executed between complainant and respondent whereby the
former formally engaged the latter’s professional services.
Upon the execution of said contract, complainant again paid
the respondent the amount of P2,000.00 for miscellaneous
expenses.[5]On 14 January 2005, complainant received a copy
of a Resolution[6] dated 6 January 2005 issued by the Court of
Appeals dismissing her appeal for failure to file her
appellant’s brief within the reglementary period. Thus, on 17
January 2005, complainant went to respondent’s office but
failed to see respondent. After several unsuccessful attempts to
talk to the respondent, complainant went to Manila on 18
January 2005 to seek help from another lawyer who agreed to
handle the case for her. On 19 January 2005, complainant
went back to the respondent’s office to retrieve the records of
her case. Respondent allegedly refused to talk to her.
Aggrieved by respondent’s actuations, complainant filed the
instant administrative complaint against respondent. In her
Answer,[7] respondent admitted her issuance of the
acknowledgment receipts for the aggregate amount
ofP22,000.00, the execution of the Employment Contract
between her and complainant, and the issuance by the Court of
Appeals of the Notice to File Appellant’s Brief and Resolution
dated 6 January 2005. She, however, denied all other
allegations imputed against her. Respondent argued that the
non-filing of the appellant’s brief could be attributed to the
fault of the complainant who failed to inform her of the exact
date of receipt of the Notice to File Appellant’s Brief from
which she could reckon the 45-day period to file the same.
Complainant allegedly agreed to return to respondent once she
had ascertained the actual date of receipt of said Notice, but
she never did. Complainant supposedly also agreed that in the
event she could not give the exact date of receipt of the
Notice, respondent would just wait for a new Order or
Resolution from the Court of Appeals before she would file
the appropriate pleading. Respondent further contended that
she had, in fact, already made preliminary study and initial
research of complainant’s case. Pursuant to the complaint, 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 17 June 2005. On 11
April 2006, Investigating Commissioner Acerey C. Pacheco
submitted his Report and Recommendation,[8] finding
respondent liable for gross negligence and recommending the
imposition upon her of the penalty of one year suspension, to
wit: WHEREFORE, it is respectfully recommended that
herein respondent be declared guilty of gross negligence in
failing to file the required appellants’ brief for which act she
should be suspended from the practice of law for a period of
one (1) year. Also, it is recommended that the respondent be
ordered to return the amount of P22,000.00 that she received
from the complainant. Thereafter, the IBP Board of Governors
passed Resolution[9] No. XVII-2006-584 dated 15 December
2006, approving 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 Respondent’s gross negligence in failing to
file the required appellant’s brief, Atty. Sinamar E. Limos is
hereby SUSPENDED from the practice of law for three (3)
months with Warning that a repetition of similar conduct will
be dealt with more severely and ORDERED TO RETURN the
amount ofP22,000.00 she received from complainant. The
core issue in this administrative case is whether the respondent
committed culpable negligence in handling complainant’s case
as would warrant disciplinary action. After a careful review of
the records and evidence, we find no cogent reason to deviate
from the findings and the recommendation of the IBP Board
of Governors and, thus, sustain the same. Respondent’s
conduct in failing to file the appellant’s brief for complainant
before the Court of Appeals falls below the standards exacted
upon lawyers on dedication and commitment to their client’s
cause. The relation of attorney and client begins from the time
an attorney is retained.[10] To establish the professional
relation, it is sufficient that the advice and assistance of an
attorney are sought and received in any manner pertinent to
his profession.[11]It must be noted that as early as 8
September 2004, respondent already agreed to take on
complainant’s case, receiving from the latter partial payment
of her acceptance fee and the entire records of complainant’s
case. The very next day, 9 September 2004, complainant paid
the balance of respondent’s acceptance fee. Respondent
admitted her receipt of P20,000.00 as acceptance fee for the
legal services she is to render to complainant and P2,000.00
for the miscellaneous expenses she is to incur in handling the
case, and the subsequent execution of the employment
contract between her and complainant. Hence, it can be said
that as early as 8 September 2004, respondent’s rendition of
legal services to complainant had commenced, and from then
on, she should start protecting the complainant’s interests.
The employment contract between respondent and
complainant already existed as of 8 September 2004, although
it was only reduced into writing on 21 September 2004. In
short, respondent’s acceptance of the payment for her
professional fees and miscellaneous expenses, together with
the records of the case, effectively bars her from disclaiming
the existence of an attorney-client relationship between her
and complainant. No lawyer is obliged to advocate for every
person who may wish to become his client, but once he agrees
to take up the cause of a client, the lawyer owes fidelity to
such cause and must be mindful of the trust and confidence
reposed in him.[12] Among the fundamental rules of ethics is
the principle that an attorney who undertakes an action
impliedly stipulates to carry it to its termination, that is, until
the case becomes final and executory.
As ruled in Rabanal v. Tugade[13]:
Once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must always be mindful of the
trust and confidence reposed in him. He must serve the client
with competence and diligence, and champion the latter’s
cause with wholehearted fidelity, care, and devotion. Elsewise
stated, he owes entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his client’s
rights, and the exertion of his utmost learning and ability to
the end that nothing be taken or withheld from his client, save
by the rules of law, legally applied. This simply means that
his client is entitled to the benefit of any and every remedy
and defense that is authorized by the law of the land and he
may expect his lawyer to assert every such remedy or
defense. If much is demanded from an attorney, it is because
the entrusted privilege to practice law carries with it the
correlative duties not only to the client but also to the court, to
the bar, and to the public. A lawyer who performs his duty
with diligence and candor not only protects the interest of his
client; he also serves the ends of justice, does honor to the bar,
and helps maintain the respect of the community to the legal
profession. Respondent’s defense that complainant failed to
inform her of the exact date when to reckon the 45 days within
which to file the appellant’s brief does not inspire belief or, at
the very least, justify such failure. If anything, it only shows
respondent’s cavalier attitude towards her client’s cause. A
case in point is Canoy v. Ortiz,[14] where the Court ruled that
the lawyer’s failure to file the position paper was per se a
violation of Rule 18.03 of the Code. There, the Court ruled
that the lawyer could not shift the blame to his client for
failing to follow up his case because it was the lawyer’s duty
to inform his client of the status of cases. Respondent cannot
justify her failure to help complainant by stating that “after
receipt of part of the acceptance fee, she did not hear anymore
from complainant.” The persistence displayed by the
complainant in prosecuting this complaint belies her lack of
enthusiasm in fighting for her rights, as alleged by respondent.
This Court has emphatically ruled that the trust and confidence
necessarily reposed by clients requires in the attorney a high
standard and appreciation of his duty to his clients, his
profession, the courts and the public. Every case a lawyer
accepts deserves his full attention, diligence, skill and
competence, regardless of its importance and whether he
accepts it for a fee or for free. Certainly, a member of the Bar
who is worth his title cannot afford to practice the profession
in a lackadaisical fashion. A lawyer’s lethargy from the
perspective of the Canons is both unprofessional and
unethical.[15] A lawyer should serve his client in a
conscientious, diligent and efficient manner; and he should
provide a quality of service at least equal to that which
lawyers generally would expect of a competent lawyer in a
like situation. By agreeing to be his client’s counsel, he
represents that he will exercise ordinary diligence or that
reasonable degree of care and skill having reference to the
character of the business he undertakes to do, to protect the
client’s interests and take all steps or do all acts necessary
therefor, and his client may reasonably expect him to
discharge his obligations diligently.[16] Respondent has
obviously failed to measure up to the foregoing standards. It
may be true that the complainant shares the responsibility for
the lack of communication between her and respondent, her
counsel. Respondent, however, should not have depended
entirely on the information her client gave or at the time the
latter wished to give it. Respondent, being the counsel, more
than her client, should appreciate the importance of complying
with the reglementary period for the filing of pleadings and
know the best means to acquire the information sought. Had
she made the necessary inquiries, respondent would have
known the reckoning date for the period to file appellant’s
brief with the Court of Appeals. As a lawyer representing the
cause of her client, she should have taken more control over
her client’s case. Respondent’s dismal failure to comply with
her undertaking is likewise evident from the fact that up until
19 January 2005, when complainant retrieved the entire
records of her case, and more than four months from the time
her services were engaged by complainant, respondent still
had not prepared the appellant’s brief. Rule 18.03 of the Code
of Professional Responsibility for Lawyers states: A lawyer
shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable. In
this case, by reason of respondent’s negligence, the
complainant suffered actual loss. Complainant faced the risk
of losing entirely her right to appeal and had to engage the
services of another lawyer to protect such a right. This Court
will not countenance respondent’s failure to observe the
reglementary period to file the appellant’s brief. Counsels are
sworn to protect the interests of their clients and in the
process, should be knowlegeable about the rules of procedure
to avoid prejudicing the interests of their clients or worse,
compromising the integrity of the courts. Ignorance of the
procedural rules on their part is tantamount to inexcusable
negligence.[17] However, the matter before us does not even
call for counsel’s knowledge of procedural rules, but merely
her managerial skills in keeping track of deadlines for filing
necessary pleadings, having difficulty with which, she could
have always opted to timely withdraw from the case in order
not to prejudice further her client’s interest. The failure of
respondent to file the appellant’s brief for complainant within
the reglementary period constitutes gross negligence in
violation of the Code of Professional Responsibility. In Perla
Compania de Seguros, Inc. v. Saquilabon,[18] this Court held:
An attorney is bound to protect his client’s interest to the best
of his ability and with utmost diligence. (Del Rosario v. Court
of Appeals, 114 SCRA 159) A failure to file brief for his
client certainly constitutes inexcusable negligence on his part.
(People v. Villar, 46 SCRA 107) The respondent has indeed
committed a serious lapse in the duty owed by him to his client
as well as to the Court not to delay litigation and to aid in the
speedy administration of justice. (People v. Daban, 43 SCRA
185; People v. Estocada, 43 SCRA 515). All told, we rule and
so hold that on account of respondent’s failure to protect the
interest of complainant, respondent indeed violated Rule
18.03, Canon 18 of the Code of Professional Responsibility.
Respondent is reminded that the practice of law is a special
privilege bestowed only upon those who are competent
intellectually, academically and morally. This Court has been
exacting in its expectations for the members of the Bar to
always uphold the integrity and dignity of the legal profession
and refrain from any act or omission which might lessen the
trust and confidence of the public. In People v. Cawili,[19] we
held that the failure of counsel to submit the brief within the
reglementary period is an offense that entails disciplinary
action. People v. Villar, Jr.[20]characterized a lawyer’s
failure to file a brief for his client as inexcusable neglect.
In Blaza v. Court of Appeals,[21] we held that the filing of a
brief within the period set by law is a duty not only to the
client, but also to the court. Perla Compania de Seguros, Inc.
v. Saquilabon[22] reiterated Ford v. Daitol[23] and In re:
Santiago F. Marcos[24] in holding that an attorney’s failure to
file a brief for his client constitutes inexcusable negligence. In
cases involving a lawyer’s failure to file a brief or other
pleadings before an appellate court, we did not hesitate to
suspend the erring member of the Bar from the practice of law
for three months,[25] six months,[26] or even disbarment in
severely aggravated cases.[27] WHEREFORE, the resolution
of the IBP Board of Governors approving and adopting the
report and recommendation of the Investigating Commissioner
is hereby AFFIRMED. Accordingly, respondent ATTY.
SINAMAR E. LIMOS is hereby SUSPENDEDfrom the
practice of law for a period of THREE (3) MONTHS, with a
stern warning that a repetition of the same or similar
wrongdoing will be dealt with more severely. Furthermore,
respondent is hereby ORDERED to return the amount of
Twenty-Two Thousand Pesos (P22,000.00), which she
received from complainant Virginia Villaflores. Let a copy of
this decision be attached to respondent’s personal record with
the Office of the Bar Confidant and copies be furnished to all
chapters of the Integrated Bar of the Philippines and to all
courts of the land.
SO ORDERED.
CASE NO. 6
In Hilado v. David, which we quote below, the Court advised
lawyers to be like Caesar’s wife – to be pure and to appear to
be so.
“This stern rule is designed not alone to prevent the dishonest
practitioner from fraudulent conduct, but as well as to protect
the honest lawyer from unfounded suspicion of unprofessional
practice. It is founded on principles of public policy, on good
taste. As has been said in another case, the question is not
necessarily one of the rights of the parties, but as to whether
the attorney has adhered to proper professional standard. With
these thoughts in mind, it behooves attorneys, like Caesar’s
wife, not only to keep inviolate the client’s confidence, but
also to avoid the appearance of treachery and double-dealing.
Only thus can litigants be encouraged to entrust their secrets to
their attorneys which is of paramount importance in the
administration of justice.” Because of his divided allegiance,
respondent has eroded, rather than enhanced, the public
perception of the legal profession. His divided loyalty
constitutes malpractice for which he may be suspended,
following Section 27, Rule 138 of the Rules of Court, which
provides: “SEC. 27. Disbarment or suspension of Attorneys by
Supreme Court, grounds therefor. – Any 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 wilful disobedience
appearing as an attorney for a party to a case without authority
so to do. x x x.” A survey of cases involving conflicting
interests on the part of counsel reveals that the Court has
imposed on erring attorneys either a reprimand, or a
suspension from the practice of law from five (5) months to as
high as two (2) years.
CASE NO. 7
[A.C. No. 5020. December 18, 2001]
ROSARIO JUNIO, complainant, vs. ATTY. SALVADOR
M. GRUPO, respondent.
This is a complaint for disbarment filed against Atty. Salvador
M. Grupo for malpractice and gross misconduct. Complainant
Rosario N. Junio alleged that
3. Sometime in 1995, [she] engaged the services of
[respondent], then a private practitioner, for the redemption of
a parcel of land covered by Transfer Certificate of Title No.
20394 registered in the name of her parents, spouses Rogelio
and Rufina Nietes, and located at Concepcion, Loay, Bohol.
4. On 21 August 1995, [complainant] entrusted to
[respondent] the amount of P25,000.00 in cash to be used in
the redemption of the aforesaid property. Respondent
received the said amount as evidenced by an acknowledgment
receipt, a copy of which is being hereto attached as Annex
“A”.
5. Notwithstanding the foregoing and for no valid reason,
respondent did not redeem the property; as a result of which
the right of redemption was lost and the property was
eventually forfeited.
6. Because of respondent’s failure to redeem the property,
complainant had demanded [the] return of the money which
she entrusted to the former for the above-stated purpose.
7. Despite repeated demands made by the complainant and
without justifiable cause, respondent has continuously refused
to refund the money entrusted to him.[1]
In his Answer, petitioner admitted receiving the amount
in question for the purpose for which it was given. However,
he alleged that
6. The subject land for which the money of complainant was
initially intended to be applied could really not be redeemed
anymore . . ;
7. Complainant knew the mortgage agreement between her
parents and the mortgage-owner had already expired, and what
respondent was trying to do was a sort of [a] desperate, last-
ditch attempt to persuade the said mortgagee to relent and give
back the land to the mortgagors with the tender of redemption;
but at this point, the mortgagee simply would not budge
anymore. For one reason or another, he would no longer
accept the sum offered;
8. By the time that complainant was to return to Manila, it
was already a foregone matter that respondent’s efforts did not
succeed. And so, when transaction failed, respondent
requested the complainant that he be allowed, in the
meantime, to avail of the money because he had an urgent
need for some money himself to help defray his children’s
educational expenses. It was really a personal request, a
private matter between respondent and complainant, thus,
respondent executed a promissory note for the amount, a copy
of which is probably still in the possession of the complainant.
9. . . . [T]he family of the complainant and that of the
respondent were very close and intimate with each
other. Complainant, as well as two of her sisters, had served
respondent’s family as household helpers for many years
when they were still in Manila, and during all those times they
were treated with respect, affection, and equality. They were
considered practically part of respondent’s own family. That is
why, when complainant requested . . . assistance regarding the
problem of the mortgaged property which complainant wanted
to redeem, respondent had no second-thoughts in extending a
lending hand . . . . Respondent did not ask for any fee. His
services were purely gratuitous; his acts [were] on his own and
by his own. It was more than pro bono; it was not even for
charity; it was simply an act of a friend for a friend. It was
just lamentably unfortunate that his efforts failed. Of course,
respondent accepts his fault, because, indeed, there were
occasions when complainant’s sisters came to respondent to
ask for the payment in behalf of complainant, and he could not
produce the money because the circumstances somehow, did
not allow it. [I]t does not mean that respondent will not pay,
or that he is that morally depraved as to wilfully and
deliberately re[nege] in his obligation towards the
complainant.[2]Complainant filed a reply denying that
respondent informed her of his failure to redeem the property
and that respondent requested her to instead lend the money
to him.[3] The case was thereafter referred to the Integrated Bar
of the Philippines (IBP) for investigation, report, and
recommendation. However, while two hearings were set for
this purpose, both were postponed at the instance of
respondent. For this reason, on August 28, 2000, complainant
asked the Investigating Commissioner[4] to consider the case
submitted for decision on the basis of the pleadings theretofore
filed. Respondent was required to comment on complainant’s
motion, but he failed to do so. Consequently, the case was
considered submitted for resolution. In his report, dated
January 5, 2001, the Investigating Commissioner found
respondent liable for violation of Rule 16.04 of the Code of
Professional Responsibility which forbids lawyers from
borrowing money from their clients unless the latter’s interests
are “protected by the nature of the case or by independent
advice.” The Investigating Commissioner found that
respondent failed to pay his client’s money. However, in view
of respondent’s admission of liability and “plea for
magnanimity,” the Investigating Commissioner recommended
that respondent be simply reprimanded and ordered to pay the
amount of P25,000.00 loan plus interest at the legal rate. In its
Resolution No. XIV-2001-183, dated April 29, 2001, the IBP
Board of Governors adopted and approved the Investigating
Commissioner’s findings. However, it ordered [R]espondent
. . . suspended indefinitely from the practice of law for the
commission of an act which falls short of the standard of the
norm of conduct required of every attorney and . . . ordered
[him] to return to the complainant the amount of P25,000.00
plus interest at the legal rate from the time the said amount
was misappropriated, until full payment; provided that the
total suspension shall be at least one (1) year from the date of
said full payment. On July 4, 2001, respondent filed a motion
for reconsideration alleging that
(a) there was no actual hearing of the case wherein respondent
could have fully ventilated and defended his position;
(b) the subject Resolution gravely modified the Report and
Recommendation of the Trial Commissioner, Hon. Pedro
Magpayo, Jr., . . . such that the resultant sanctions that are
ordered imposed are too leonine, unjust and cruel;
(c) that the factual circumstances attending the matter which
gave rise to the complaint were not rightly or fairly
appreciated.[5]
He argues that the Court should adopt the report and
recommendation of the IBP Investigating Commissioner. In
its resolution of August 15, 2001, the Court resolved to treat
respondent’s motion for reconsideration as a petition for
review of IBP Resolution No. XIV 2001-183 and required
complainant to comment on the petition. In her comment,
complainant states that her primary interest is to recover the
amount of P25,000.00 with interest and that she is leaving it to
the Court to decide whether respondent deserves the penalty
recommended by the IBP.[6] The Court resolves to partially
grant the petition. In his report and recommendation,
Investigating Commissioner Magpayo, Jr. made the following
findings: In his Answer, the respondent ADMITS all the
allegations in paragraph 4 of the complaint which avers:
4. On 21 August 1995, complainant entrusted to respondent
the amount of P25,000.00 in cash to be used in the redemption
of the aforesaid property (parcel of land covered by TCT No.
20394 registered in the name of complainant’s parents located
at Concepcion, Loay, Bohol). Respondent received the said
amount as evidenced by an acknowledgment receipt (Annex
A).
By way of confession and avoidance, the respondent, . . .
however, contended that when the mortgagee refused to accept
the sum tendered as the period of redemption had already
expired, he requested the complainant to allow him in the
meantime to use the money for his children’s educational
expenses[,] to which request the complainant allegedly
acceded and respondent even executed a promissory note
(please see 4th par. of Annex “B” of complaint). Respondent
takes further refuge in the intimate and close relationship
existing between himself and the complainant’s family on the
basis of which his legal services were purely gratuitous or
“simply an act of a friend for a friend” with “no consideration
involved.” Unfortunately, his efforts to redeem the foreclosed
property, as already stated, did not produce the desired result
because the mortgagee “would not budge anymore” and
“would not accept the sum offered.” Thus, the respondent
concluded that there was, strictly speaking, no attorney-client
[relationship] existing between them. Rather, right from the
start[,] everything was sort of personal, he added. Granting to
the respondent the benefit of the doubt, we shall assume that
there was in reality a loan in the amount of P25,000.00. This
is likewise confirmed by the execution of a promissory note
on 12 December 1996 by the respondent who “undertook to
pay Mrs. Junio on or before January 1997” (Annex B of
complaint). Moreover, the demand letter of 12 March 1998
(Annex B) mentions of “reimbursement of the sum received”
and interest of “24% per annum until fully paid” giving the
impression that the funds previously intended to be used for
the repurchase of a certain property (Annex A of complaint)
was converted into a loan with the consent of the complainant
who gave way to the request of the respondent “to help defray
his children’s educational expenses” (par. 8 of Answer). Be
that as it may, the duty and obligation to repay the loan
remains unshaken. Having utilized the sum to fulfill his
“urgent need for some money,” it is but just and proper that he
return the amount borrowed together with interest.
Five (5) years had already passed since respondent retained had. If a person, in respect to his business affairs or troubles
the cash for his own personal use. But notwithstanding the of any kind, consults with his attorney in his professional
same and his firm promise “to pay Mrs. Junio on or before capacity with the view to obtaining professional advice or
January 1997” he has not demonstrated any volition to settle assistance, and the attorney voluntarily permits or acquiesces
his obligation to his creditor[,] although admittedly “there in such consultation, then the professional employment must
w[ere] occasions when complainant’s sister came to be regarded as established . . . .
respondent to ask for the payment in behalf of complainant,”
worse, “the passage of time made respondent somehow forgot Considering the foregoing, the Investigating
about the obligation.” A lawyer shall not borrow money from Commissioner’s recommendation to impose on respondent the
his client unless the client’s interests are fully protected by the penalty of reprimand and restitution of the amount loaned by
nature of the case or by independent advice (Rule 16.04, Code him is clearly inadequate. On the other hand, the penalty of
of Professional Responsibility). This rule is intended to indefinite suspension with restitution imposed by the IBP
prevent the lawyer from taking advantage of his influence over Board of Governors is too harsh in view of respondent’s
the client. This rule is especially significant in the instant case apparent lack of intent to defraud complainant and of the fact
where the respondent enjoys an immense ascendancy over the that this appears to be his first administrative transgression. It
complainant who, “as well as two of his sisters, had served is the penalty imposed in Igual v. Javier[10] which applies to
respondent’s family as household helpers for many years.” this case. In that case, this Court ordered the respondent
Having gained dominance over the complainant by virtue of suspended for one month from the practice of law and directed
such long relation of master and servant, the respondent took him to pay the amount given him by his clients within 30 days
advantage of his influence by not returning the money from notice for his failure to return the money in question
entrusted to him. Instead, he imposed his will on the notwithstanding his admission that he did not use the money
complainant and borrowed her funds without giving adequate for the filing of the appellee’s brief, as agreed by them,
security therefor and mindless of the interest of the because of an alleged quarrel with his clients.
complainant. In the light of the foregoing, . . . respondent has
committed an act which falls short of the standard of the norm Anent petitioner’s allegation regarding the lack of
of conduct required of every attorney. If an ordinary borrower hearing during the IBP investigation, suffice it to say that he
of money is required by the law to repay the loan failing waived such right when he failed to comment on petitioner’s
which he may be subjected to court action, it is more so in the motion to submit the case for resolution on the basis of the
case of a lawyer whose conduct serves as an example.[7] It pleadings theretofore filed despite due notice to him, not to
would indeed appear from the records of the case that mention the fact that it was he who had requested the
respondent was allowed to borrow the money previously postponement of the two hearings scheduled by the
entrusted to him by complainant for the purpose of securing Investigating Commissioner.
the redemption of the property belonging to complainant’s
WHEREFORE, the Court finds petitioner guilty of
parents. Respondent, however, did not give adequate security
violation of Rule 16.04 of the Code of Professional
for the loan and subsequently failed to settle his
Responsibility and orders him suspended from the practice of
obligation. Although complainant denied having loaned the
law for a period of one (1) month and to pay to respondent,
money to respondent, the fact is that complainant accepted the
within 30 days from notice, the amount of P25,000.00 with
promissory note given her by respondent on December 12,
interest at the legal rate, computed from December 12, 1996.
1996. In effect, complainant consented to and ratified
respondent’s use of the money. It is noteworthy that SO ORDERED.
complainant did not attach this promissory note to her
complaint nor explain the circumstances surrounding its
execution. She only mentioned it in her demand letter of
March 12, 1998 (Annex B), in which she referred to
respondent’s undertaking to pay her the P25,000.00 on or
before January 1997. Under the circumstances and in view of
complainant’s failure to deny the promissory note, the Court is
constrained to give credence to respondent’s claims that the
money previously entrusted to him by complainant was later
converted into a loan. Respondent’s liability is thus not for
misappropriation or embezzlement but for violation of Rule
16.04 of the Code of Professional Responsibility which
forbids lawyers from borrowing money from their clients
unless the latter’s interests are protected by the nature of the
case or by independent advice. In this case, respondent’s
liability is compounded by the fact that not only did he not
give any security for the payment of the amount loaned to
him but that he has also refused to pay the said amount. His
claim that he could not pay the loan “because circumstances . .
. did not allow it” and that, because of the passage of time, “he
somehow forgot about his obligation” only underscores his
blatant disregard of his obligation which reflects on his
honesty and candor. A lawyer is bound to observe candor,
fairness, and loyalty in all his dealings and transactions with
his client.[8] Respondent claims that complainant is a close
personal friend and that in helping redeem the property of
complainant’s parents, he did not act as a lawyer but as a
friend, hence there is no client-attorney relationship between
them. This contention has no merit. As explained in Hilado
v. David, [9]To constitute professional employment it is not
essential that the client should have employed the attorney
professionally on any previous occasion . . . It is not necessary
that any retainer should have been paid, promised, or charged
for; neither is it material that the attorney consulted did not
afterward undertake the case about which the consultation was