A.C. No. 6057. June 27, 2006.*

PETER T. DONTON, complainant, vs. ATTY. EMMANUEL O. TANSINGCO, respondent.

Legal Ethics; Attorneys; A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies disciplinary action against the lawyer.—The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code. A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold and obey. A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies disciplinary action against the lawyer.

Same; Same; The act of a lawyer in using his knowledge of the law to achieve an unlawful end amounts to malpractice in his office, for which he may be suspended.—Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Respondent used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

Alentajan Law Office for complainant.

CARPIO, J.:

The Case

This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco (“respondent”) for serious misconduct and deliberate violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional Responsibility (“Code”).

The Facts

In his Complaint dated 20 May 2003, Peter T. Donton (“complainant”) stated that he filed a criminal complaint for estafa thru falsification of a public document4 against Duane O. Stier (“Stier”), Emelyn A. Maggay (“Maggay”) and respondent, as the notary public who notarized the Occupancy Agreement.

The disbarment complaint arose when respondent filed a counter-charge for perjury5 against complainant. Respondent, in his affidavit-complaint, stated that:

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

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

B. Sometime in September 1995, Mr. Stier—a U.S. citizen and thereby disqualified to own real property in his name—agreed that the property be transferred in the name of Mr. Donton, a Filipino.

C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several documents that would guarantee recognition of him being the actual owner of the property despite the transfer of title in the name of Mr. Donton.

D. For this purpose, I prepared, among others, the OCCUPANCY AGREEMENT, recognizing Mr. Stier’s free and undisturbed use of the property for his residence and business operations. The OCCUPANCY AGREEMENT was tied up with a loan which Mr. Stier had extended to Mr. Donton.6

Complainant averred that respondent’s act of preparing the Occupancy Agreement, despite knowledge that Stier, being a foreign national, is disqualified to own real property in his name, constitutes serious misconduct and is a deliberate violation of the Code. Complainant prayed that respondent be disbarred for advising Stier to do something in violation of law and assisting Stier in carrying out a dishonest scheme. [Donton vs. Tansingco, 493 SCRA 1(2006)]

In his Comment dated 19 August 2003, respondent claimed that complainant filed the disbarment case against him upon the instigation of complainant’s counsel, Atty. Bonifacio A. Alentajan,7 because respondent refused to act as complainant’s witness in the criminal case against Stier and Maggay. Respondent admitted that he “prepared and notarized” the Occupancy Agreement and asserted its genuineness and due execution.

In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The IBP’s Report and Recommendation

In her Report dated 26 February 2004 (“Report”), Commissioner Milagros V. San Juan (“Commissioner San Juan”) of the IBP Commission on Bar Discipline found respondent liable for taking part in a “scheme to circumvent the constitutional prohibition against foreign ownership of land in the Philippines.” Commissioner San Juan recommended respondent’s suspension from the practice of law for two years and the cancellation of his commission as Notary Public.

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

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

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

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

The Ruling of the Court

The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code.

A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold and obey.9 A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies disciplinary action against the lawyer.10

By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified from owning real property.11 Yet, in his motion for reconsideration,12 respondent admitted that he caused the transfer of ownership to the parcel of land to Stier. Respondent, however, aware of the prohibition, quickly rectified his act and transferred the title in complainant’s name. But respondent provided “some safeguards” by preparing several documents,13 including the Occupancy Agreement, that would guarantee Stier’s recognition as the actual owner of the property despite its transfer in complainant’s name. In effect, respondent advised and aided Stier in circumventing the constitutional prohibition against foreign ownership of lands14 by preparing said documents.

Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Respondent used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended.15

In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice of law for three years for preparing an affidavit that virtually permitted him to commit concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from the practice of law for one year for preparing a contract which declared the spouses to be single again after nine years of separation and allowed them to contract separately subsequent marriages.

WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law for SIX MONTHS effective upon finality of this Decision.

Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondent’s personal record as an attorney, the Integrated Bar of the Philippines, the Department of Justice, and all courts in the country for their information and guidance.

SO ORDERED.

Re: Report on the Financial Audit Conducted on the Books of Accounts of

Atty. Raquel G. Kho, Clerk of Court IV, RTC, Oras, Eastern Samar

A.M. No. P-06–2177. April 13, 2007.*

(Formerly A.M. No. 06–4-268-RTC)

RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE BOOKS OF ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF COURT IV, REGIONAL TRIAL COURT, ORAS, EASTERN SAMAR

Court Personnel; Clerks of Court; Legal Ethics; Attorneys; Code of Professional Responsibility; A clerk of court’s failure to remit judiciary funds for over a year, an omission contrary to the mandatory provisions of OCA Circular 84–93, is a breach of his oath to obey the laws as well as the legal orders of the duly constituted authorities, and of his duties under Canon 1, Rule 1.01 of the Code of Professional Responsibility; Lawyers should always keep in mind that, although upholding the Constitution and obeying the law is an obligation imposed on every citizen, a lawyer’s responsibilities under Canon 1 mean more than just staying out of trouble with the law—as servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law, making themselves exemplars worthy of emulation.—Atty. Kho’s apparent good faith and his ready admission of the infraction, although certainly mitigating, cannot negate the fact that his failure to remit P65,000 in judiciary funds for over a year was contrary to the mandatory provisions of OCA Circular 8A-93. That omission was a breach of his oath to obey the laws as well as the legal orders of the duly constituted authorities and of his duties under Canon 1, Rule 1.01 of the Code of Professional Responsibility: CANON 1—A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES. RULE 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. It is no accident that these are the first edicts laid down in the Code of Professional Responsibility for these are a lawyer’s foremost duties. Lawyers should always keep in mind that, although upholding the Constitution and obeying the law is an obligation imposed on every citizen, a lawyer’s responsibilities under Canon 1 mean more than just staying out of trouble with the law. As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation. This, in fact, is what a lawyer’s obligation to promote respect for law and legal processes entails.

Same; Same; Same; Same; Same; Words and Phrases; By definition, any act or omission contrary to law is unlawful—it does not necessarily imply the element of criminality although it is broad enough to include it.—The least a lawyer can do in compliance with Canon 1 is to refrain from engaging in unlawful conduct. By definition, any act or omission contrary to law is unlawful. It does not necessarily imply the element of criminality although it is broad enough to include it. Thus, the presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of Rule 1.01 which specifically prohibits lawyers from engaging in unlawful conduct.

ADMINISTRATIVE MATTER in the Supreme Court. Violation of the Attorney’s Oath, Section 20(a), Rule 138 of the Rules of Court and Canon 1, Rule 1.01 of the Code of Professional Responsibility.

The facts are stated in the resolution of the Court.

R E S O L U T I O N

CORONA, J.:

In our resolution dated June 27, 2006, we found Atty. Raquel G. Kho, former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar, guilty of gross misconduct for his failure to make a timely remittance of judiciary funds in his custody as required by OCA Circular No. 8A93.1 We ordered him to pay a fine of P10,000 for his transgression. The matter did not end there, however. Because his malfeasance prima facie contravened Canon 1, Rule 1.012 of the Code of Professional Responsibility, we ordered him to show cause

why he should not be disciplined as a lawyer and as an officer of the court. Atty. Kho submitted his explanation in compliance with our directive. We shall now resolve this pending matter and bring to a close this regrettable chapter in his career as a government lawyer.

In his explanation, Atty. Kho admitted that his failure to make a timely remittance of the cash deposited with him was inexcusable. He maintained, however, that he kept the money in the court’s safety vault and never once used it for his own benefit.

Atty. Kho’s apparent good faith and his ready admission of the infraction, although certainly mitigating, cannot negate the fact that his failure to remit P65,000 in judiciary funds for over a year was contrary to the mandatory provisions of OCA Circular 8A-93. That omission was a breach of his oath to obey the laws as well as the legal orders of the duly constituted authorities3 and of his duties under Canon 1, Rule 1.01 of the Code of Professional Responsibility:

CANON 1—A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.

RULE 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

It is no accident that these are the first edicts laid down in the Code of Professional Responsibility for these are a lawyer’s foremost duties. Lawyers should always keep in mind that, although upholding the Constitution and obeying the law is an obligation imposed on every citizen, a lawyer’s responsibilities under Canon 1 mean more than just staying out of trouble with the law. As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation.4 This, in fact, is what a lawyer’s obligation to promote respect for law and legal processes entails.

The least a lawyer can do in compliance with Canon 1 is to refrain from engaging in unlawful conduct.5 By definition, any act or omission contrary to law is unlawful.6 It does not necessarily imply the element of criminality although it is broad enough to include it.7 Thus, the presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of Rule 1.01 which specifically prohibits lawyers from engaging in unlawful conduct.

Atty. Kho’s conduct was not only far from exemplary, it was unlawful as well. For this, he must be called to account. However, his candid and repentant admission of his error, his lack of intent to gain and the fact that this is his first offense should temper his culpability considerably. Under the circumstances, a fine of P5,000 should suffice.

WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of unlawful conduct in violation of the Attorney’s Oath, Section 20(a), Rule 138 of the Rules of Court, and Canon 1, Rule 1.01 of the Code of Professional Responsibility. He is ordered to pay a FINE of P5,000 within ten days from receipt of this resolution.

The Financial Management Office, Office of the Court Administrator, is hereby DIRECTED to deduct from Atty. Kho’s accrued leave credits as a former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar the fines imposed in this resolution and in the resolution dated June 27, 2006.

SO ORDERED.

Notes.—Complaints against lawyers for misconduct are normally addressed to the Supreme Court, and if the Court deems it necessary that further inquiry should be made, such as when the matter could not be resolved by merely evaluating the pleadings submitted, a referral is made to the IBP for a formal investigation of the case during which the parties are accorded an opportunity to be heard—the formal investigation is a mandatory requirement that may not be dispensed with except for valid and compelling reasons. (Arandia vs. Magalong, 386 SCRA 187 [2002])

A party cannot blame his counsel for negligence when he himself was guilty of neglect. (Amatorio vs. People, 397 SCRA 445 [2003])

——o0o—— [Re: Report on the Financial Audit Conducted on the Books of Accounts of Atty. Raquel G. Kho, Clerk of Court IV, RTC, Oras, Eastern Samar, 521 SCRA 25(2007)]

A.C. No. 6672. September 4, 2009.*

PEDRO L. LINSANGAN, complainant, vs. ATTY. NICOMEDES TOLENTINO, respondent.

Legal Ethics; Attorneys; Disbarment; Malpractice; Solicitations; Advertisements; Time and time again, lawyers are reminded that the practice of law is a profession and not a business—lawyers should not advertise their talents as merchants advertise their wares.—Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides: CANON 3 — A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY true, honest, fair, dignified and objective information or statement of facts. Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares. To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.

Same; Same; Same; Same; Same; Lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers, an actuation which constitutes malpractice, a ground for disbarment.—Rule 2.03 of the CPR provides: RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS. Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers. Such actuation constitutes malpractice, a ground for disbarment.

Same; Same; Same; Same; Same; Ambulance Chasing; Words and Phrases; Ambulance chasing is the solicitation of almost any kind of legal business by an attorney, personally or through an agent, in order to gain employment.—Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides: RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE. This rule proscribes “ambulance chasing” (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) as a measure to protect the community from barratry and champerty.

Same; Same; Same; Same; A lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.—With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services. Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office. Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.

Same; Same; Lending to Clients; The rule is that a lawyer shall not lend money to his client; Exception.—The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client.

Same; Same; Solicitations; Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.—As previously mentioned, any act of solicitation constitutes malpractice which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment. Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Same; Same; Advertisements; Calling Cards; Professional calling cards may only contain the following details: (a) lawyer’s name; (b) name of the law firm with which he is connected; (c) address; (d) telephone number; and, (e) special branch of law practiced.—A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct. For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards. Professional calling cards may only contain the following details: (a) lawyer’s name; (b) name of the law firm with which he is connected; (c) address; (d) telephone number; and, (e) special branch of law practiced.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the resolution of the Court.

R E S O L U T I O N

CORONA, J.:

This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients2 to transfer legal representation. Respondent promised them financial assistance3 and expeditious collection on their claims.4 To induce them to hire his services, he persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit5 of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000. Complainant also attached “respondent’s” calling card:6

Front

NICOMEDES TOLENTINO

LAW OFFFICE

CONSULTANCY & MARITIME SERVICES

W/ FINANCIAL ASSISTANCE

Fe Marie L. Labiano

Paralegal

1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820

6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821

Grace Park, Caloocan City Cel.: (0926) 2701719

Back

SERVICES OFFERED:

CONSULTATION AND ASSISTANCE

TO OVERSEAS SEAMEN

REPATRIATED DUE TO ACCIDENT,

INJURY, ILLNESS, SICKNESS, DEATH

AND INSURANCE BENEFIT CLAIMS

ABROAD.

(emphasis supplied)

Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.7

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8

Based on testimonial and documentary evidence, the CBD, in its report and recommendation,9 found that respondent had encroached on the professional practice of complainant, violating Rule 8.0210 and other canons11 of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 13812 of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty.

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

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides:

CANON 3 — A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares.13 To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called.14

Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers.15 Such actuation constitutes malpractice, a ground for disbarment.16

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE.

This rule proscribes “ambulance chasing” (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment)17 as a measure to protect the community from barratry and champerty.18

Complainant presented substantial evidence19 (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits.

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

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s word that respondent could produce a more favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.20 Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office.21 Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04:

“Rule 16.04 — A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.”

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client.

The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected.22 It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome.23 Either of these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause.24

As previously mentioned, any act of solicitation constitutes malpractice25 which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct.27 For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer’s name;

(b) name of the law firm with which he is connected;

(c) address;

(d) telephone number and

(e) special branch of law practiced.28

Labiano’s calling card contained the phrase “with financial assistance.” The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and distribution of Labiano’s calling cards.

WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts.

SO ORDERED.

Puno (C.J., Chairperson), Carpio, Leonardo-De Castro and Bersamin, JJ., concur.

Atty. Nicomedes Tolentino suspended from practice of law for one (1) year for violation of Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of Code of Professional Responsibility and Section 27, Rule 138 Rules of Court, with stern warning against repetition of similar acts.

Notes.—The acts of a judge of posting advertisements for restaurant personnel on the court bulletin board, using his court address to receive the applications, and of screening applicants in his court constitute involvement in private business and improper use of office facilities for the promotion of the family business in violation of the Code of Judicial Ethics. (Dionisio vs. Escano, 302 SCRA 411 [1999])

The act of a judge in circulating calling cards containing self-laudatory statements constitutive of simple misconduct in violation of Canon 2, Rule 2.02 of the Code of Judicial Conduct where said judge was not motivated by any corrupt motive but a persistent and unquenchable thirst for recognition. Concededly, the need for recognition is an all too human flaw and judges do not cease to be human upon donning the judicial robe. Considering, however, the proscription against judges seeking publicity for personal vainglory, they are held to a higher standard as they must act within the confines of the code they swore to observe. As to the charge that Judge Floro, through his branch clerk of court, had been announcing in open court his qualifications, such is likewise violative of Canon 2, Rule 2.02 of the Code of Judicial Conduct as it smacks of unnecessary publicity. Judges should not use the courtroom as platform for announcing their qualifications especially to an audience of lawyers and litigants who very well might interpret such publicity as a sign of insecurity. (Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 [2006])

A.C. No. 8243. July 24, 2009.*

ROLANDO B. PACANA, JR., complainant, vs. ATTY. MARICEL PASCUAL-LOPEZ, respondent.

Legal Ethics; Attorneys; Disbarment; Conflict of Interest; The prohibition against conflict of interest is founded on principles of public policy, good taste and, more importantly, upon necessity; In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points, which knowledge must be considered sacred and guarded with care.—Rule 15.03, Canon 15 of the Code of Professional responsibility provides: Rule 15.03—A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts. This prohibition is founded on principles of public policy, good taste and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double—dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice. It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.

Same; Same; Same; Attorney-Client Relationships; Respondent lawyer must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of an investment company, eventually led to the establishment of a lawyer-client relationship.—Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,” precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.

Same; Same; Same; Same; The absence of a written contract will not preclude the finding that there was a professional relationship between the parties—documentary formalism is not an essential element in the employment of an attorney as the contract may be express or implied.—Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said: The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession.

Same; Same; Same; Same; Tests; The test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client,” as well as where the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection, and another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.—In Hornilla v. Atty. Salunat (405 SCRA 220 [2003]), we explained the concept of conflict of interest, thus: There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the

acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.

Same; Same; Same; A member of the Bar is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the Integrated Bar of the Philippines (IBP) Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.—Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.

Same; Same; Same; Withdrawal of Membership; An administrative case against a lawyer may not be dismissed or rendered moot and academic by her act of voluntarily terminating her membership in the Bar regardless of the reason for doing so—to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability.—Respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her. The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions. The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.

ADMINISTRATIVE CASE in the Supreme Court. Flagrant Violation of the Provisions of the Code of Professional Responsibility.

The facts are stated in the opinion of the Court.

Chato & Vinzons-Chato for complainant.

Jose Mari S. Velez, Jr. for respondent.

PER CURIAM:

This case stems from an administrative complaint1 filed by Rolando Pacana, Jr. against Atty. Maricel Pascual-Lopez charging the latter with flagrant violation of the provisions of the Code of Professional Responsibility.2 Complainant alleges that respondent committed acts constituting conflict of interest, dishonesty, influence peddling, and failure to render an accounting of all the money and properties received by her from complainant.

On January 2, 2002, complainant was the Operations Director for Multitel Communications Corporation (MCC). MCC is an affiliate company of Multitel International Holdings Corporation (Multitel). Sometime in July 2002, MCC changed its name to Precedent Communications Corporation (Precedent).3

According to complainant, in mid-2002, Multitel was besieged by demand letters from its members and investors because of the failure of its investment schemes. He alleges that he earned the ire of Multitel investors after becoming the assignee of majority of the shares of stock of Precedent and after being appointed as trustee of a fund amounting to Thirty Million Pesos (P30,000,000.00) deposited at Real Bank.

Distraught, complainant sought the advice of respondent who also happened to be a member of the Couples for Christ, a religious organization where complainant and his wife were also active members. From then on, complainant and respondent constantly communicated, with the former disclosing all his involvement and interests in Precedent and Precedent’s relation with Multitel. Respondent gave legal advice to complainant and even helped him prepare standard quitclaims for creditors. In sum, complainant avers that a lawyer-client relationship was established between him and respondent although no formal document was executed by them at that time. A Retainer Agreement4 dated January 15, 2003 was proposed by respondent. Complainant, however, did not sign the said agreement because respondent verbally asked for One Hundred Thousand Pesos (P100,000.00) as acceptance fee and a 15% contingency fee upon collection of the overpayment made by Multitel to Benefon,5 a telecommunications company based in Finland. Complainant found the proposed fees to be prohibitive and not within his means.6 Hence, the retainer agreement remained unsigned.7

After a few weeks, complainant was surprised to receive a demand letter from respondent8 asking for the return and immediate settlement of the funds invested by respondent’s clients in Multitel. When complainant confronted respondent about the demand letter, the latter explained that she had to send it so that her clients—defrauded investors of Multitel—would know that she was doing something for them and assured complainant that there was nothing to worry about.9

Both parties continued to communicate and exchange information regarding the persistent demands made by Multitel investors against complainant. On these occasions, respondent impressed upon complainant that she can closely work with officials of the Anti-Money Laundering Council (AMLC), the Department of Justice (DOJ), the National Bureau of Investigation (NBI), the Bureau of Immigration and Deportations (BID),10 and the Securities and Exchange Commission (SEC)11 to resolve complainant’s problems. Respondent also convinced complainant that in order to be absolved from any liability with respect to the investment scam, he must be able to show to the DOJ that he was willing to divest any and all of his interests in Precedent including the funds assigned to him by Multitel.12

Respondent also asked money from complainant allegedly for safekeeping to be used only for his case whenever necessary. Complainant agreed and gave her an initial amount of P900,000.00 which was received by respondent herself.13 Sometime thereafter, complainant again gave respondent P1,000,000.00.14 Said amounts were all part of Precedent’s collections and sales proceeds which complainant held as assignee of the company’s properties.15

When complainant went to the United States (US), he received several messages from respondent sent through electronic mail (e-mail) and short messaging system (SMS, or text messages) warning him not to return to the Philippines because Rosario Baladjay, president of Multitel, was arrested and that complainant may later on be implicated in Multitel’s failed investment system. Respondent even said that ten (10) arrest warrants and a hold departure order had been issued against him. Complainant, thereafter, received several e-mail messages from respondent updating him of the status of the case against Multitel and promised that she will settle the matter discreetly with government officials she can closely work with in order to clear complainant’s name.16 In two separate e-mail messages,17 respondent again asked money from complainant, P200,000 of which was handed by complainant’s wife while respondent was confined in Saint Luke’s Hospital after giving birth,18 and another P700,000 allegedly to be given to the NBI.19

Through respondent’s persistent promises to settle all complainant’s legal problems, respondent was able to convince complainant who was still in the US to execute a deed of assignment in favor of respondent allowing the latter to retrieve 178 boxes containing cellular phones and accessories stored in complainant’s house and inside a warehouse.20 He also signed a blank deed of sale authorizing respondent to sell his 2002 Isuzu Trooper.21

Sometime in April 2003, wary that respondent may not be able to handle his legal problems, complainant was advised by his family to hire another lawyer. When respondent knew about this, she wrote to complainant via e-mail, as follows:

Dear Butchie,

Hi! Ok ka lang? Hope you are fine. Sorry if I shocked you but I had to do it as your friend and lawyer. The charges are all non-bailable but all the same as the SEC report I told you before. The findings are the same, i.e. your company was the front for the fraud of Multitel and that funds were provided you.

I anticipated this, that is why I really pushed for a quitclaim. Rolly is willing to return the Crosswind, laptap (sic) and [P]alm [P]ilot. Manny Cancio really helped. Anthony na lang. Then, I will need the accounting of all the funds you received from the sale of the phones, every employees and directors[’] quitclaim (including yours), the funds transmitted to the clients through me, the funds you utilized, and whatelse (sic) is still unremitted, every centavo must be accounted for as DOJ and NBI can have the account opened.

I will also need the P30 M proof of deposit with Real [B]ank and the trust given [to] you. So we can inform them [that] it was not touched by you.

I have been informed by Efie that your family is looking at hiring Coco Pimentel. I know him very well as his sister Gwen is my best friend. I have no problem if you hire him but I will be hands off. I work differently kasi. In this cases (sic), you cannot be highprofile (sic) because it is the clients who will be sacrificed at the expense of the fame of the lawyer. I have to work quietly and discreetly. No funfare. Just like what I did for your guys in the SEC. I have to work with people I am comfortable with. Efren Santos will sign as your lawyer although I will do all the work. He can help with all his connections. Val’s friend in the NBI is the one is (sic) charge of organized crime who is the entity (sic) who has your warrant. My law partner was the state prosecutor for financial fraud. Basically we have it covered in all aspects and all departments. I am just trying to liquidate the phones I have allotted for you s ana (sic) for your trooper kasi whether we like it or not, we have to give this agencies (sic) to make our work easier according to Val. The funds with Mickey are already accounted in the quit claims (sic) as attorneys (sic) fees. I hope he will be able to send it so we have funds to work with.

As for your kids, legally they can stay here but recently, it is the children who (sic) the irate clients and government officials harass and kidnap to make the individuals they want to come out from hiding (sic). I do not want that to happen. Things will be really easier on my side.

Please do not worry. Give me 3 months to make it all disappear. But if you hire Coco, I will give him the free hand to work with your case. Please trust me. I have never let you down, have I? I told you this will happen but we are ready and prepared. The clients who received the phones will stand by you and make you the hero in this scandal. I will stand by you always. This is my expertise. TRUST me! That is all. You have an angel on your side. Always pray though to the best legal mind up there. You will be ok!

Candy22

On July 4, 2003, contrary to respondent’s advice, complainant returned to the country. On the eve of his departure from the United States, respondent called up complainant and conveniently informed him that he has been cleared by the NBI and the BID.23

About a month thereafter, respondent personally met with complainant and his wife and told them that she has already accumulated P12,500,000.00 as attorney’s fees and was willing to give P2,000,000.00 to complainant in appreciation for his help. Respondent allegedly told complainant that without his help, she would not have earned such amount. Overwhelmed and relieved, complainant accepted respondent’s offer but respondent, later on, changed her mind and told complainant that she would instead invest the P2,000,000.00 on his behalf in a business venture. Complainant declined and explained to respondent that he and his family needed the money instead to cover their daily expenses as he was no longer employed. Respondent allegedly agreed, but she failed to fulfill her promise.24

Respondent even publicly announced in their religious organization that she was able to help settle the ten (10) warrants of arrest and hold departure order issued against complainant and narrated how she was able to defend complainant in the said cases.25

By April 2004, however, complainant noticed that respondent was evading him. Respondent would either refuse to return complainant’s call or would abruptly terminate their telephone conversation, citing several reasons. This went on for several months.26 In one instance, when complainant asked respondent for an update on the collection of Benefon’s obligation to Precedent which respondent had previously taken charge of, respondent arrogantly answered that she was very busy and that she would read Benefon’s letter only when she found time to do so.

On November 9, 2004, fed up and dismayed with respondent’s arrogance and evasiveness, complainant wrote respondent a letter formally asking for a full accounting of all the money, documents and properties given to the latter.27 Respondent rendered an accounting through a letter dated December 20, 2004.28 When complainant found respondent’s

explanation to be inadequate, he wrote a latter expressing his confusion about the accounting.29 Complainant repeated his request for an audited financial report of all the properties turned over to her; otherwise, he will be constrained to file the appropriate case against respondent.30 Respondent replied,31 explaining that all the properties and cash turned over to her by complainant had been returned to her clients who had money claims against Multitel. In exchange for this, she said that she was able to secure quitclaim documents clearing complainant from any liability.32 Still unsatisfied, complainant decided to file an affidavit-complaint33 against respondent before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) seeking the disbarment of respondent.

In her Answer-Affidavit,34 respondent vehemently denied being the lawyer for Precedent. She maintained that no formal engagement was executed between her and complainant. She claimed that she merely helped complainant by providing him with legal advice and assistance because she personally knew him, since they both belonged to the same religious organization.35

Respondent insisted that she represented the group of investors of Multitel and that she merely mediated in the settlement of the claims her clients had against the complainant. She also averred that the results of the settlement between both parties were fully documented and accounted for.36 Respondent believes that her act in helping complainant resolve his legal problem did not violate any ethical standard and was, in fact, in accord with Rule 2.02 of the Code of Professional Responsibility.37

To bolster her claim that the complaint was without basis, respondent noted that a complaint for estafa was also filed against her by complainant before the Office of the City Prosecutor in Quezon City citing the same grounds. The complaint was, however, dismissed by Assistant City Prosecutor Josephus Joannes H. Asis for insufficiency of evidence.38 Respondent argued that on this basis alone, the administrative case must also be dismissed.

In her Position Paper,39 respondent also questioned the admissibility of the electronic evidence submitted by complainant to the IBP’s Commission on Bar Discipline. Respondent maintained that the e-mail and the text messages allegedly sent by respondent to complainant were of doubtful authenticity and should be excluded as evidence for failure to conform to the Rules on Electronic Evidence (A.M. No. 01-7-01-SC).

After due hearing, IBP Investigating Commissioner Patrick M. Velez issued a Report and Recommendation40 finding that a lawyer-client relationship was established between respondent and complainant despite the absence of a written contract. The Investigating Commissioner also declared that respondent violated her duty to be candid, fair and loyal to her client when she allowed herself to represent conflicting interests and failed to render a full accounting of all the cash and properties entrusted to her. Based on these grounds, the Investigating Commissioner recommended her disbarment.

Respondent moved for reconsideration,41 but the IBP Board of Governors issued a Recommendation42 denying the motion and adopting the findings of the Investigating Commissioner.

The case now comes before this Court for final action.

We affirm the findings of the IBP.

Rule 15.03, Canon 15 of the Code of Professional responsibility provides:

Rule 15.03—A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.

This prohibition is founded on principles of public policy, good taste43 and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof.44 It behooves lawyers not only to keep inviolate the client’s confidence,

but also to avoid the appearance of treachery and double—dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice.45 It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.46

Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,”47 precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.48

Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant.49 This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:

“The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession.”50 (Emphasis supplied.)

Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.

In Hornilla v. Atty. Salunat,51 we explained the concept of conflict of interest, thus:

“There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.”52

Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant.53 Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility,54 but also toyed with decency and good taste.

Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior.55 This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter56 even if no private individual files any administrative complaint.

Upon review, we find no cogent reason to disturb the findings and recommendations of the IBP Investigating Commissioner, as adopted by the IBP Board of Governors, on the admissibility of the electronic evidence submitted by complainant. We, accordingly, adopt the same in toto.

Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program.57 Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.

The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions.58 The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.

WHEREFORE, respondent Attorney Maricel Pascual-Lopez is hereby DISBARRED for representing conflicting interests and for engaging in unlawful, dishonest and deceitful conduct in violation of her Lawyer’s Oath and the Code of Professional Responsibility.

Let a copy of this Decision be entered in the respondent’s record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country.

SO ORDERED.

Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio,

Corona, Carpio-Morales, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-De Castro, Peralta and Bersamin,JJ., concur.

Brion, J., On Official Leave.

Atty. Maricel Pascual-Lopez disbarred.

Notes.—IBP decisions ordering suspension or disbarment of lawyers are merely recommendatory. (Investment and Management Services Corporation vs. Roxas, 256 SCRA 229 [1996])

The power to disbar must be exercised with great caution, and the case against the respondent must be established by clear, convincing, and satisfactory proof, the burden of which rests upon the complainant. (Santos vs. Cacho-Calicdan, 502 SCRA 197 [2006])

A.C. No. 6252. October 5, 2004.*

JONAR SANTIAGO, complainant, vs. ATTY. EDISON V. RAFANAN, respondent.

Attorneys; Notarial Law; Duties; The Notarial Law is explicit on the obligations and duties of notaries public.—The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before them has presented the proper residence certificate (or exemption from the residence

tax); and to enter its number, place of issue and date as part of such certification. They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to “give to each instrument executed, sworn to, or acknowledged before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded.” Failure to perform these duties would result in the revocation of their commission as notaries public.

Same; Same; Notary Public; Notaries public entering into their commissions are presumed to be aware of the elementary requirements.—The formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary requirements.

Same; Same; Same; Notarization; A notarial document is by law entitled to full faith and credit upon its face.—The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument.”

Same; Same; Same; Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.—It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes. They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence. It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes. Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws. No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public.

Same; Duties; Integrity; Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested.—“Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyer’s client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful.” Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

PANGANIBAN, J.:

Notaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof.

The Case and the Facts

Before us is a verified Complaint1 filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 1382 of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03,3 Canon 5,4 and Canons 12.075 and 12.08 of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid, Jr. summarized the allegations of the complainant in this wise:

“x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a) make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code.

“Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats.”6

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,7 Atty. Rafanan filed his verified Answer.8 He admitted having administered the oath to the affiants whose Affidavits were attached to the verified Complaint. He believed, however, that the non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija—some of whom were older practitioners—indicate the affiants’ residence certificates on the documents they notarized, or have entries in their notarial register for these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 1129 of the Rules of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients “on substantial matters, in cases where [their] testimony is essential to the ends of justice.” Complainant charged respondent’s clients with attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, “his testimony is very essential to the ends of justice.”

Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications10 from the Cabanatuan City Police and the Joint Affidavit11 of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.

After receipt of respondent’s Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two o’clock in the afternoon. Notices12 of the hearing were sent to the parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was unable to do so, apparently because he had received the Notice only on June 8, 2001.13 The hearing was reset to July 3, 2001 at two o’clock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply14 to the verified Answer of respondent. The latter’s Rejoinder was received by the CBD on July 13, 2001.15 It also received complainant’s Letter-Request16 to dispense with the hearings. Accordingly, it granted that request in its Order17 dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution.

The CBD received complainant’s Memorandum18 on September 26, 2001. Respondent did not file any.

The IBP’s Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-17219 approving and adopting the Investigating Commissioner’s Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiant’s residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation20 of the investigating commissioner by increasing the fine to “P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty.”

The other charges—violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR—were dismissed for insufficiency of evidence.

The Court’s Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondent’s Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before them has presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.21 They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to “give to each instrument executed, sworn to, or acknowledged before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded.”22 Failure to perform these duties would result in the revocation of their commission as notaries public.23

These formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,24 the Court explained the value and meaning of notarization as follows:

“The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document thus making that

document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument.”

For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their duties,25 which are dictated by public policy and are impressed with public interest.

It is clear from the pleadings before us—and respondent has readily admitted—that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so. Being swayed by the bad example of others is not an acceptable justification for breaking the law.

We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondent’s clients Ernesto Ramos and Rey Geronimo, as well as their witnesses’ Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainant’s brother against the aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary—in the absence of any fiscal, state prosecutor or government official authorized to administer the oath—to “certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.” Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that—as counsel for the affiants—he was not required to comply with the certification requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes.26 They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.27 It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.28 No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public.

Nonetheless, we do not agree with complainant’s plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.29 Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.30 Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondent’s clients, allegedly in violation of Rule 12.08 of the CPR: “A lawyer shall avoid testifying in behalf of his client.”

Rule 12.08 of Canon 12 of the CPR states:

“Rule 12.08—A lawyer shall avoid testifying in behalf of his client, except:

a) on formal matters, such as the mailing, authentication or custody of an instrument and the like;

b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.”

Parenthetically, under the law, a lawyer is not disqualified from being a witness,31 except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.32

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans—those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients.

“Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyer’s client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful.”33

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.34

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latter’s life and liberty are at stake.35 It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them. They are entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction. He had the duty to present—by all fair and honorable means—every defense and mitigating circumstance that the law permitted, to the end that his clients would not be deprived of life, liberty or property, except by due process of law.36

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.37 Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions.38 The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the “ends of justice,” the canons of the profession require him to withdraw from the active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability.39 It is not the self-serving claim of complainant but the version of respondent that is more credible, considering that the latter’s allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely.

SO ORDERED.

Sandoval-Gutierrez and Corona, JJ., concur.

Carpio-Morales, J., On Leave.

Respondent meted with a P3,000.00 fine for violation of Notarial Law and Canon 5 of Code of Professional Responsibility, with warning against repetition of similar infractions.

Note.—Documents acknowledged before notaries public are public documents and public documents are admissible in evidence without necessity of preliminary proof as to their authenticity and due execution. (Ruiz, Sr. vs. Court of Appeals, 362 SCRA 40 [2001])

——o0o—— [Santiago vs. Rafanan, 440 SCRA 91(2004)]

FELISA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OFMARISSABERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.

Remedial Law; Civil Procedure; Appeals; Habaluyas and Lacsamana cases, reiterated; Motion for extension of time to file motion for reconsideration of the decision of the Court of Appeals, not allowed; Under the Habaluyas and Lacsamana cases, the 15-day period for appealing or for filing a motion for reconsideration cannot be ex-tended.—This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners’ motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on May 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule. x x x Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court, [G.R. Nos. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal.

Same; Same; Same; Same; Prospective application of the Habaluyas rule.—Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986, 144 SCRA 161], stressed the prospective application of said rule, and explained the operation of the grace period.

Same; Same; Same; Same; Non-publication of the Habaluyas decision in the Official Gazette; There is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding; Duty of lawyer in active law practice to keep abreast of Supreme Court decisions.—Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners’ view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G.R.s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals.

Civil Law; Damages; Petitioner is liable under Article 2190 of the Civil Code for damages resulting from the total or partial collapse of a building if it should be due to the lack of necessary repairs.—This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court’s decision holding petitioner liable under Article 2190 of the Civil Code, which provides that “the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.”

SPECIAL CIVIL ACTION for certiorari to review the resolutions of the Court of Appeals.

The facts are stated in the resolution of the Court.

RESOLUTION

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners’ motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners’ motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in

view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch X X XVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners’ motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985, 138 SCRA 46], that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on May 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986, 144 SCRA 161], stressed the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court’s Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27.1986, it is still within the grace period, which expired on June 30.1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].

In the instant case, however, petitioners’ motion for extension of time was filed on September 9,1987, more than a year after the expiration of the grace period on June 30,1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners’ view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G.R.s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court’s decision holding petitioner liable under Article 2190 of the Civil Code, which provides that “the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.”

Nor was there error in rejecting petitioners argument that private respondents had the “last clear chance” to avoid the accident if only they heeded the warning to vacate the tailoring shop and, therefore, petitioners prior negligence should be disregarded, since the doctrine of “last clear chance,” which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Petition denied.

Notes.—The new matters raised on appeal should have been raised before the trial court, hence, the CA committed no grave abuse of discretion in denying the motion for reconsideration. (Congressional Commercial Corp. vs. CA, 146 SCRA 90.)

Question of jurisdiction not raised in the trial court cannot be raised on appeal. (Dalman vs. City Court of Dipolog City, Br. II, 134 SCRA 243.)

——o0o——

A.M. No. RTJ-08-2103. February 23, 2009.*

(Formerly OCA I.P.I. No. 07-2664–RTJ)

EDNA S.V. OGKA BENITO, complainant, vs. RASAD G. BALINDONG, Presiding Judge, Regional Trial Court, Malabang, Lanao del Sur, Branch 12, respondent.

Courts; Judges; Gross Ignorance of the Law; A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law—judges are expected to exhibit more than just cursory acquaintance with laws and procedural rules.—A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law. Judges are expected to exhibit more than just cursory acquaintance with laws and procedural rules. They must know the law and apply it properly in good faith. They are likewise expected to keep abreast of prevailing jurisprudence. For a judge who is plainly ignorant of the law taints the noble office and great privilege vested in him. Respondent’s gross ignorance of the law constituted inexcusable incompetence which was anathema to the effective dispensation of justice.

Same; Same; Same; Ombudsman Act (R.A. No. 6770); Under Sections 14 and 27 of Republic Act (R.A.) 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.—In SCA No. 12-181, respondents in OMB-M-A-05-175-E sought to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation. Since D.O. No. 2006-38 was issued merely to implement the decision of the Ombudsman, respondents in OMB-M-A-05-175-E were actually questioning this decision and seeking to enjoin its implementation by filing a petition for certiorari and prohibition in the RTC. This is not allowed under the law, rules and jurisprudence. Under Sections 14 and 27 of RA 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.

Same; Same; Same; Same; Court of Appeals; In Fabian v. Desierto, 295 SCRA 470 (1998), the Court enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals.—In Fabian v. Desierto, 295 SCRA 470 (1998), we enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the CA. Following our ruling in Fabian, the Ombudsman issued Administrative Order No. 17 amending Section 7, Rule III of Administrative Order No. 07: Section 7. Finality and execution of decision.—Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

Same; Same; Same; Good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error; If ordinary people are presumed to know the law, judges are duty-bound to actually know and understand it.—Respondent’s defense of good faith has no merit. Indeed, good faith and absence of malice, corrupt motives or improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can find refuge. However … good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error. If ordinary people are presumed to know the law, judges are duty-bound to actually know and understand it. A contrary rule will not only lessen the faith of the people in the courts but will also defeat the fundamental role of the judiciary to render justice and promote the rule of law.

Same; Same; Same; Judicial Ethics; A judge’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.—Gross ignorance of the law or procedure is a serious charge under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, punishable by either dismissal from service, suspension or a fine of more than P20,000 but not exceeding P40,000. Since this is respondent’s first offense, we deem it proper to impose upon him a fine of P30,000. Members of the bench are enjoined to behave at all times in a way that promotes public confidence in the integrity and impartiality of the judiciary. Respondent’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.

Same; Same; Same; Same; Legal Ethics; A.M. No. 02-9-02-SC; The act of a judge of issuing a Temporary Restraining Order (TRO) and writ of preliminary injunction and subsequently granting the petition, contrary to law, rules and jurisprudence amounts to consenting to the filing of an unlawful suit, in violation of the Lawyer’s Oath; A judge who falls short of the ethics of the judicial office tends to diminish the people’s respect for the law and legal processes.—Pursuant to A.M. No. 02-9-02-SC, this administrative case against respondent as a judge, based on grounds which are also grounds for disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar. When respondent entertained SCA No. 12-181, issued a TRO and writ of preliminary injunction and subsequently granted the petition, he acted contrary to law, rules and

jurisprudence. In doing so, he consented to the filing of an unlawful suit, in violation of the Lawyer’s Oath. A judge who falls short of the ethics of the judicial office tends to diminish the people’s respect for the law and legal processes. He also fails to observe and maintain the esteem due to the courts and to judicial officers. Thus, respondent violated Canons 1 and 11 of the Code of Professional Responsibility (CPR).

Same; Same; Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments.—Respondent’s gross ignorance of the law also runs counter to Canons 5 and 6 of the CPR: Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence. Canon 6. These Canons shall apply to lawyers in government service in the discharge of their official tasks. Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments. For such violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the CPR, respondent is fined in the amount of P10,000.

ADMINISTRATIVE MATTER in the Supreme Court. Gross Ignorance of the Law.

The facts are stated in the resolution of the Court.

R E S O L U T I O N

CORONA, J.:

In a complaint dated April 30, 2007, complainant Dr. Edna S.V. Ogka Benito, then acting mayor of the Municipality of Balabagan, Lanao del Sur, charged respondent Judge Rasad G. Balindong of the Regional Trial Court (RTC), Malabang, Lanao del Sur, Branch 12, with gross ignorance of the law.

Complainant alleged that on May 3, 2005, she filed administrative and criminal complaints against Mamarinta G. Macabato, then municipal treasurer of Balabagan, Lanao del Sur, for grave misconduct in the Office of the Ombudsman-Mindanao (Ombudsman) docketed as OMB-M-A-05-175-E. On September 15, 2005, the Ombudsman impleaded then Mayor Hadji Amer R. Sampiano as co-respondent. Complainant claimed that these respondents refused to pay her salary as vice mayor since July 1, 2004 despite repeated demands.1

On May 16, 2006, the Ombudsman rendered a decision in that case finding respondents therein guilty of conduct prejudicial to the best interest of the service and imposing on them the penalty of suspension from office without pay for a period of nine months. It further directed the Regional Secretary2 of the Department of the Interior and Local Government, Autonomous Region in Muslim Mindanao (DILG-ARMM) in Cotabato City to immediately implement the decision.3

In compliance with the decision of the Ombudsman, the Regional Secretary of the DILG-ARMM issued Department Order (D.O.) No. 2006-38 dated September 1, 2006 implementing said decision.4 Due to the suspension of Mayor Sampiano, complainant was sworn in as acting mayor.5

Meanwhile, on September 4, 2006, respondents in OMB-M-A-05-175-E filed a petition for certiorari and prohibition6 in the RTC of Malabang, Lanao del Sur, Branch 12. The petition was raffled to the sala of herein respondent and docketed as Special Civil Action (SCA) No. 12-181. Their prayer was to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation.7

On the same date, respondent issued an order granting a temporary restraining order (TRO) effective for 72 hours directing the Regional Secretary of the DILG-ARMM to cease, desist and refrain from implementing the D.O.8

In an order dated September 6, 2006, respondent extended the TRO for a period of 20 days.9

On September 25, 2006, respondent issued another order for the issuance of a writ of preliminary injunction directing the Regional Secretary to cease, desist and refrain from implementing D.O. No. 2006-38.

On October 5, 2006, respondent rendered an “order”/

decision annulling D.O. No. 2006-38.10 This decision and the writ of preliminary injunction were annulled by the Court of Appeals (CA) in its February 8, 2007 decision.11 The CA held that the RTC had no jurisdiction over the petition filed by the respondents in OMB-M-A-05-175-E pursuant to Sections 14 and 27 of Republic Act No. (RA) 677012 (Ombudsman Act of 1989) and Section 7, Rule III of the Rules of Procedure of the Ombudsman, as amended by Administrative Order No. 17-03.

Complainant asserted that, despite the clear provisions of the law and procedure, respondent took cognizance of SCA No. 12-181 and issued the TROs, writ of preliminary injunction and October 5, 2006 decision. Hence, she submitted that respondent should be administratively disciplined because of his gross ignorance of the law which prejudiced the rights of her constituents in Balabagan, Lanao del Sur.13

Respondent countered that he issued the orders in good faith. He was not moved by corrupt motives or improper considerations. This could be shown by the fact that complainant filed this complaint only after eight months from the resolution of SCA No. 12-181. Considering that complainant failed to establish bad faith or malevolence on his part, the complaint against him should be dismissed.

The Office of the Court Administrator (OCA), in its evaluation dated September 24, 2007, found that the pertinent provisions of the law were clear. It stated that:

“… the issuance of a TRO and writ of preliminary injunction is not a mere deficiency in prudence, or lapse of judgment by respondent judge but is a blatant disregard of basic rules constitutive of gross ignorance of the law. In the first place, respondent Judge should have refrained from taking cognizance of the said special civil action when it was raffled to his court, he ought to know this, yet he did otherwise.”

It recommended that respondent be held administratively liable for gross ignorance of the law and fined P21,000.14

We agree with the findings and evaluation of the OCA but we modify the penalty.

A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law.15 Judges are expected to exhibit more than just cursory acquaintance with laws and procedural rules.16 They must know the law and apply it properly in good faith.17 They are likewise expected to keep abreast of prevailing jurisprudence.18 For a judge who is plainly ignorant of the law taints the noble office and great privilege vested in him. Respondent’s gross ignorance of the law constituted inexcusable incompetence which was anathema to the effective dispensation of justice.

In SCA No. 12-181, respondents in OMB-M-A-05-175-E sought to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation. Since D.O. No. 2006-38 was issued merely to implement the decision of the Ombudsman, respondents in OMB-M-A-05-175-E were actually questioning this decision and seeking to enjoin its implementation by filing a petition for certiorari and prohibition in the RTC.

This is not allowed under the law, rules and jurisprudence. Under Sections 14 and 27 of RA 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.

“Section 14. Restrictions.—No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on [a] pure question of law.

x x x   x x x   x x x

Section 27. Effectivity and Finality of Decisions.—(1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

x x x   x x x   x x x

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month’s salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.”

However, in Fabian v. Desierto,19 we enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the CA. Following our ruling in Fabian, the Ombudsman issued Administrative Order No. 1720 amending Section 7, Rule III21 of Administrative Order No. 07:22

“Section 7. Finality and execution of decision.—Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.” (Emphasis supplied)

These provisions clearly show that respondent had no jurisdiction to take cognizance of the petition and to issue his subsequent orders. He proceeded against settled doctrine, an act constituting gross ignorance of the law or procedure.23

Respondent’s defense of good faith has no merit. Indeed, good faith and absence of malice, corrupt motives or improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can find refuge.24 However

“… good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error.”25

If ordinary people are presumed to know the law,26 judges are duty-bound to actually know and understand it. A contrary rule will not only lessen the faith of the people in the courts but will also defeat the fundamental role of the judiciary to render justice and promote the rule of law.

Gross ignorance of the law or procedure is a serious charge under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC,27 punishable by either dismissal from service, suspension or a fine of more than P20,000 but not exceeding P40,000.28 Since this is respondent’s first offense, we deem it proper to impose upon him a fine of P30,000.

Members of the bench are enjoined to behave at all times in a way that promotes public confidence in the integrity and impartiality of the judiciary.29 Respondent’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.

Pursuant to A.M. No. 02-9-02-SC,30 this administrative case against respondent as a judge, based on grounds which are also grounds for disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar.31

When respondent entertained SCA No. 12-181, issued a TRO and writ of preliminary injunction and subsequently granted the petition, he acted contrary to law, rules and jurisprudence. In doing so, he consented to the filing of an unlawful suit, in violation of the Lawyer’s Oath. A judge who falls short of the ethics of the judicial office tends to diminish the people’s respect for the law and legal processes.32 He also fails to observe and maintain the esteem due to the courts and to judicial officers.33 Thus, respondent violated Canons 1 and 11 of the Code of Professional Responsibility (CPR):

“Canon 1. A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

x x x   x x x   x x x

Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. (Emphasis supplied)

Respondent’s gross ignorance of the law also runs counter to Canons 5 and 6 of the CPR:

Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

Canon 6. These Canons shall apply to lawyers in government service in the discharge of their official tasks.” (Emphasis supplied)

Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments.

For such violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the CPR, respondent is fined in the amount of P10,000.34

WHEREFORE, Rasad G. Balindong, Presiding Judge of the Regional Trial Court, Malabang, Lanao del Sur, Branch 12 is hereby found GUILTY of gross ignorance of the law. He is FINED P30,000.

Respondent is further hereby FINED P30,000 for his violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the Code of Professional Responsibility.

He is STERNLY WARNED that the commission of the same or similar acts shall be dealt with more severely.

Let this resolution be attached to the personal files of respondent in the Office of the Court Administrator and the Office of the Bar Confidant.

SO ORDERED.

Puno (C.J.), Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Chico-Nazario, Nachura, Leonardo-De Castro, Brion and Peralta, JJ., concur.

Ynares-Santiago and Velasco, Jr., JJ., On Official Leave.

Tinga, J., On Leave.

Judge Rasad G. Balindong meted with P30,000.00 fine for gross ignorance of the law, another P10,000.00 for violation of Lawyer’s Oath and Canons 1, 5, 6 and 11 of Code of Professional Responsibility, with stern warning against commission of similar acts.

Notes.—Years of service in the bench simply negate any notion that a judge could be grossly ignorant of procedural laws. (Gutierrez vs. Hernandez, Sr., 524 SCRA 1 [2007])

A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law. (Lagcao vs. Gako, Jr., 529 SCRA 55 [2007])

——o0o——

A.C. No. 8392. June 29, 2010.*

[Formerly CBD Case No. 08-2175]

ROSARIO T. MECARAL, complainant, vs. ATTY. DANILO S. VELASQUEZ, respondent.

Administrative Law; Attorneys; Disbarment; Practice of law is not a right but a privilege bestowed by the state upon those who show that they possess and continue to possess, the qualifications required by law for the conferment of such privilege.—The practice of law is not a right but a privilege bestowed by the state upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. When a lawyer’s moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to keep his name in the Roll of Attorneys.

Same; Same; Same; By engaging himself in acts which are grossly immoral and acts which constitute gross misconduct, respondent is disbarred.—In fine, by engaging himself in acts which are grossly immoral and acts which constitute gross misconduct, respondent has ceased to possess the qualifications of a lawyer. Wherefore, respondent, Atty. Danilo S. Velasquez, is DISBARRED, and his name ORDERED STRICKEN from the Roll of Attorneys.

ADMINISTRATIVE CASE in the Supreme Court. Gross Misconduct and Gross Immoral Conduct.

The facts are stated in the opinion of the Court.

Women’s Legal Bureau-Lawnet Lawyer’s Network for complainant.

PER CURIAM:

Rosario T. Mecaral (complainant) charged Atty. Danilo S. Velasquez (respondent) before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD)1 with Gross Misconduct and Gross Immoral Conduct which she detailed in her Position Paper2 as follows:

After respondent hired her as his secretary in 2002, she became his lover and common-law wife. In October 2007, respondent brought her to the mountainous Upper San Agustin in Caibiran, Biliran where he left her with a religious group known as the Faith Healers Association of the Philippines, of which he was the leader. Although he visited her daily, his visits became scarce in November to December 2007, prompting her to return home to Naval, Biliran. Furious, respondent brought her back to San Agustin where, on his instruction, his followers tortured, brainwashed and injected her with drugs. When she tried to escape on December 24, 2007, the members of the group tied her spread-eagled to a bed. Made to wear only a T-shirt and diapers and fed stale food, she was guarded 24 hours a day by the women members including a certain Bernardita Tadeo.

Her mother, Delia Tambis Vda. De Mecaral (Delia), having received information that she was weak, pale and walking barefoot along the streets in the mountainous area of Caibiran, sought the help of the Provincial Social Welfare Department which immediately dispatched two women volunteers to rescue her. The religious group refused to release her, however, without the instruction of respondent. It took PO3 Delan G. Lee (PO3 Lee) and PO1 Arnel S. Robedillo (PO1 Robedillo) to rescue and reunite her with her mother.

Hence, the present disbarment complaint against respondent. Additionally, complainant charges respondent with bigamy for contracting a second marriage to Leny H. Azur on August 2, 1996, despite the subsistence of his marriage to his first wife, Ma. Shirley G. Yunzal.

In support of her charges, complainant submitted documents including the following: Affidavit3 of Delia dated February 5, 2008; Affidavit of PO3 Lee and PO1 Robedillo4 dated February 14, 2008; photocopy of the Certificate of Marriage5 between respondent and Leny H. Azur; photocopy of the Marriage Contract6 between respondent and Shirley G. Yunzal; National Statistics Office Certification7 dated April 23, 2008 showing the marriage of Ma. Shirley G. Yunzal to respondent on April 27, 1990 in Quezon City and the marriage of Leny H. Azur to respondent on August 2, 1996 in Mandaue City, Cebu; and certified machine copy of the Resolution8 of the Office of the Provincial Prosecutor of Naval, Biliran and the Information9 lodged with the RTC-Branch 37-Caibiran, Naval, Biliran, for Serious Illegal Detention against respondent and Bernardita Tadeo on complaint of herein complainant.Despite respondent’s receipt of the February 22, 2008 Order10 of the Director for Bar Discipline for him to submit his Answer within 15 days from receipt thereof, and his expressed intent to “properly make [his] defense in a verified pleading,”11 he did not file any Answer.

On the scheduled Mandatory Conference set on September 2, 2008 of which the parties were duly notified, only complainant’s counsel was present. Respondent and his counsel failed to appear.

Investigating Commissioner Felimon C. Abelita III of the CBD, in his Report and Recommendation12 dated September 29, 2008, found that:

“[respondent’s] acts of converting his secretary into a mistress; contracting two marriages with Shirley and Leny, are grossly immoral which no civilized society in the world can countenance. The subsequent detention and torture of the complainant is gross misconduct [which] only a beast may be able to do. Certainly, the respondent had violated Canon 1 of the Code of Professional Responsibility which reads:

CANON 1—A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.

x x x x

In the long line of cases, the Supreme Court has consistently imposed severe penalty for grossly immoral conduct of a lawyer like the case at bar. In the celebrated case of Joselano Guevarra vs. Atty. Jose Manuel Eala, the [Court] ordered the disbarment of the respondent for maintaining extra-marital relations with a married woman, and having a child with her. In the instant case, not only did the respondent commit bigamy for contracting marriages with Shirley Yunzal in 1990 and Leny Azur in 1996, but the respondent also made his secretary (complainant) his mistress and subsequently, tortured her to the point of death. All these circumstances showed the moral fiber respondent is made of, which [leave] the undersigned with no choice but to recommend the disbarment of Atty. Danilo S. Velasquez.”13 (emphasis and underscoring supplied)

The IBP Board of Governors of Pasig City, by Resolution14 dated December 11, 2008, ADOPTED the Investigating Commissioner’s findings and APPROVED the recommendation for the disbarment of respondent.

As did the IBP Board of Governors, the Court finds the IBP Commissioner’s evaluation and recommendation well taken.

The practice of law is not a right but a privilege bestowed by the state upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.15 When a lawyer’s moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to keep his name in the Roll of Attorneys.16

Respondent has not discharged the burden. He never attended the hearings before the IBP to rebut the charges brought against him, suggesting that they are true.17 Despite his letter dated March 28, 2008 manifesting that he would come up with his defense “in a verified pleading,” he never did.

Aside then from the IBP’s finding that respondent violated Canon 1 of the Code of Professional Responsibility, he also violated the Lawyer’s Oath reading:

“I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God,” (underscoring supplied),

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

“Rule 7.03—A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.”

The April 30, 2008 Resolution18 of the Provincial Prosecutor on complainant’s charge against respondent and Bernardita Tadeo for Serious Illegal Detention bears special noting, viz.:

“[T]he counter-affidavit of x x x Bernardita C. Tadeo (co-accused in the complaint) has the effect of strengthening the allegations against Atty. Danilo Velasquez. Indeed, it is clear now that there was really physical restraint employed by Atty. Velasquez upon the person of Rosario Mecaral. Even as he claimed that on the day private complainant was fetched by the two women and police officers, complainant was already freely roaming around the place and thus, could not have been physically detained. However, it is not really necessary that Rosario be physically kept within an enclosure to restrict her freedom of locomotion. In fact, she was always accompanied wherever she would wander, that it could be impossible for her to escape especially considering the remoteness and the distance between Upper San Agustin, Caibiran, Biliran to Naval, Biliran where she is a resident. The people from the Faith Healers Association had the express and implied orders coming from respondent Atty. Danilo Velasquez to keep guarding Rosario Mecaral and not to let her go freely. That can be gleaned from the affidavit of co-respondent Bernardita Tadeo. The latter being reprimanded whenever Atty. Velasquez would learn that complainant had untangled the cloth tied on her wrists and feet.”19 (emphasis and underscoring supplied)

That, as reflected in the immediately-quoted Resolution in the criminal complaint against respondent, his therein co-respondent corroborated the testimonies of complainant’s witnesses, and that the allegations against him remain unrebutted, sufficiently prove the charges against him by clearly preponderant evidence, the quantum of evidence needed in an administrative case against a lawyer.20

In fine, by engaging himself in acts which are grossly immoral and acts which constitute gross misconduct, respondent has ceased to possess the qualifications of a lawyer.21

WHEREFORE, respondent, Atty. Danilo S. Velasquez, is DISBARRED, and his name ORDERED STRICKEN from the Roll of Attorneys. This Decision is immediately executory and

_______________ [Mecaral vs. Velasquez, 622 SCRA 1(2010)]

A.C. No. 5700. January 30, 2006.*

PHILIPPINE AMUSEMENT AND GAMING CORPORATION, represented by Atty. Carlos R. Bautista, Jr., complainant, vs. ATTY. DANTE A. CARANDANG, respondent.

Attorneys; Disbarment; Misconduct; As a lawyer, respondent is deemed to know the law, especially B.P. Blg. 22—by issuing checks in violation of the provisions of this law, respondent is guilty of serious misconduct.—As a lawyer, respondent is deemed to know the law, especially B.P. Blg. 22. By issuing checks in violation of the provisions of this law, respondent is guilty of serious misconduct. In Camus v. Civil Service Board of Appeals, we defined misconduct as follows: Misconduct has been defined as “wrong or improper conduct;” and “gross” has been held to mean “flagrant; shameful” (Webster). This Court once held that the word misconduct implies a wrongful intention and not a mere error of judgment.

Same; Same; Same; A lawyer may be disciplined not only for malpractice in connection with his profession, but also for gross misconduct of his professional capacity.—In Lizaso v. Amante, 2 SCRA 370 (1961), we held that a lawyer may be disciplined not only for malpractice in connection with his profession, but also for gross misconduct outside of his professional capacity, thus: The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorney, uniformly require that an attorney shall be a person of good moral character. x x x So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the principles which his license and the law confer upon him.

Same; Same; Same; Respondent likewise violated the Attorney’s Oath that he will, among others, obey the laws, and the Code of Professional Responsibility.—Respondent likewise violated the Attorney’s Oath that he will, among others, obey the laws; and the Code of Professional Responsibility, specifically the following provisions: Canon 1—A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes. Rule 1.01—A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 7—A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar. Rule 7.03—A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

SANDOVAL-GUTIERREZ, J.:

Before us is a verified complaint for disbarment filed by the Philippine Amusement and Gaming Corporation (PAGCOR) against Atty. Dante A. Carandang.

The complaint alleges that Atty. Carandang, respondent, is the president of Bingo Royale, Incorporated (Bingo Royale), a private corporation organized under the laws of the Philippines.

On February 2, 1999, PAGCOR and Bingo Royale executed a “Grant of Authority to Operate Bingo Games.” Article V of this document mandates Bingo Royale to remit 20% of its gross sales to PAGCOR. This 20% is divided into 15% to PAGCOR and 5% franchise tax to the Bureau of Internal Revenue.

In the course of its operations, Bingo Royale incurred arrears amounting to P6,064,833.14 as of November 15, 2001. Instead of demanding the payment therefor, PAGCOR allowed Bingo Royale and respondent Atty. Carandang to pay the said amount in monthly installment of P300,000.00 from July 2001 to June 2003.

Bingo Royale then issued to PAGCOR twenty four (24) Bank of Commerce checks in the sum of P7,200,000.00 signed by respondent.

However, when the checks were deposited after the end of each month at the Land Bank, U.N. Avenue Branch, Manila, they were all dishonored by reason of Bingo Royale’s “Closed Account.”

Despite PAGCOR’s demand letters dated November 12 and December 12, 2001, and February 12, 2002, respondent failed to pay the amounts of the checks. Thus, PAGCOR filed with the Office of the City Prosecutor of Manila criminal complaints for violations of Batas Pambansa (B.P.) Blg. 22 against respondent.

PAGCOR contends that in issuing those bouncing checks, respondent is liable for serious misconduct, violation of the Attorney’s Oath and violation of the Code of Professional Responsibility; and prays that his name be stricken from the Roll of Attorneys.

In his “Opposition” to the complaint, respondent averred that he is not liable for issuing bouncing checks because they were drawn by Bingo Royale. His act of doing so “is not related to the office of a lawyer.”

Respondent explained that since the start of its operations, Bingo Royale has been experiencing financial difficulties due to meager sales. Hence, it incurred arrearages in paying PAGCOR’s shares and failed to pay the amounts of the checks.

On November 20, 2001, PAGCOR closed the operations of Bingo Royale. This prompted the latter to file with the Regional Trial Court, Branch 59, Makati City, a complaint for damages against PAGCOR, docketed as Civil Case No. 01-1671.

Subsequently, Bingo Royale became bankrupt. Respondent now maintains that the dishonor of the checks was caused by circumstances beyond his control and pleads that our power to disbar him must be exercised with great caution.

On February 24, 2003, we resolved to refer this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.1

In his Report and Recommendation, Atty. Doroteo B. Aguila, the Investigating IBP Commissioner, made the following findings and observations:

“Whether to issue or not checks in favor of a payee is a voluntary act. It is clearly a choice for an individual (especially one learned in the law), whether in a personal capacity or officer of a corporation, to do so after assessing and weighing the consequences and risks for doing so. As President of BRI, he cannot be said to be unaware of the probability that BRI, the company he runs, could not raise funds, totally or partially, to cover the checks as they fell due. The desire to continue the operations of his company does not excuse respondent’s act of violating the law by issuing worthless checks. Moreover, inability to pay is not a ground, under the Civil Code, to suspend nor extinguish an obligation. Specifically, respondent contends that because of business reverses or inability to generate funds, BRI should be excused from making good the payment of the checks. If this theory is sustained, debtors will merely state that they no longer have the capacity to pay and, consequently, not obliged to pay on time, nor fully or partially, their debt to creditors. Surely, undersigned cannot agree with this contention.

As correctly pointed out by complainant, violation of B.P. Blg. 22 is an offense that involves public interest. In the leading case of People v. Tañada, the Honorable Supreme Court explained the nature of the offense, thus—

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment x x x. The thrust of the law is to prohibit under pain of penal sanctions the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punishes the act not as an offense against property but an offense against public order.

x x x

The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation,

multiplied a thousand fold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. x x x (Emphasis supplied)

The Code of Professional Responsibility requires a lawyer to obey the laws of the land and promote respect for law and the legal processes. It also prohibits a lawyer from engaging in unlawful conduct (Canon 1 & Rule 1.01). By issuing the bouncing checks in blatant violation of B.P. Blg. 22, respondent clearly was irresponsible and displayed lack of concern for the rights of others nor for the canons of professional responsibility (Castillo v. Taguines, 254 SCRA 554). Atty. Carandang deserves to be suspended from the practice of law for a period of one year. Consistent with the ruling in this Castillo case, suspension for one year is the deserved minimum penalty for the outrageous conduct of a lawyer who has no concern for the property rights of others nor for the canons of professional responsibility. Moreover, conviction for the offense of violation of B.P. Blg. 22 is not even essential for disbarment (De Jesus v. Collado, 216 SCRA 619).”

Commissioner Aguila then recommended that respondent be suspended from the practice of law for one (1) year.

On September 27, 2003, the IBP Board of Governors passed Resolution No. XVI-2003-177 adopting and approving Commissioner Aguila’s Report and Recommendation with modification in the sense that the recommended penalty is reduced to suspension of six (6) months, thus:

“RESOLVED TO ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of the Resolution/Decision as Annex “A” and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering that the Code of Professional Responsibility requires a lawyer to obey the laws of the land and promote respect of law and the legal processes, and also prohibits a lawyer from engaging in unlawful conduct, Atty. Dante A. Carandang is hereby SUSPENDED from the practice of law for six (6) months.”2

Section 1, B. P. Blg. 22 provides:

“Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check on behalf of such drawer shall be liable under this Act.” (Emphasis supplied)

Clearly, even if the check was drawn by Bingo Royale, still respondent is liable.

In People v. Tuanda,3 we explained the nature of violation of B.P. Blg. 22 as follows:

“The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment x x x. The thrust of the law is to prohibit under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property but an offense against public order.

The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest.”

As a lawyer, respondent is deemed to know the law, especially B.P. Blg. 22. By issuing checks in violation of the provisions of this law, respondent is guilty of serious misconduct. In Camus v. Civil Service Board of Appeals,4 we defined misconduct as follows:

“Misconduct has been defined as “wrong or improper conduct;” and “gross” has been held to mean “flagrant; shameful” (Webster). This Court once held that the word misconduct implies a wrongful intention and not a mere error of judgment.”

In Lizaso v. Amante,5 we held that a lawyer may be disciplined not only for malpractice in connection with his profession, but also for gross misconduct outside of his professional capacity, thus:

“The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorney, uniformly require that an attorney shall be a person of good moral character. x x x So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the principles which his license and the law confer upon him.” (Italics supplied)

Respondent likewise violated the Attorney’s Oath that he will, among others, obey the laws; and the Code of Professional Responsibility, specifically the following provisions:

Canon 1—A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes.

Rule 1.01—A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Canon 7—A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar.

Rule 7.03—A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

WHEREFORE, Atty. Dante A. Carandang is declared GUILTY of serious misconduct and violations of the Attorney’s Oath and the Code of Professional Responsibility. As recommended by the IBP Board of Governors, he is SUSPENDED from the practice of law for six (6) months effective from notice.

Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the land for their information and guidance. The Office of the Bar Confidant is DIRECTED to spread a copy of this Decision on the personal record of Atty. Carandang.

SO ORDERED.

Note.—A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor. (Donato vs. Asuncion, Sr., 424 SCRA 199 [2004])

——o0o—— [Philippine Amusement and Gaming Corporation vs. Carandang, 480 SCRA 512(2006)]

A.C. No. 5148. July 1, 2003.*

ATTY. RAMON P. REYES, complainant, vs. ATTY. VICTORIANO T. CHIONG, JR., respondent.

Administrative Law; Attorneys; A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.—Lawyers are licensed officers of the courts who are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence. Membership in the bar imposes upon them certain obligations. Mandated to maintain the dignity of the legal profession, they must conduct themselves honorably and fairly. Moreover, Canon 8 or the Code of Professional Responsibility provides that “[a] lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.”

Same; Same; Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility; Any undue ill feeling between clients should not influence counsels in their conduct and demeanor toward each other.—Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility. A great part of their comfort, as well as of their success at the bar, depends upon their relations with their professional brethren. Since they deal constantly with each other, they must treat one another with trust and respect. Any undue ill feeling between clients should not influence counsels in their conduct and demeanor toward each other. Mutual bickering, unjustified recriminations and offensive behavior among lawyers not only detract from the dignity of the legal profession, but also constitute highly unprofessional conduct subject to disciplinary action.

Same; Same; Law practitioners exhorted by the Lawyer’s Oath not to wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same.—Furthermore, the Lawyer’s Oath exhorts law practitioners not to “wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same.”

Same; Same; While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the law or any manner of fraud or chicanery.—Respondent claims that it was his client who insisted in impleading complainant and Prosecutor Salanga. Such excuse is flimsy and unacceptable. While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the law or any manner of fraud or chicanery. Their rendition of improper service invites stern and just condemnation. Correspondingly, they advance the honor of their profession and the best interests of their clients when they render service or give advice that meets the strictest principles of moral law.

ADMINISTRATIVE MATTER in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

Reyes, Cruz & Santos Law Offices for complainant.

Ong, Saavedra, Chiong Law Offices for respondent.

PANGANIBAN, J.:

Lawyers should treat each other with courtesy, dignity and civility. The bickering and the hostility of their clients should not affect their conduct and rapport with each other as professionals and members of the bar.

The Case

Before us is a Sworn Complaint1 filed by Atty. Ramon P. Reyes with the Office of the Bar Confidant of this Court, seeking the disbarment of Atty. Victoriano T. Chiong, Jr. for violation of his lawyer’s oath and of Canon 8 of the Code of Professional Responsibility. After the Third Division of this Court referred the case to the Integrated Bar of the Philippines (IBP), the IBP Commission on Bar Discipline resolved to suspend him as follows:

“x x x [C]onsidering that respondent is bound by his oath which binds him to the obligation that he will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same. In addition, Canon 8 of the Code of Professional Responsibility provides that a lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel. In impleading complainant and Prosecutor Salanga in Civil Case No. 4884, when it was apparent that there was no legal ground to do so, respondent violated his oath of office as well as the above-quoted Canon of the Code of Professional Responsibility, [r]espondent is hereby SUSPENDED from the practice of law for two (2) years.”2

The Facts

In his Complaint, Atty. Reyes alleges that sometime in January 1998, his services were engaged by one Zonggi Xu,3 a Chinese-Taiwanese, in a business venture that went awry. Xu invested P300,000 on a Cebu-based fishball, tempura and seafood products factory being set up by a certain Chia Hsien Pan, another Chinese-Taiwanese residing in Zamboanga City. Eventually, the former discovered that the latter had not established a fishball factory. When Xu asked for his money back, Pan became hostile, making it necessary for the former to seek legal assistance.

Xu, through herein complainant, filed a Complaint for estafa against Pan, who was represented by respondent. The Complaint, docketed as IS 98J-51990, was assigned to Assistant Manila City Prosecutor Pedro B. Salanga, who then issued a subpoena for Pan to appear for preliminary investigation on October 27 and 29, 1998.

The latter neither appeared on the two scheduled hearings nor submitted his counter-affidavit. Hence, Prosecutor Salanga filed a Criminal Complaint4 for estafa against him before the Regional Trial Court (RTC) of Manila.5 On April 8, 1999, the Manila RTC issued a Warrant of Arrest6 against Pan.

Thereafter, respondent filed an Urgent Motion to Quash the Warrant of Arrest.7 He also filed with the RTC of Zamboanga City a Civil Complaint for the collection of a sum of money and damages as well as for the dissolution of a business venture against complainant, Xu and Prosecutor Salanga.

When confronted by complainant, respondent explained that it was Pan who had decided to institute the civil action against Atty. Reyes. Respondent claimed he would suggest to his client to drop the civil case, if complainant would move for the dismissal of the estafa case. However, the two lawyers failed to reach a settlement.

In his Comment8 dated January 27, 2000, respondent argued that he had shown no disrespect in impleading Atty. Reyes as co-defendant in Civil Case No. 4884. He claimed that there was no basis to conclude that the suit was groundless, and that it had been instituted only to exact vengeance. He alleged that Prosecutor Salanga was impleaded as an additional defendant because of the irregularities the latter had committed in conducting the criminal investigation. Specifically, Prosecutor Salanga had resolved to file the estafa case despite the pendency of Pan’s Motion for an Opportunity to Submit Counter-Affidavits and Evidence,9 of the appeal10 to the justice secretary, and of the Motion to Defer/Suspend Proceedings.11

On the other hand, complainant was impleaded, because he allegedly connived with his client (Xu) in filing the estafa case, which the former knew fully well was baseless. According to respondent, the irregularities committed by Prosecutor Salanga in the criminal investigation and complainant’s connivance therein were discovered only after the institution of the collection suit.

The Third Division of this Court referred the case to the IBP for investigation, report and recommendation.12 Thereafter, the Board of Governors of the IBP passed its June 29, 2002 Resolution.13

Report and Recommendation of the IBP

In her Report and Recommendation,14 Commissioner Milagros V. San Juan, to whom the case was assigned by the IBP for investigation and report, averred that complainant and Prosecutor Salanga had been impleaded in Civil Case No. 4884 on the sole basis of the Criminal Complaint for estafa they had filed against respondent’s client. In his Comment, respondent himself claimed that “the reason x x x was x x x the irregularities of the criminal investigation/connivance and consequent damages.”

Commissioner San Juan maintained that the collection suit with damages had been filed purposely to obtain leverage against the estafa case, in which respondent’s client was the defendant. There was no need to implead complainant and Prosecutor Salanga, since they had never participated in the business transactions between Pan and Xu. Improper and highly questionable was the inclusion of the prosecutor and complainant in the civil case instituted by respondent on the alleged prodding of his client. Verily, the suit was filed to harass complainant and Prosecutor Salanga.

Commissioner San Juan held that respondent had no ground to implead Prosecutor Salanga and complainant in Civil Case No. 4884. In so doing, respondent violated his oath of office and Canon 8 of the Code of Professional Responsibility. The IBP adopted the investigating commissioner’s recommendation for his suspension from the practice of law for two (2) years.

This Court’s Ruling

We agree with the IBP’s recommendation.

Lawyers are licensed officers of the courts who are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.15 Membership in the bar imposes upon them certain obligations. Mandated to maintain the dignity of the legal profession, they must conduct themselves honorably and fairly. Moreover, Canon 8 or the Code of Professional Responsibility provides that “[a] lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.”

Respondent’s actions do not measure up to this Canon. Civil Case No. 4884 was for the “collection of a sum of money, damages and dissolution of an unregistered business venture.” It had originally been filed against Spouses Xu, but was later modified to include complainant and Prosecutor Salanga.

The Amended and Supplemental Complaints16 alleged the following:

“27. The investigating prosecutor defendant Pedro Salanga knowingly and deliberately refused and failed to perform his duty enjoined by the law and the Constitution to afford plaintiff Chia Hsien Pan due process by violating his rights under the Rules on preliminary investigations; he also falsely made a Certification under oath that preliminary investigation was duly conducted and plaintiff [was] duly informed of the charges against him but did not answer; he maliciously and x x x partially ruled that there was probable cause and filed a Criminal Information for estafa against plaintiff Chia Hsien Pan, knowing fully [well] that the proceedings were fatally defective and null and void; x x x;

“28. Said assistant prosecutor, knowing also that plaintiff Chia Hsien Pan filed said appeal and motion to defer for the valid grounds stated therein deliberately refused to correct his errors and consented to the arrest of said plaintiff under an invalid information and warrant of arrest.

“29. Defendant Atty. Ramon Reyes, knowing that the suit of defendant Zongoi Xu is baseless connived with the latter to harass and extort money from plaintiff Chia Hsien Pan by said criminal prosecution in the manner contrary to law, morals and public policy, resulting to the arrest of said plaintiff and causing plaintiffs grave irreparable damages[.]”17

We concur with the IBP that the amendment of the Complaint and the failure to resort to the proper remedies strengthen complainant’s allegation that the civil action was intended to gain leverage against the estafa case. If respondent or his client did not agree with Prosecutor Salanga’s resolution, they should have used the proper procedural and

administrative remedies. Respondent could have gone to the justice secretary and filed a Motion for Reconsideration or a Motion for Reinvestigation of Prosecutor Salanga’s decision to file an information for estafa.

In the trial court, a Motion to Dismiss was available to him if he could show that the estafa case was filed without basis. Moreover, he could have instituted disbarment proceedings against complainant and Prosecutor Salanga, if he believed that the two had conspired to act illegally. As a lawyer, respondent should have advised his client of the availability of these remedies. Thus, the filing of the civil case had no justification.

The lack of involvement of complainant and Prosecutor Salanga in the business transaction subject of the collection suit shows that there was no reason for their inclusion in that case. It appears that respondent took the estafa case as a personal affront and used the civil case as a tool to return the inconvenience suffered by his client. His actions demonstrate a misuse of the legal process. The aim of every lawsuit should be to render justice to the parties according to law, not to harass them.18

Lawyers should treat their opposing counsels and other lawyers with courtesy, dignity and civility. A great part of their comfort, as well as of their success at the bar, depends upon their relations with their professional brethren. Since they deal constantly with each other, they must treat one another with trust and respect. Any undue ill feeling between clients should not influence counsels in their conduct and demeanor toward each other. Mutual bickering, unjustified recriminations and offensive behavior among lawyers not only detract from the dignity of the legal profession,19 but also constitute highly unprofessional conduct subject to disciplinary action.

Furthermore, the Lawyer’s Oath exhorts law practitioners not to “wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same.”

Respondent claims that it was his client who insisted in impleading complainant and Prosecutor Salanga. Such excuse is flimsy and unacceptable. While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the law or any manner of fraud or chicanery.20 Their rendition of improper service invites stern and just condemnation. Correspondingly, they advance the honor of their profession and the best interests of their clients when they render service or give advice that meets the strictest principles of moral law.21

The highest reward that can be bestowed on lawyers is the esteem of their professional brethren. This esteem cannot be purchased, perfunctorily created, or gamed by artifice or contrivance. It is born of sharp contests and thrives despite conflicting interests. It emanates solely from integrity, character, brains and skill in the honorable performance of professional duty.22

WHEREFORE, respondent is found guilty as charged and is hereby SUSPENDED for two (2) years from the practice of law, effective immediately.

SO ORDERED.

Davide (C.J.), Bellosillo, Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.

Austria-Martinez, J., On leave.

Respondent suspended for two (2) years for violation of Lawyer’s Oath and Canon 8 of the Code of Professional Responsibility.

Note.—It is the foremost responsibility of a lawyer “to observe and maintain the respect due to the courts of justice and judicial officers.” (Villaflor vs. Sarita, 308 SCRA 129 [1999])

——o0o—— [Reyes vs. Chiong, Jr, 405 SCRA 212(2003)]

Adm. Case No. 5398. December 3, 2002.*

ANTONIO A. ALCANTARA, complainant, vs. ATTY. MARIANO PEFIANCO, respondent.

Legal Ethics; Attorneys; Code of Professional Responsibility; Use of Improper and Offensive Language; The Code of Professional Responsibility admonishes lawyers to conduct themselves with courtesy, fairness and candor toward their fellow lawyers.—Canon 8 of the Code of Professional Responsibility admonishes lawyers to conduct themselves with courtesy, fairness and candor towards their fellow lawyers. Lawyers are duty bound to uphold the dignity of the legal profession. They must act honorably, fairly and candidly toward each other and otherwise conduct themselves without reproach at all times.

ADMINISTRATIVE MATTER in the Supreme Court. Conduct Unbecoming a Member of the Bar.

The facts are stated in the opinion of the Court.

MENDOZA, J.:

This is a complaint against Atty. Mariano Pefianco for conduct unbecoming a member of the bar for using improper and offensive language and threatening and attempting to assault complainant.

The complainant, Atty. Antonio A. Alcantara, is the incumbent District Public Attorney of the Public Attorney’s Office in San Jose, Antique. He alleged that on May 18, 2000, while Atty. Ramon Salvani III was conferring with a client in the Public Attorney’s Office (PAO) at the Hall of Justice in San Jose, Antique, a woman approached them. Complainant saw the woman in tears, whereupon he went to the group and suggested that Atty. Salvani talk with her amicably as a hearing was taking place in another room. At this point, respondent Atty. Mariano Pefianco, who was sitting nearby, stood up and shouted at Atty. Salvani and his client, saying, “Nga-a gina-areglo mo ina, ipapreso ang imo nga kliyente para mahibal-an na anang sala.” (“Why do you settle that case? Have your client imprisoned so that he will realize his mistake.”)

Complainant said he was surprised at respondent Pefianco’s outburst and asked him to cool off, but respondent continued to fulminate at Atty. Salvani. Atty. Salvani tried to explain to respondent that it was the woman who was asking if the civil aspect of the criminal case could be settled because she was no longer interested in prosecuting the same. Respondent refused to listen and instead continued to scold Atty. Salvani and the latter’s client.

As head of the Office, complainant approached respondent and asked him to take it easy and leave Atty. Salvani to settle the matter. Respondent at first listened, but shortly after he again started shouting at and scolding Atty. Salvani. To avoid any scene with respondent, complainant went inside his office. He asked his clerk to put a notice outside prohibiting anyone from interfering with any activity in the Public Attorney’s Office.

Complainant said that he then went out to attend a hearing, but when he came back he heard respondent Pefianco saying: “Nagsiling si Atty. Alcantara nga pagwa-on na kuno ako dya sa PAO, buyon nga klase ka tawo.” (“Atty. Alcantara said that he would send me out of the PAO, what an idiot.”) Then, upon seeing complainant, respondent pointed his finger at him and repeated his statement for the other people in the office to hear. At this point, according to complainant, he confronted respondent Pefianco and told him to observe civility or else to leave the office if he had no business there. Complainant said respondent resented this and started hurling invectives at him. According to complainant, respondent even took a menacing stance towards him.

This caused a commotion in the office. Atty. Pepin Marfil and Mr. Robert Minguez, the Chief of the Probation Office, tried to pacify respondent Pefianco. Two guards of the Hall of Justice came to take respondent out of the office, but before they could do so, respondent tried to attack complainant and even shouted at him, “Gago ka!” (“You’re stupid!”) Fortunately, the guards were able to fend off respondent’s blow and complainant was not harmed.

Complainant also submitted the affidavits of Atty. Ramon Salvani III, Felizardo Del Rosario, Atty. Pepin Joey Marfil, Robert Minguez, Herbert Ysulat and Ramon Quintayo to corroborate his allegations.

In his Comment and Counter-Complaint, respondent Pefianco said that the sight of the crying woman, whose husband had been murdered, moved him and prompted him to take up her defense. He said that he resented the fact that complainant had ordered an employee, Napoleon Labonete, to put a sign outside prohibiting “standbys” from hanging round in the Public Attorney’s Office.

Respondent claimed that while talking with Atty. Salvani concerning the woman’s case, complainant, with his bodyguard, arrived and shouted at him to get out of the Public Attorney’s Office. He claimed that two security guards also came, and complainant ordered them to take respondent out of the office. Contrary to complainant’s claims, however, respondent said that it was complainant who moved to punch him and shout at him, “Gago ka!” (“You’re stupid!”)

Prior to the filing of the present complaint, respondent Pefianco had filed before the Office of the Ombudsman an administrative and criminal complaint against complainant. However, the complaint was dismissed by the said office.

The Committee on Bar Discipline of the Integrated Bar of the Philippines found that respondent committed the acts alleged in the complaint and that he violated Canon 8 of the Code of professional Responsibility. The Committee noted that respondent failed not only to deny the accusations against him but also to give any explanation for his actions. For this reason, it recommended that respondent be reprimanded and warned that repetition of the same act will be dealt with more severely in the future.

We find the recommendation of the IBP Committee on Bar Discipline to be well taken.

The evidence on record indeed shows that it was respondent Pefianco who provoked the incident in question. The affidavits of several disinterested persons confirm complainant’s allegation that respondent Pefianco shouted and hurled invectives at him and Atty. Salvani and even attempted to lay hands on him (complainant).

Canon 8 of the Code of Professional Responsibility1 admonishes lawyers to conduct themselves with courtesy, fairness and candor towards their fellow lawyers. Lawyers are duty bound to uphold the dignity of the legal profession. They must act honorably, fairly and candidly toward each other and otherwise conduct themselves without reproach at all times.2

In this case, respondent’s meddling in a matter in which he had no right to do so caused the untoward incident. He had no right to demand an explanation from Atty. Salvani why the case of the woman had not or could not be settled. Even so, Atty. Salvani in fact tried to explain the matter to respondent, but the latter insisted on his view about the case.

Respondent said he was moved by the plight of the woman whose husband had been murdered as she was pleading for the settlement of her case because she needed the money. Be that as it may, respondent should realize that what he thought was righteous did not give him the right to demand that Atty. Salvani and his client, apparently the accused in the criminal case, settle the case with the widow. Even when he was being pacified, respondent did not relent. Instead he insulted and berated those who tried to calm him down. Two of the witnesses, Atty. Pepin Marfil and Robert Minguez, who went to the Public Attorney’s Office because they heard the commotion, and two guards at the Hall of Justice, who had been summoned, failed to stop respondent from his verbal rampage. Respondent ought to have realized that this sort of public behavior can only bring down the legal profession in the public estimation and erode public respect for it. Whatever moral righteousness respondent had was negated by the way he chose to express his indignation. An injustice cannot be righted by another injustice.

WHEREFORE, Atty. Mariano Pefianco is found GUILTY of violation of Canon 8 of the Code of Professional Responsibility and, considering this to be his first offense, is hereby FINED in the amount of P1,000.00 and REPRIMANDED with a warning that similar action in the future will be sanctioned more severely.

SO ORDERED.

Adm. Case No. 6290. July 14, 2004.*

ANA MARIE CAMBALIZA, complainant, vs. ATTY. ANA LUZ B. CRISTAL-TENORIO, respondent.

Administrative Law; Attorneys; Disbarment; A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant.—The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare.

Same; Same; Same; When the criminal prosecution based on the same act charged is still pending in court, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case to avoid contradictory findings.—With respect to the estafa case which is the basis for the charge of malpractice or other gross misconduct in office, the respondent is not yet convicted thereof. In Gerona vs. Datingaling, we held that when the criminal prosecution based on the same act charged is still pending in court, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case to avoid contradictory findings.

Same; Same; Same; A lawyer who allows a non-member of the Bar to misrepresent himself as a lawyer and to practice is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility.—We, affirm the IBP’s finding that the respondent is guilty of assisting in the unauthorized practice of law. A lawyer who allows a non-member of the Bar to misrepresent himself as a lawyer and to practice law is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility, which read as follows: Canon 9—A lawyer shall not directly or indirectly assist in the unauthorized practice of law. Rule 9.01—A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.

Same; Same; Same; What implies “practice of law.”—The term “practice of law” implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration of his services. Holding one’s self out as a lawyer may be shown by acts indicative of that purpose like identifying oneself as attorney, appearing in court in representation of a client, or associating oneself as a partner of a law office for the general practice of law. Such acts constitute unauthorized practice of law.

Same; Same; Same; The canons and ethics of the profession enjoin a lawyer not to permit his professional services or his name to be used in aid of, or make possible unauthorized practice of law by, any agency, personal or corporate.—The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. It devolves upon a lawyer to see that this purpose is attained. Thus, the canons and ethics of the profession enjoin him not to permit his professional services or his name to be used in aid of, or to make possible the unauthorized practice of law by, any agency, personal or corporate. And, the law makes it a misbehavior on his part, subject to disciplinary action, to aid a layman in the unauthorized practice of law.

ADMINISTRATIVE MATTER in the Supreme Court. Disbarment.

The facts are stated in the resolution of the Court.

A.C. Jarabata for complainant.

Magsino, Bautista and Associates Law Offices for respondents.

R E S O L U T I O N

DAVIDE, JR., C.J.:

In a verified complaint for disbarment filed with the Committee on Bar Discipline of the Integrated Bar of the Philippines (IBP) on 30 May 2000, complainant Ana Marie Cambaliza, a former employee of respondent Atty. Ana Luz B. Cristal-Tenorio in her law office, charged the latter with deceit, grossly immoral conduct, and malpractice or other gross misconduct in office.

On deceit, the complainant alleged that the respondent has been falsely representing herself to be married to Felicisimo R. Tenorio, Jr., who has a prior and subsisting marriage with another woman. However, through spurious means, the respondent and Felicisimo R. Tenorio, Jr., were able to obtain a false marriage contract,1 which states that they were married on 10 February 1980 in Manila. Certifications from the Civil Registry of Manila2 and the National Statistics Office (NSO)3 prove that no record of marriage exists between them. The false date and place of marriage between the two are stated in the birth certificates of their two children, Donnabel Tenorio4 and Felicisimo Tenorio III.5 But in the birth certificates of their two other children, Oliver Tenorio6 and John Cedric Tenorio,7 another date and place of marriage are indicated, namely, 12 February 1980 in Malaybalay, Bukidnon.

As to grossly immoral conduct, the complainant alleged that the respondent caused the dissemination to the public of a libelous affidavit derogatory to Makati City Councilor Divina Alora Jacome. The respondent would often openly and sarcastically declare to the complainant and her co-employees the alleged immorality of Councilor Jacome.

On malpractice or other gross misconduct in office, the complainant alleged that the respondent: (1) cooperated in the illegal practice of law by her husband, who is not a member of the Philippine Bar; (2) converted her client’s money to her own use and benefit, which led to the filing of an estafa case against her; and (3) threatened the complainant and her family on 24 January 2000 with the statement “Isang bala ka lang” to deter them from divulging respondent’s illegal activities and transactions.

In her answer, the respondent denied all the allegations against her. As to the charge of deceit, she declared that she is legally married to Felicisimo R. Tenorio, Jr. They were married on 12 February 1980 as shown by their Certificate of Marriage, Registry No. 2000-9108 of the Civil Registry of Quezon City.8 Her husband has no prior and subsisting marriage with another woman.

As to the charge of grossly immoral conduct, the respondent denied that she caused the dissemination of a libelous and defamatory affidavit against Councilor Jacome. On the contrary, it was Councilor Jacome who caused the execution of said document. Additionally, the complainant and her cohorts are the rumormongers who went around the city of Makati on the pretext of conducting a survey but did so to besmirch respondent’s good name and reputation.

The charge of malpractice or other gross misconduct in office was likewise denied by the respondent. She claimed that her Cristal-Tenorio Law Office is registered with the Department of Trade and Industry as a single proprietorship, as shown by its Certificate of Registration of Business Name.9 Hence, she has no partners in her law office. As to the estafa case, the same had already been dropped pursuant to the Order of 14 June 1996 issued by Branch 103 of the Regional Trial Court of Quezon City.10 The respondent likewise denied that she threatened the complainant with the words “Isang bala ka lang” on 24 January 2000.

Further, the respondent averred that this disbarment complaint was filed by the complainant to get even with her. She terminated complainant’s employment after receiving numerous complaints that the complainant extorted money from different people with the promise of processing their passports and marriages to foreigners, but she reneged on her promise. Likewise, this disbarment complaint is politically motivated: some politicians offered to rehire the complainant and her cohorts should they initiate this complaint, which they did and for which they were re-hired. The respondent also flaunted the fact that she had received numerous awards and citations for civic works and exemplary service to the community. She then prayed for the dismissal of the disbarment case for being baseless.

The IBP referred this case to Investigating Commissioner Atty. Kenny H. Tantuico.

During the hearing on 30 August 2000, the parties agreed that the complainant would submit a Reply to respondent’s Answer, while the respondent would submit a Rejoinder to the Reply. The parties also agreed that the Complaint, Answer, and the attached affidavits would constitute as the respective direct testimonies of the parties and the affiants.11

In her Reply, the complainant bolstered her claim that the respondent cooperated in the illegal practice of law by her husband by submitting (1) the letterhead of Cristal-Tenorio Law Office12 where the name of Felicisimo R. Tenorio, Jr., is listed as a senior partner; and (2) a Sagip Communication Radio Group identification card13 signed by the respondent as Chairperson where her husband is identified as “Atty. Felicisimo R. Tenorio, Jr.” She added that respondent’s husband even appeared in court hearings.

In her Rejoinder, respondent averred that she neither formed a law partnership with her husband nor allowed her husband to appear in court on her behalf. If there was an instance that her husband appeared in court, he did so as a representative of her law firm. The letterhead submitted by the complainant was a false reproduction to show that her husband is one of her law partners. But upon cross-examination, when confronted with the letterhead of Cristal-Tenorio Law Office bearing her signature, she admitted that Felicisimo R. Tenorio, Jr., is not a lawyer, but he and a certain Gerardo A. Panghulan, who is also not a lawyer, are named as senior partners because they have investments in her law office.14

The respondent further declared that she married Felicisimo R. Tenorio, Jr., on 12 February 1980 in Quezon City, but when she later discovered that their marriage contract was not registered she applied for late registration on 5 April 2000. She then presented as evidence a certified copy of the marriage contract issued by the Office of the Civil Registrar General and authenticated by the NSO. The erroneous entries in the birth certificates of her children as to the place and date of her marriage were merely an oversight.15

Sometime after the parties submitted their respective Offer of Evidence and Memoranda, the complainant filed a Motion to Withdraw Complaint on 13 November 2002 after allegedly realizing that this disbarment complaint arose out of a misunderstanding and misappreciation of facts. Thus, she is no longer interested in pursuing the case. This motion was not acted upon by the IBP.

In her Report and Recommendation dated 30 September 2003, IBP Commissioner on Bar Discipline Milagros V. San Juan found that the complainant failed to substantiate the charges of deceit and grossly immoral conduct. However, she found the respondent guilty of the charge of cooperating in the illegal practice of law by Felicisimo R. Tenorio, Jr., in violation of Canon 9 and Rule 9.01 of the Code of Professional Responsibility based on the following evidence: (1) the letterhead of Cristal-Tenorio Law Office, which lists Felicisimo R. Tenorio, Jr., as a senior partner; (2) the Sagip Communication Radio Group identification card of “Atty. Felicisimo R. Tenorio, Jr.,” signed by respondent as Chairperson; (3) and the Order dated 18 June 1997 issued by the Metropolitan Trial Court in Criminal Cases Nos. 20729 - 20734, wherein Felicisimo R. Tenorio, Jr., entered his appearance as counsel and even moved for the provisional dismissal of the cases for failure of the private complainants to appear and for lack of interest to prosecute the said cases. Thus, Commissioner San Juan recommended that the respondent be reprimanded.

In its Resolution No. XVI-2003-228 dated 25 October 2003, the IBP Board of Governors adopted and approved with modification the Report and Recommendation of Commissioner San Juan. The modification consisted in increasing the penalty from reprimand to suspension from the practice of law for six months with a warning that a similar offense in the future would be dealt with more severely.

We agree with the findings and conclusion of Commissioner San Juan as approved and adopted with modification by the Board of Governors of the IBP.

At the outset, we find that the IBP was correct in not acting on the Motion to Withdraw Complaint filed by complainant Cambaliza. In Rayos-Ombac vs. Rayos,16 we declared:

The affidavit of withdrawal of the disbarment case allegedly executed by complainant does not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been duly proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to

practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney’s alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.

Hence, notwithstanding the Motion to Withdraw Complaint, this disbarment case should proceed accordingly.

The IBP correctly found that the charges of deceit and grossly immoral conduct were not substantiated. In disbarment proceedings, the complainant has the burden of proving his case by convincing evidence.17 With respect to the estafa case which is the basis for the charge of malpractice or other gross misconduct in office, the respondent is not yet convicted thereof. In Gerona vs. Datingaling,18 we held that when the criminal prosecution based on the same act charged is still pending in court, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case to avoid contradictory findings.

We, however, affirm the IBP’s finding that the respondent is guilty of assisting in the unauthorized practice of law. A lawyer who allows a non-member of the Bar to misrepresent himself as a lawyer and to practice law is guilty of violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility, which read as follows:

Canon 9—A lawyer shall not directly or indirectly assist in the unauthorized practice of law.

Rule 9.01—A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.

The term “practice of law” implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration of his services. Holding one’s self out as a lawyer may be shown by acts indicative of that purpose like identifying oneself as attorney, appearing in court in representation of a client, or associating oneself as a partner of a law office for the general practice of law.19 Such acts constitute unauthorized practice of law.

In this case, Felicisimo R. Tenorio, Jr., is not a lawyer, but he holds himself out as one. His wife, the respondent herein, abetted and aided him in the unauthorized practice of the legal profession.

At the hearing, the respondent admitted that the letterhead of Cristal-Tenorio Law Office listed Felicisimo R. Tenorio, Jr., Gerardo A. Panghulan, and Maricris D. Battung as senior partners. She admitted that the first two are not lawyers but paralegals. They are listed in the letterhead of her law office as senior partners because they have investments in her law office.20 That is a blatant misrepresentation.

The Sagip Communication Radio Group identification card is another proof that the respondent assisted Felicisimo R. Tenorio, Jr., in misrepresenting to the public that he is a lawyer. Notably, the identification card stating that he is “Atty. Felicisimo Tenorio, Jr.,” bears the signature of the respondent as Chairperson of the Group.

The lawyer’s duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy. Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. It devolves upon a lawyer to see that this purpose is attained. Thus, the canons and ethics of the profession enjoin him not to permit his professional services or his name to be used in aid of, or to make possible the unauthorized practice of law by, any agency, personal or corporate. And, the law makes it a misbehavior on his part, subject to disciplinary action, to aid a layman in the unauthorized practice of law.21

WHEREFORE, for culpable violation of Canon 9 and Rule 9.01 of the Code of Professional Responsibility, respondent Atty. Ana Luz B. Cristal-Tenorio is hereby SUSPENDED from the practice of law for a period of six (6) months effective immediately, with a warning that a repetition of the same or similar act in the future will be dealt with more severely.

Let copies of this Resolution be attached to respondent Cristal-Tenorio’s record as attorney in this Court and furnished to the IBP and the Office of the Court Administrator for circulation to all courts.

SO ORDERED.

Panganiban, Ynares-Santiago, Carpio and Azcuna, JJ., concur.

Respondent suspended from practice of law for six (6) months, with warning against repetition of similar act.

Note.—Acquittal in a criminal case is not determinative of an administrative case for disbarment. (Calub vs. Suller, 323 SCRA 556 [2000])

——o0o—— [Cambaliza vs. Cristal-Tenorio, 434 SCRA 288(2004)]

A.C. No. 7056. September 13, 2006.*

PLUS BUILDERS, INC. and EDGARDO C. GARCIA, complainants, vs. Atty. ANASTACIO E. REVILLA, JR., respondent.

Legal Ethics; Attorneys; Good faith, fairness and candor constitute the essence of membership in the legal profession; While lawyers owe fidelity to the cause of their client, they must never abuse their right of recourse to the courts by arguing a case that has repeatedly been rejected, nor should they use their knowledge of the law as an instrument to harass a party or to misuse judicial processes.— Lawyers are officers of the court, called upon to assist in the administration of justice. They act as vanguards of our legal system, protecting and upholding truth and the rule of law. They are expected to act with honesty in all their dealings, especially with the courts. Verily, the Code of Professional Responsibility enjoins lawyers from committing or consenting to any falsehood in court or from allowing the courts to be misled by any artifice. Moreover, they are obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice. Good faith, fairness and candor constitute the essence of membership in the legal profession. Thus, while lawyers owe fidelity to the cause of their client, they must never abuse their right of recourse to the courts by arguing a case that has repeatedly been rejected. Neither should they use their knowledge of the law as an instrument to harass a party or to misuse judicial processes. These acts constitute serious transgression of their professional oath.

Attorneys; Unauthorized Practice of Law; A lawyer shall not directly or indirectly assist in the unauthorized practice of law; Silence or failure of respondent to challenge the allegation that he allowed non-lawyers to engage in the unauthorized practice of law may be deemed an admission of the truth of the accusation.—We agree with the finding of IBP Commissioner Espina that the silence or failure of respondent to challenge the allegation that he allowed non-lawyers to engage in the unauthorized practice of law may be deemed an admission of the truth of the accusation. We note that complainants successfully substantiated their claim that respondent, who held himself out as a law partner of the “KDC Legal Services, Law Offices and Associates,” was rendering legal services together with persons not licensed to practice law. His silence on this accusation is deemed an admission, especially because he had every chance to deny it. Canon 9 and Rule 9.01 of the Code of Professional Responsibility provide thus: “Canon 9—A lawyer shall not directly or indirectly assist in the unauthorized practice of law. ‘Rule 9.01—A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.’ ”

Same; Same; The lawyer’s duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy—public policy requires that the practice of law be limited to those individuals found duly qualified in education and character.—The significance of this professional norm was emphasized in Cambaliza v. Cristal-Tenorio, 434 SCRA 288 (2004) which we quote: “The lawyer’s duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy. Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. It devolves upon a lawyer to see that this purpose is attained. Thus, the canons and ethics of the profession enjoin him not to permit his professional services or his name to be used in aid of, or to make possible the unauthorized practice of law by, any agency, personal or corporate. And, the law makes it a misbehavior on his part, subject to disciplinary action, to aid a layman in the unauthorized practice of law.”

ADMINISTRATIVE CASE in the Supreme Court. Commission of Willful and Intentional Falsehood Before the Court; Misusing Court Procedure and Processes to Delay the Execution of a Judgment; and Collaborating with Non-lawyers in the Illegal Practice of Law.

The facts are stated in the opinion of the Court.

Leopoldo S. Gonzalez for complainants.

PANGANIBAN, C.J.:

By their oath and under the Code of Professional Responsibility, lawyers must uphold truth and justice above everything else, even above their own and their client’s interests. They must be willing and able to stand for their convictions against all odds; to carry on in spite of seemingly insurmountable opposition; and to be beacons for the weak, the oppressed and the marginalized. For failing miserably to live by this oath and Code, respondent must be sanctioned.

The Case and the Facts

This administrative case originated from a Verified Petition for Disbarment1 filed by Plus Builders Inc. and Edgardo C. Garcia before the Integrated Bar of the Philippines (IBP). Complainants charged Atty. Anastacio E. Revilla, Jr. with committing a willful and intentional falsehood before the court; misusing court procedure and processes to delay the execution of a judgment; and collaborating with non-lawyers in the illegal practice of law.

The material averments of the Complaint are as follows:

“On April 7, 1999, Plus Builders Inc. filed before the Provincial Adjudicator of Cavite (PARAD) of DAR, DARAB CASE NOS. R-402-027-99 up to R-402-031-99, inclusive, against Leopoldo De Guzman, Heirs of Bienvenido De Guzman, Apolonio Ilas and Gloria Martirez Siongco, Heirs of Faustino Siongco; Serafin Santarin, Benigno Alvarez and Maria Esguerra, et al; hereinafter called [tenants/farmers] x x x.

“On November 15, 1999, the Provincial Adjudicator of Cavite (PARAD) rendered a consolidated Decision in favor of petitioner/ complainant [Plus Builders, Inc.], and against [tenants/farmers]. x x x.

“[Tenants/farmers] filed several verified pleadings as part of the records of DARAB cases above-mentioned alleging under oath that they were ‘MAGSASAKANG NAMUMUWISAN’ or mere tenants of subject properties, acknowledging the rights of the registered owners at that time, even before the ownership and title were transferred to Petitioner/ Complainant Plus Builders, Inc. x x x.

“On Dec[ember] 17, 1999, counsel for TENANTS/FARMERS who at that time was Atty. Damian S. J. Vellaseca, filed a pro-forma Motion for Reconsideration and Manifestation x x x. As a result, PARAD did not give due course to the same x x x.

“On March 27, 2000, another counsel for TENANTS/ FARMERS, by the name of Atty. Willy G. Roxas, who represented himself as counsel for TENANTS/FARMERS, filed a manifestation stating that he is representing TENANTS/FARMERS and alleged that they were ‘bona fide’ members of the [Kalayaan Development Cooperative] (KDC). Thereafter, he filed a Notice of Appeal on March 27, 2000 stating that they received the Decision on March 14, 2000 and alleged that the Decision is against the law and jurisprudence x x x.

“On May 31, 2001, Respondent Anastacio Revilla, Jr., knowing that there was a monetary judgment by way of Disturbance Compensation granted to Tenants/Farmers, x x x filed a ‘Motion for Leave of Court to Allow Correction of Caption and Amendment of Judgment’ (referring to the Decision of PARAD of Cavite dated November 15, 1999 x x x) with a prayer ‘x x x to include the name of the KALAYAAN DEVELOPMENT CORPORATION representing the following respondents herein above stated in the caption of [the] pleading.’ Also, a Contract of Retainership dated April 4, 2001 was attached to the Motion x x x to make x x x KDC represented by Respondent, [the] retained x x x ‘counsel on record’ x x x.

“After realizing that his motion failed to give him beneficial monetary gain from the PARAD judgment, a Petition for Preliminary Injunction with prayer for Issuance of Temporary Restraining Order and to Quash Alias Writ of Execution with Demolition plus Damages dated July 18, 2001 was filed by Respondent x x x before the DARAB Central Office, Quezon City, notwithstanding the fact that this instant case was appealed by another lawyer (Atty. Willy Roxas). x x x.

“On the basis of this Petition, a Temporary Restraining Order by the DARAB Central Office, Quezon City, was issued on July 25, 2001 and an extension of or another Temporary Restraining Order was issued dated August 24, 2001, as a result of the active participation of Respondent x x x.

“Emboldened by the two (2) TRO’s coming from DARAB Central Office, Respondent x x x filed an Indirect Contempt case dated August 28, 2001 against Plus Builders Inc. and their Board of Directors, Edgardo Garcia and [its] counsel Atty. Leopoldo S. Gonzalez before the same Office. x x x.

“Sensing a series of orders against herein Petitioners and considering, further, that the DARAB Central Office refused to hear arguments from Petitioners on the two (2) questionable TRO’s, Petitioners decided to elevate the matter to the Court of Appeals by way of a Petition for Certiorari. A Decision was rendered by the Court of Appeals on [December] 20, 2001 stating that:

‘WHEREFORE, the petition is GRANTED. The assailed orders issued by the DARAB are hereby declared NULL AND VOID for having been issued without jurisdiction. Consequently, this Court sees no impediment for the IMPLEMENTATION of the 15 November 1999 Decision of the provincial adjudicator.

‘SO ORDERED.’

“This incident was further elevated to the Supreme Court by Respondent x x x through a Petition, but said Petition was dismissed with finality x x x.

“Enraged by his defeat, Respondent x x x filed a verified “Action to Quiet Title” before the Regional Trial Court of Imus, Cavite praying for a Temporary Restraining Order (TRO), among others, to deliberately and maliciously stop the enforcement of the Decisions of the higher courts to implement the PARAD Decision dated November 15, 1999. x x x.

x x x x x x x x x

“Respondent signed his pleading under a group of non-lawyers joining him in the practice of law as [KDC] LEGAL SERVICES, LAW OFFICERS AND ASSOCIATES which included KDC as law partners in violation of the Rules on the practice of law with non-lawyers. As a matter of fact, under the Retainership Contract submitted by Respondent before the PARAD of Cavite, it was specifically mentioned that legal fees were to be collected as counsel on record for the cooperative and respondent. Therefore, this contract was effectively used [for] unlawful solicitation of clients in the practice of law with non-lawyers, being the cooperative (KDC) to become “counsel on record [sic] x x x.

“On March 6, 2003, the Regional Trial Court of Imus, Cavite quashed the earlier issued TRO and dismissed the case on the ground of ‘res judicata’ because the Court of Appeals ruled that, ‘x x x the Decision of the Provincial Adjudicator of DAR dated November 15, 1999 has already become final x x x’ and that, prescription does not run against registered land. x x x.”2

In his Answer3 dated March 29, 2004, respondent denied the charges against him. He averred that by filing the action to quiet title in Civil Case No. 2763-03, he had merely wanted to protect the rights and interests of his clients. According to him, they sincerely and honestly believed that their possession of the litigated land had already ripened into ownership. He explained thus:

“Notwithstanding the claim of said farmers of tenancy relationship with [the] previous owner in the decisions of PARA[D], Court of Appeals and Supreme Court in the DISTURBANCE COMPENSATION CASES, (DARAB CASE NO. R-402-025-99; R-402-026-99; R-402-027-99; R-402-028-99; R-402-029-99; R-402-030-99; R-402-031-99) the said farmers, are not precluded, by any law or jurisprudence, from entertaining in good faith an opinion or belief that they could legally be considered as owners of the subject-property precisely because of the undisputed fact that they have been in possession thereof in an open, continuous, public, uninterrupted possession for more than fifty (50) years. x x x.

“It was on the basis of [a] sincere and honest belief and opinion o[f] acquiring ownership of the land through prescription that the said farmers had decided to pursue and file the Action to Quiet Title in Civil Case No. 2763-03, before the RTC of Imus, Cavite, Branch 20 x x x.

x x x x x x x x x

“It should be stressed that the decisions of the PARA[D], Court of Appeals and the Supreme Court in DARAB CASE No. R-402-025-99; R-402-026-99; R-402-027-99; R-402-028-99; R-402-029-99; R-402-030-99; R-402-031-99, [i]ndisputably refer only to the fixing of disturbance compensations. They did not in any way, involve [the] question of ownership of the subject property, which is the subject matter of Civil Case No. 2763-03, (Action to Quiet Title), filed before the RTC of Imus, Cavite, Branch 20.

x x x x x x x x x

“As new counsel of the said farmers x x x, respondent has the complete discretion [of] what legal strategy or cause of action to undertake on their behalf and the complainant and their counsel have no business or right to interfere with or dictate [upon] the respondent on how to protect the rights and interests of said farmers under the applicable law and jurisprudence.

x x x x x x x x x

“Respondent respectfully submits that he has not committed any illegal, unlawful, unjust, wrongful or immoral acts towards the complainant. Respondent, in good faith filed the aforesaid cases (Action to Quiet Title, RTC, Imus, Cavite, Branch 20; and Petition for Issuance of Preliminary Injunction and TRO, and Complaint before the Ombudsman), as a lawyer sworn to uphold justice and the law who was the bounden duty to exert utmost efforts to defend his client and protect his right, no matter how guilty or evil he appears to be, especially if they are poor and uneducated like the said farmers.”4

In a Reply5 dated April 12, 2004, complainants emphasized that the nature of the possession of the subject land by respondent’s clients had already been settled in the case for disturbance compensation. Complainants maintained that the PARAD Decision, which was sustained by the Court of Appeals and the Supreme Court, clearly stated that these clients were mere tenants of the land. Thus, adverse possession could not be claimed by respondent in good faith, especially when he had previously acknowledged the rights of complainants as landowners.

On August 4, 2004, both parties appeared at a hearing scheduled by Edmund T. Espina, commissioner of the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD). During the hearing, the parties were directed to submit their respective Memoranda.

Report and Recommendation of the IBP-CBD

In his April 30, 2005 Report,6 Investigating Commissioner Espina found respondent guilty of violating the attorney’s oath and the Code of Professional Responsibility.7 Allegedly, respondent had “maliciously concealed the defeat of his clients in the case before the PARAD of Cavite and the higher courts,”8 in order to secure a temporary restraining order from the RTC of Imus, Cavite. As a result, he was able to delay the execution of the provincial adjudicator’s Decision dated November 15, 1999.

Moreover, Commissioner Espina opined that the charge that respondent had been engaged in the unlawful practice of law was neither satisfactorily explained nor specifically denied by the latter. The failure of respondent to do so led to the presumption that the allegation was true.

Thus, his suspension from the practice of law for two years was recommended by the investigating commissioner. In Resolution No. XVII-2005-172,9 the board of governors of the IBP adopted the findings and recommendation of IBP Commissioner Espina.

The Resolution, together with the records of the case, was transmitted to this Court for final action,10 pursuant to Rule 139-B Section 12(b).

The Court’s Ruling

We agree with the findings and recommendation of the IBP board of governors.

Administrative Liability of Respondent

Lawyers are officers of the court, called upon to assist in the administration of justice. They act as vanguards of our legal system,11 protecting and upholding truth and the rule of law.12 They are expected to act with honesty in all their dealings, especially with the courts. Verily, the Code of Professional Responsibility enjoins lawyers from committing or consenting to any falsehood in court or from allowing the courts to be misled by any artifice.13 Moreover, they are obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice.14

Good faith, fairness and candor constitute the essence of membership in the legal profession.15 Thus, while lawyers owe fidelity to the cause of their client, they must never abuse their right of recourse to the courts by arguing a case that has repeatedly been rejected. Neither should they use their knowledge of the law as an instrument to harass a party or to misuse judicial processes. These acts constitute serious transgression of their professional oath.16

In the present case, respondent claims good faith in pursuing the cause of his clients. The records show, however, that his course of legal action was obviously a stratagem. It was meant to delay unduly the execution of the provincial adjudicator’s Decision dated November 15, 1999.

It must be noted that when the Court of Appeals and this Court upheld that Decision, respondent resorted to a different forum to pursue his clients’ lost cause. In the disturbance compensation case, he represented his clients as tenants and acknowledged that complainants were the owners of the subject land. In the action to quiet title, however, he conveniently repudiated his previous admission by falsely alleging that his clients were adverse possessors claiming bona fide ownership. Consequently, he was able to obtain a temporary restraining order preventing the execution of the provincial adjudicator’s Decision.

Clearly, he was shielding his clients from the Order of execution. Contrary to his later claim of ownership of the land, he cannot feign ignorance of his previous admission of a tenancy relationship existing between his clients and complainants, as correctly observed by IBP Commissioner Espina.

The propensity of respondent for doublespeak was also revealed in his declaration that his clients were pauper litigants. His prayer for an exemption to pay court fees, on the ground that they did not have sufficient income,17 was granted by the trial court. Earlier, however, he admitted that they had engaged the services of his legal office for a fee of P20,000, in addition to P2,500 per appearance in court. Also, in the action to quiet title, he even alleged that they were willing to post a bond to answer for damages, in the event that the court ruled in favor of the defendants. These facts contravene his claim that his clients could not afford to pay the appropriate court fees.

In support of the cause of their clients, lawyers have the duty to present every remedy or defense within the authority of the law. This obligation, however, must never be at the expense of truth and justice,18 as explained in Choa v. Chiongson:19

“While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his client’s case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he ‘will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same’; and that he ‘will conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.’ Needless to state, the lawyer’s fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyer’s responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.”20

Moreover, we agree with the finding of IBP Commissioner Espina that the silence or failure of respondent to challenge the allegation that he allowed non-lawyers to engage in the unauthorized practice of law may be deemed an admission of the truth of the accusation. We note that complainants successfully substantiated their claim that respondent, who

held himself out as a law partner of the “KDC Legal Services, Law Offices and Associates,” was rendering legal services together with persons not licensed to practice law. His silence on this accusation is deemed an admission, especially because he had every chance to deny it.21

Canon 9 and Rule 9.01 of the Code of Professional Responsibility provide thus:

“Canon 9—A lawyer shall not directly or indirectly assist in the unauthorized practice of law.

‘Rule 9.01—A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing.’ ”

The significance of this professional norm was emphasized in Cambaliza v. Cristal-Tenorio,22 which we quote:

“The lawyer’s duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy. Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. It devolves upon a lawyer to see that this purpose is attained. Thus, the canons and ethics of the profession enjoin him not to permit his professional services or his name to be used in aid of, or to make possible the unauthorized practice of law by, any agency, personal or corporate. And, the law makes it a misbehavior on his part, subject to disciplinary action, to aid a layman in the unauthorized practice of law.”23

Respondent failed to live up to the exacting standards expected of him as a vanguard of law and justice. In line with jurisprudence, he is held liable for gross misconduct and is suspended from the practice of law. 24

WHEREFORE, Anastacio E. Revilla, Jr. is hereby found guilty of gross misconduct and is SUSPENDED for two years from the practice of law, effective upon his receipt of this Decision. He is warned that a repetition of the same or similar acts will be dealt with more severely.

Let copies of this Decision be entered in the record of respondent as attorney and served on the IBP, as well as on the court administrator who shall circulate it to all courts for their information and guidance.

SO ORDERED.

Panganiban (C.J.), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur.

Velasco, Jr., J., No part due to close relations to a party.

Atty. Anastacio E. Revilla, Jr. suspended from practice of law for two (2) years for gross misconduct, with warning against repetition of similar acts.

Notes.—In this day and age, members of the bar often forget that the practice of law is a profession and not a business—lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. (Burbe vs. Magulta, 383 SCRA 276 [2002])

A clerk of court should not hesitate to inform the judge if he should find any act or conduct on the part of lawyers which are contrary to the established rules of procedure. (Young vs. Batuegas, 403 SCRA 123 [2003])

——o0o—— [Plus Builders, Inc. vs. Revilla, Jr., 501 SCRA 615(2006)]

A.C. No. 2655. October 12, 2010.*

LEONARD W. RICHARDS, complainant, vs. PATRICIO A. ASOY, respondent.

Administrative Law; Attorneys; The solemn oath which all lawyers take upon admission to the bar to dedicate their lives to the pursuit of justice is neither a mere formality nor hollow words meant to be taken lightly, but a sacred trust that lawyers must uphold and keep inviolable at all times.—Respondent’s justification for his 9-year belated “compliance” with the order for him to reimburse complainant glaringly speaks of his lack of candor, of his dishonesty, if not defiance of Court orders, qualities that do not endear him to the esteemed brotherhood of lawyers. The solemn oath which all lawyers take upon admission to the bar to dedicate their lives to the pursuit of justice is neither a mere formality nor hollow words meant to be taken lightly, but a sacred trust that lawyers must uphold and keep inviolable at all times. The lack of any sufficient justification or explanation for the nine-year delay in complying with the Court’s July 9, 1987 and March 15, 1988 Resolutions to reimburse complainant betrays a clear and contumacious disregard for the lawful orders of this Court. Such disrespect on the part of respondent constitutes a clear violation of the lawyer’s Code of Professional Responsibility.

ADMINISTRATIVE CASE in the Supreme Court. Petition for Reinstatement to the Bar.

The facts are stated in the resolution of the Court.

Funa, Balayan, Fortes & Villagonzalo Law Offices for respondent.

R E S O L U T I O N

Per Curiam:

For consideration is the petition of Patricio A. Asoy (respondent) for reinstatement to the Bar. Records disclose that the Ministry of Tourism, by 1st Indorsement of July 2, 1984, forwarded to the Court a June 28, 1984 letter-complaint of Leonard Richards (complainant) against respondent.

By Resolution of November 11, 1985, the Court, noting respondent’s failure to comply, despite notice, with its Resolution of August 8, 1984 requiring him to comment on complainant’s letter, resolved to require him to show cause why he should not be disciplinarily dealt with or held in contempt and to comply with the said Resolution of August 8, 1984, both within ten days from notice.

In the same Resolution of November 11, 1985, the Court noted several attempts, which were all futile, to serve copy of the August 8, 1984 Resolution at respondent’s other addresses, viz.: B.F. Homes, Parañaque; the Central Bank Legal Department; Suite 306, Filmanbank Building, Plaza Sta. Cruz, Sta. Cruz; Asia International Builders Corp., 5th Floor, ADC Bldg., Ayala Avenue, Makati (the address given in respondent’s calling card); and respondent’s provincial address at the Bar Office which was coursed through the IBP Tacloban Chapter.1

Still in the same Resolution of November 11, 1985, the Court noted that “unquestionably, respondent had gone into hiding and was evading service of pleadings/orders/processes of this Court.”2 The Court accordingly suspended respondent from the practice of law until further orders from this Court. Thus it disposed:

“ACCORDINGLY, respondent, Atty. Patricio A. Asoy, is hereby SUSPENDED from the practice of law until further Orders of this Court. Let copies of this Resolution be circularized to all Courts.

Should respondent appear before any lower Court, the latter shall serve upon him a copy of this Resolution and require him to appear, within five (5) days, before the Deputy Clerk of Court and Bar Confidant, who shall furnish him with a copy of the Administrative Complaint and require him to file an Answer thereto, within five (5) days thereafter. The lower Court concerned shall furnish this Court with copy of its Order immediately.”3 (emphasis and underscoring supplied)

On January 9, 1986, respondent filed before the Court a MANIFESTATION/MOTION FOR RECONSIDERATION alleging that on December 2, 1985, he “learned and secured a copy of Supervisory Circular No. 17 wherein the Resolution of the . . . Court, promulgated on November 11, 1985 is quoted. . .”; that he was voluntarily submitting himself to the jurisdiction of the Court even if he had not been formally served a copy of the Resolution and had not been ordered by any lower court to appear before the Deputy Clerk of Court and Bar Confidant; that on account of distance and financial constraints, he could not possibly comply with the Order of this Court for him to appear before the Deputy Clerk of Court and Bar Confidant within the five-day period stated; that he was totally unaware of the existence of the complaint until December 2, 1985; and that to the best of his knowledge, he had not violated his oath as an attorney at law nor is he guilty of any offense to warrant his suspension from the practice of law.

Respondent thus prayed for the lifting of his suspension and for excusing him from personally appearing before the Bar Confidant upon the undertaking that he would answer the complaint in five days from receipt thereof.

On the directive of the Court, the Bar Confidant formalized the complaint against respondent on April 29, 1986.

By Resolution of October 1, 1986, the Court, noting respondent’s failure to file comment on the administrative complaint within the period which expired on May 21, 1986, directed the sending of the administrative complaint to respondent at his address in Iligan City for compliance with the Resolution requiring him to file Answer to the Complaint.

On December 18, 1986, the Court received respondent’s ANSWER WITH MOTION TO LIFT ORDER OF SUSPENSION, alleging that he received copy of the complaint only on November 19, 1986, “though the same was served and received at this present address (Rm. 302 Aalos Building, Aguinaldo St., Iligan City) on May 6, 1986 and November 5, 1986”; and that he was begging the indulgence of the Court and of the complainant for the delay in the filing of his Answer due to his temporary transfer to Tubud, Lanao del Norte in view of his temporary appointment as Provincial Administrator.

By Resolution of February 10, 1986, the Court denied respondent’s prayer to lift the order of suspension from the practice of law but excused him from appearing before the Deputy Clerk of Court and Bar Confidant.

The Court, by Resolution of July 9, 1987, after noting respondent’s unquestionable act of going into hiding and evading service of pleadings/orders/processes of the Court which resulted in his suspension, and after reciting the facts of the case which required no further evidentiary hearing as they spoke for themselves, found respondent guilty of grave professional misconduct, viz.:

“Respondent is guilty of grave professional misconduct. He received from complainant, his client, compensation to handle his case in the Trial Court, but the same was dismissed for lack of interest and failure to prosecute. He had abandoned his client in violation of his contract ignoring the most elementary principles of professional ethics. That Respondent had ignored the processes of this Court and it was only after he was suspended from the practice of law that he surfaced, is highly indicative of his disregard of an attorney’s duties to the Court. All the facts and circumstances taken into consideration, Respondent has proven himself unworthy of the trust reposed in him by law as an officer of the court.”4 (emphasis and underscoring supplied)

The Court thereupon resolved to DISBAR him and order him to reimburse complainant the sum of P16,300 within thirty (30) days from notice. Thus the Court disposed:

“ACCORDINGLY, for malpractice and violation of his oath as a lawyer, 1) respondent Atty. Patricio A. Asoy is hereby ordered DISBARRED; and 2) he is hereby ordered to reimburse complainant, Leonard W. Richards, in the sum of P16,300.00 (P15,000.00 + 1,300.00), the only sums substantiated by the evidence on record, within thirty (30) days from notice hereof.

Copies of this Resolution shall be circulated to all Courts of the country and spread on the personal record of respondent Atty. Patricio A. Asoy.

Copies of this Resolution shall likewise be furnished Complainant Leonard W. Richards, via airmail, at his address of record, 4/169 Avoca Street, Randwick NSW 2031, Australia, with copy furnished the Department of Foreign Affairs for onward transmittal to the Philippine Consulate General, Sydney, Australia.

SO ORDERED.”5 (emphasis and underscoring supplied)

After the promulgation of the July 9, 1987 Resolution, complainant, by letter dated November 3, 1987 which was received by the Court on November 11, 1987,6 complained that respondent had not reimbursed him the P16,300.00.

By Resolution of March 15, 1988, the Court, noting respondent’s failure to comply with its Resolution of July 9, 1987, resolved to require respondents to show cause why he failed to reimburse the P16,300.00 to complainant as required in its Resolution of July 9, 1987, and to comply with said Resolution of July 9, 1987, both within ten days from notice. Complainant, by another letter of January 13, 19897 which was received by the Court on January 20, 1989, informed that respondent still failed to comply with the order for reimbursement to him of P16,300.00.

Thirteen years after the promulgation of the Court’s Resolution disbarring respondent or on July 18, 2000, respondent filed a Petition for “readmission to the practice of law” stating, among other things, that on January 2, 1996 or about nine years after his disbarment and directive to reimbursement complainant was made, he effected payment of P16,300 via consignation with this Court’s Office of the Cashier. By Resolution of December 12, 2000, the Court DENIED the petition for lack of merit.

More than nine years after the Court denied his petition for “readmission to the practice of law” or on August 2, 2010, the Court received another Petition from respondent, for “Reinstatement to the Bar,” stating that, among other things, on January 2, 1996, he effected payment of P16,300.00 in favor of complainant by consignation of the amount with the Office of the Cashier of the Supreme Court as complainant could no longer be found or located; that he had already suffered and agonized for his shortcomings; and that as “positive evidence of his repentance and rehabilitation,” he attached testimonials of “credible institutions and personalities.”

Respondent justifies his belated—nine years—compliance with this Court’s order for him to reimburse complainant the amount with his alleged inability to locate complainant. If that were the case, respondent could have obtained complainant’s address from this Court, either through the Office of the Clerk of Court or the Office of the Bar Confidant. Recall that in his letters of November 3, 1987 and January 20, 1989, complainant’s given address was the same as that stated in the Court’s July 9, 1987 Resolution—4/169 Avoca Street, Randwick NSW 2031, Australia. Respondent’s justification for his 9-year belated “compliance” with the order for him to reimburse complainant glaringly speaks of his lack of candor, of his dishonesty, if not defiance of Court orders, qualities that do not endear him to the esteemed brotherhood of lawyers. The solemn oath which all lawyers take upon admission to the bar to dedicate their lives to the pursuit of justice is neither a mere formality nor hollow words meant to be taken lightly, but a sacred trust that lawyers must uphold and keep inviolable at all times.8 The lack of any sufficient justification or explanation for the nine-year delay in complying with the Court’s July 9, 1987 and March 15, 1988 Resolutions to reimburse complainant betrays a clear and contumacious disregard for the lawful orders of this Court. Such disrespect on the part of respondent constitutes a clear violation of the lawyer’s Code of Professional Responsibility which maintains that:

CANON 7—A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

. . . . . .

CANON 10—A lawyer owes candor, fairness and good faith to the court.

Rule 10.01—A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be misled by any artifice.

Respondent denigrates the dignity of his calling by displaying a lack of candor towards this Court. By taking his sweet time to effect reimbursement of the P16,300.00—and through consignation with this Court at that—he sent out a strong message that the legal processes and orders of this Court could be treated with disdain or impunity.

Parenthetically, respondent’s consignation could not even be deemed compliance with the Court’s directive to reimburse. The Court does not represent complainant; the latter’s postal address was readily ascertainable from the records had respondent wished to communicate with complainant for the purpose of making amends. The records are bereft of proof that respondent had actually resorted to reimbursing the complainant directly. In short, evidence of atonement for respondent’s misdeeds is sorely wanting.

WHEREFORE, respondent Patricio A. Asoy’s petition for reinstatement in the Roll of Attorneys is DENIED.

SO ORDERED.

Corona (C.J.), Carpio-Morales, Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.

Carpio, J., On Official Leave.

Peralta, J., On Leave.

Abad, J., On Official Leave.

Petition denied.

Note.—Membership in the legal profession is a privilege and it demands a high degree of good moral character not only as a condition precedent to admission but also as a continuing requirement for the practice of law. (Yu vs. Palaña, 558 SCRA 21 [2008])

——o0o—— [Richards vs. Asoy, 632 SCRA 599(2010)]

G.R. Nos. 151809-12. April 12, 2005.*

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N.

SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS & RESORT CORP., NORTHERN TOBACCO REDRY-ING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, respondents.

Attorneys; Legal Ethics; In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and other parts of Europe and principal thrust of these standards was directed towards the litigation conduct of lawyers, underscoring the central duty of truth and fairness in litigation as superior to any obligation to the client.—In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and other parts of Europe. The early statements of standards did not resemble modern codes of conduct. They were not detailed or collected in one source but surprisingly were comprehensive for their time. The principal thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the central duty of truth and fairness in litigation as superior to any obligation to the client. The formulations of the litigation duties were at times intricate, including specific pleading standards, an obligation to inform the court of falsehoods and a duty to explore settlement alternatives. Most of the lawyer’s other basic duties—competency, diligence, loyalty, confidentiality, reasonable fees and service to the poor—originated in the litigation context, but ultimately had broader application to all aspects of a lawyer’s practice.

Same; Same; The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly from those in England; Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable fees.—The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly from those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural rules to govern attorney behavior. The difference from England was in the pervasiveness and continuity of such regulation. The standards set in England varied over time, but the variation in early America was far greater. The American regulation fluctuated within a single colony and differed from colony to colony. Many regulations had the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the substantive standards. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable fees.

Same: Same; The nineteenth century has been termed the “dark ages” of legal ethics in the United States.—The nineteenth century has been termed the “dark ages” of legal ethics in the United States. By mid-century, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the highly influential New York “Field Code,” introduced a new set of uniform standards of conduct for lawyers. This concise statement of eight statutory duties became law in several states in the second half of the nineteenth century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other lawyers were working to flesh out the broad outline of a lawyer’s duties. These reformers wrote about legal ethics in unprecedented detail and thus brought a new level of understanding to a lawyer’s duties. A number of mid-nineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of colonial regulations—e.g., the “do no falsehood” oath and the deceit prohibitions—persisted in some states. Procedural law continued to directly, or indirectly, limit an attorney’s litigation behavior. The developing law of agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law started to recognize with less equivocation the attorney-client privilege and its underlying theory of confidentiality. Thus, all of the core duties, with the likely exception of service to the poor, had some basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these standards were isolated and did not provide a comprehensive statement of a lawyer’s duties. The reformers, by contrast, were more comprehensive in their discussion of a lawyer’s duties, and they actually ushered a new era in American legal ethics.

Same; Same; Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their practice—the bar association code of legal ethics; The bar codes were detailed ethical standards formulated by lawyers for lawyers.—Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their practice—the bar association code of legal ethics. The bar codes were detailed ethical standards formulated by lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth century. Like the academic discourses, the bar association codes gave detail to the statutory statements of duty and the oaths of office. Unlike the academic lectures, however, the bar association codes retained some of the official imprimatur of the statutes and oaths. Over time, the bar association codes became

extremely popular that states adopted them as binding rules of law. Critical to the development of the new codes was the re-emergence of bar associations themselves. Local bar associations formed sporadically during the colonial period, but they disbanded by the early nineteenth century. In the late nineteenth century, bar associations began to form again, picking up where their colonial predecessors had left off. Many of the new bar associations, most notably the Alabama State Bar Association and the American Bar Association, assumed on the task of drafting substantive standards of conduct for their members.

Same; Same; In 1917, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the American Bar Association (ABA) Canons of Professional Ethics.—In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.

Same; Same; Conflict of Interest; “Adverse-Interest Conflicts” and “Congruent-Interest Conflicts,” and “Revolving Door,” Explained; Words and Phrases; As early as 1924, some American Bar Association (ABA) members have questioned the form and function of the canons and among their concerns was the “revolving door” or “the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service”; “Adverse-interest conflicts” exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse; “Congruent-interest representation conflicts” are unique to government lawyers and apply primarily to former government lawyers, prohibiting lawyers from representing a private practice client even if the interests of the former government client and the new client are entirely parallel.—As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the “revolving door” or “the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service.” These concerns were classified as “adverse-interest conflicts” and “congruent-interest conflicts.” “Adverse-interest conflicts” exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse. On the other hand, “congruent-interest representation conflicts” are unique to government lawyers and apply primarily to former government lawyers. The use of the word “conflict” is a misnomer; “congruent-interest representation conflicts” arguably do not involve conflicts at all, as it prohibits lawyers from representing a private practice client even if the interests of the former government client and the new client are entirely parallel.

Same; Same; Same; Code of Professional Responsibility; On June 21, 1988, the Supreme Court promulgated the Code of Professional Responsibility, Rule 6.03 of which dealing particularly with former government lawyers.—In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code of Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21, 1988, this Court promulgated the Code of Professional Responsibility. Rule 6.03 of the Code of Professional Responsibility deals particularly with former government lawyers, and provides, viz.: Rule 6.03—A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive phrase “investigated and passed upon” with the word “intervened.” It is, therefore, properly applicable to both “adverse-interest conflicts” and “congruent-interest conflicts.”

Same; Same; Same; Same; Words and Phrases; The American Bar Association in its Formal Opinion 342, defined “matter” as any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.— The key to unlock Rule 6.03 lies in comprehending first, the meaning of “matter” referred to in the rule and, second, the metes and bounds of the “intervention” made by the former government lawyer on the “matter.” The American Bar Association in its Formal Opinion 342, defined “matter” as any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.

Same; Same; Same; Same; The advice given by respondent Mendoza, as then Solicitor General on the procedure to liquidate GENBANK is not the “matter” contemplated by Rule 6.03 of the Code of Professional Responsibility.—The “matter” or the act of respondent Mendoza as Solicitor General involved in the case at bar is “advising the Central Bank, on how to proceed with the said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila.” In fine, the Court should resolve whether his act of advising the Central Bank on the legal procedure to liquidate GENBANK is included within the concept of “matter” under Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section 29, viz.: x x x We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the “matter” contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the “drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law” are acts which do not fall within the scope of the term “matter” and cannot disqualify.

Same; Same; Same; Same; Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 (liquidation of Genbank) is an intervention on a matter different from the matter involved in Civil Case No. 0096 (sequestration of the stocks in Allied Bank, the successor of Genbank, on the ground that they are ill-gotten).—It can even be conceded for the sake of argument that the above act of respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent Mendoza which is the “matter” involved in Sp. Proc. No. 107812 is entirely different from the “matter” involved in Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in the sale of GENBANK to Allied Bank. The “matter” where he got himself involved was in informing Central Bank on the procedure provided by law to liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject “matter” of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different from the subject “matter” in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the alleged banking malpractices of its owners and officers. In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096.

Same; Same; Same; Same; Words and Phrases; It is the second interpretation of the word “intervene”—which only includes an act of a person who has the power to influence the subject proceedings, that is more appropriate under Rule 6.03 of the Code of Professional Responsibility in light of its history—in fine, the intervention cannot be insubstantial and insignificant.—There are, therefore, two possible interpretations of the word “intervene.” Under the first interpretation, “intervene” includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence. Under the second interpretation, “intervene” only includes an act of a person who has the power to influence the subject proceedings. We hold that this second meaning is more appropriate to give to the word “intervention” under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do not exist where the government lawyer does an act which can be considered as innocuous such as “x x x drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.” In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a former government lawyer “should not, after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.” As aforediscussed, the broad sweep of the phrase “which he has investigated or passed upon” resulted in unjust disqualification of former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in which the lawyer, while in the government service, had “substantial responsibility.” The 1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that “a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.”

Same; Same; Same; Same; Banks and Banking; Liquidation; The principal role of the court in a liquidation of a bank is to assist the Central Bank in determining claims of creditors against the bank—the role of the court is not strictly as a court of justice but as an agent to assist the Central Bank in determining the claims of creditors.—It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant and substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is arid as to the actual participation of respondent Mendoza

in the subsequent proceedings. Indeed, the case was in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover, we note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The principal role of the court in this type of proceedings is to assist the Central Bank in determining claims of creditors against the GENBANK. The role of the court is not strictly as a court of justice but as an agent to assist the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the Office of the Solicitor General is not that of the usual court litigator protecting the interest of government.

Same; Same; Same; Same; Disqualification of Counsel; Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the Integrated Bar of the Philippines to upgrade the ethics of lawyers in the government service.—Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in the United States is still fine tuning its DR 9-101(b) rule.

Same; Same; Same; Same; Same; Policy Considerations; Rule 6.03 is not to be interpreted to cause a chilling effect on government recruitment of able legal talent.—In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took account of various policy considerations to assure that its interpretation and application to the case at bar will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not interpreted to cause a chilling effect on government recruitment of able legal talent. At present, it is already difficult for government to match compensation offered by the private sector and it is unlikely that government will be able to reverse that situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice. Rightly, Judge Kaufman warned that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified. Indeed, “to make government service more difficult to exit can only make it less appealing to enter.”

Same; Same; Same; Same; Same; Same; In interpreting Rule 6.03, the Supreme Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation—the danger that the rule will be misused to bludgeon an opposing counsel is not a mere guesswork.— In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation. The danger that the rule will be misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has noted “the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the opposing party of counsel of its choice, and harass and embarrass the opponent,” and observed that the tactic was “so prevalent in large civil cases in recent years as to prompt frequent judicial and academic commentary.” Even the United States Supreme Court found no quarrel with the Court of Appeals’ description of disqualification motions as “a dangerous game.” In the case at bar, the new attempt to disqualify respondent Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead issue. It was resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of respondent Mendoza.

Same; Same; Same; Same; Same; Same; The Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its misapplication—it cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence.—The Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its misapplication. It cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence. The client with a disqualified lawyer must start again often without the benefit of the work done by the latter. The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it can result in denial of due process.

Same; Same; Same; Same; Same; Same; The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service.— The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service. According to Prof. Morgan: “An individual who has the security of knowing he or she can find private employment upon leaving the government is free to work vigorously, challenge official positions when he or she believes them to be in error, and resist illegal demands by superiors. An employee who lacks this assurance of private employment does not enjoy such freedom.” He adds: “Any system that affects the right to take a new job affects the ability to quit the old job and any limit on the ability to quit inhibits official

independence.” The case at bar involves the position of Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor General should be endowed with a great degree of independence. It is this independence that allows the Solicitor General to recommend acquittal of the innocent; it is this independence that gives him the right to refuse to defend officials who violate the trust of their office. Any undue diminution of the independence of the Solicitor General will have a corrosive effect on the rule of law.

Same; Same; Same; Same; Same; Same; No less significant a consideration is the deprivation of the former government lawyer of the freedom to exercise his profession.—No less significant a consideration is the deprivation of the former government lawyer of the freedom to exercise his profession. Given the current state of our law, the disqualification of a former government lawyer may extend to all members of his law firm. Former government lawyers stand in danger of becoming the lepers of the legal profession.

Same; Same; Same; Same; Same; The accuracy of gauging public perceptions is a highly speculative exercise at best which can lead to untoward results.—The mischief sought to be remedied by Rule 6.03 of the Code of Professional Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best which can lead to untoward results. No less than Judge Kaufman doubts that the lessening of restrictions as to former government attorneys will have any detrimental effect on that free flow of information between the govern-ment-client and its attorneys which the canons seek to protect. Notably, the appearance of impropriety theory has been rejected in the 1983 ABA Model Rules of Professional Conduct and some courts have abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the public.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.

The facts are stated in the opinion of the Court.

The Solicitor General for petitioner.

Estelito P. Mendoza and Orlando A. Santiago for respondents Lucio C. Tan, et al.

PUNO, J.:

This case is prima impressiones and it is weighted with significance for it concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers in government service and on the other, its effect on the right of government to recruit competent counsel to defend its interests.

In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. GENBANK had extended considerable financial support to Filcapital Development Corporation causing it to incur daily overdrawings on its current account with the Central Bank.1 It was later found by the Central Bank that GENBANK had approved various loans to directors, officers, stockholders and related interests totaling P172.3 million, of which 59% was classified as doubtful and P0.505 million as uncollectible.2 As a bailout, the Central Bank extended emergency loans to GENBANK which reached a total of P310 million.3 Despite the mega loans, GENBANK failed to recover from its financial woes. On March 25, 1977, the Central Bank issued a resolution declaring GENBANK insolvent and unable to resume business with safety to its depositors, creditors and the general public, and ordering its liquidation.4 A public bidding of GENBANK’s assets was held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the winning bid.5 Subsequently, former Solicitor General Estelito P. Mendoza filed a petition with the then Court of First Instance praying for the assistance and supervision of the court in GENBANK’s liquidation as mandated by Section 29 of Republic Act No. 265.

In February 1986, the EDSA I revolution toppled the Marcos government. One of the first acts of President Corazon C. Aquino was to establish the Presidential Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of former President Ferdinand Marcos, his family and his cronies. Pursuant to this mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for “reversion, reconveyance, restitution, accounting and damages” against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second Division of the Sandiganbayan.6 In connection therewith, the PCGG issued several writs of sequestration on properties allegedly acquired by the above-named persons by taking advantage of their close relationship and influence with former President Marcos.

Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition and injunction to nullify, among others, the writs of sequestration issued by the PCGG.7 After the filing of the parties’ comments, this Court referred the cases to the Sandiganbayan for proper disposition. These cases were docketed as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel, former Solicitor General Estelito P. Mendoza, who has then resumed his private practice of law.

On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos. 00058 and 0096-0099.9 The motions alleged that respondent Mendoza, as then Solicitor General10 and counsel to Central Bank, “actively intervened” in the liquidation of GEN-BANK, which was subsequently acquired by respondents Tan, et al. and became Allied Banking Corporation. Respondent Mendoza allegedly “intervened” in the acquisition of GEN-BANK by respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the Central Bank’s officials on the procedure to bring about GENBANK’s liquidation and appeared as counsel for the Central Bank in connection with its petition for assistance in the liquidation of GENBANK which he filed with the Court of First Instance (now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule 6.03 prohibits former government lawyers from accepting “engagement or employment in connection with any matter in which he had intervened while in said service.”

On April 22, 1991, the Second Division of the Sandiganbayan issued a resolution denying PCGG’s motion to disqualify respondent Mendoza in Civil Case No. 0005.11 It found that the PCGG failed to prove the existence of an inconsistency between respondent Mendoza’s former function as Solicitor General and his present employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position adverse to that taken on behalf of the Central Bank during his term as Solicitor General.12 It further ruled that respondent Mendoza’s appearance as counsel for respondents Tan, et al. was beyond the one-year prohibited period under Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The said section prohibits a former public official or employee from practicing his profession in connection with any matter before the office he used to be with within one year from his resignation, retirement or separation from public office.13 The PCGG did not seek any reconsideration of the ruling.14

It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayan’s Second Division to the Fifth Division.15 In its resolution dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGG’s motion to disqualify respondent Mendoza.16 It adopted the resolution of its Second Division dated April 22, 1991, and observed that the arguments were the same in substance as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was denied in its resolution dated December 5, 2001.17

Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure.18 The PCGG alleged that the Fifth Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of the Code of Professional Responsibility prohibits a former government lawyer from accepting

employment in connection with any matter in which he intervened; 2) the prohibition in the Rule is not time-bound; 3) that Central Bank could not waive the objection to respondent Mendoza’s appearance on behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.19

The petition at bar raises procedural and substantive issues of law. In view, however, of the import and impact of Rule 6.03 of the Code of Professional Responsibility to the legal profession and the government, we shall cut our way and forthwith resolve the substantive issue.

I Substantive Issue

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

I.A. The history of Rule 6.03

A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03 of the Code of Professional Responsibility.

In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and other parts of Europe. The early statements of standards did not resemble modern codes of conduct. They were not detailed or collected in one source but surprisingly were comprehensive for their time. The principal thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the central duty of truth and fairness in litigation as superior to any obligation to the client. The formulations of the litigation duties were at times intricate, including specific pleading standards, an obligation to inform the court of falsehoods and a duty to explore settlement alternatives. Most of the lawyer’s other basic duties—competency, diligence, loyalty, confidentiality, reasonable fees and service to the poor—originated in the litigation context, but ultimately had broader application to all aspects of a lawyer’s practice.

The forms of lawyer regulation in colonial and early postrevolutionary America did not differ markedly from those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural rules to govern attorney behavior. The difference from England was in the pervasiveness and continuity of such regulation. The standards set in England varied over time, but the variation in early America was far greater. The American regulation fluctuated within a single colony and differed from colony to colony. Many regulations had the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the substantive standards. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable fees.20

The nineteenth century has been termed the “dark ages” of legal ethics in the United States. By mid-century, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the highly influential New York “Field Code,” introduced a new set of uniform standards of conduct for lawyers. This concise statement of eight statutory duties became law in several states in the second half of the nineteenth century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other lawyers were working to flesh out the broad outline of a lawyer’s duties. These reformers wrote about legal ethics in unprecedented detail and thus brought a new level of understanding to a lawyer’s duties. A number of mid-nineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of colonial regulations—e.g., the “do no falsehood” oath and the deceit prohibitions—persisted in some states. Procedural law continued to directly, or indirectly, limit an attorney’s litigation behavior. The developing law of agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law started to recognize with less equivocation the attorney-client privilege and its underlying theory of confidentiality. Thus, all of the core duties, with the likely exception of service to the poor, had some basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these standards were isolated and did not provide a comprehensive statement of a lawyer’s duties. The reformers, by contrast, were more comprehensive in their discussion of a lawyer’s duties, and they actually ushered a new era in American legal ethics.21

Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their practice—the bar association code of legal ethics. The bar codes were detailed ethical standards formulated by lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth century. Like the academic

discourses, the bar association codes gave detail to the statutory statements of duty and the oaths of office. Unlike the academic lectures, however, the bar association codes retained some of the official imprimatur of the statutes and oaths. Over time, the bar association codes became extremely popular that states adopted them as binding rules of law. Critical to the development of the new codes was the re-emergence of bar associations themselves. Local bar associations formed sporadically during the colonial period, but they disbanded by the early nineteenth century. In the late nineteenth century, bar associations began to form again, picking up where their colonial predecessors had left off. Many of the new bar associations, most notably the Alabama State Bar Association and the American Bar Association, assumed on the task of drafting substantive standards of conduct for their members.22

In 1887, Alabama became the first state with a comprehensive bar association code of ethics. The 1887 Alabama Code of Ethics was the model for several states’ codes, and it was the foundation for the American Bar Association’s (ABA) 1908 Canons of Ethics.23

In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.24

As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the “revolving door” or “the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service.”25 These concerns were classified as “adverse-interest conflicts” and “congruent-interest conflicts.” “Adverse-interest conflicts” exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse.26 On the other hand, “congruent-interest representation conflicts” are unique to government lawyers and apply primarily to former government lawyers.27 For several years, the ABA attempted to correct and update the canons through new canons, individual amendments and interpretative opinions. In 1928, the ABA amended one canon and added thirteen new canons.28 To deal with problems peculiar to former government lawyers, Canon 36 was minted which disqualified them both for “adverse-interest conflicts” and “congruent-interest representation conflicts.”29 The rationale for disqualification is rooted in a concern that the government lawyer’s largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients.30 Canon 36 provides, viz.:

36. Retirement from judicial position or public employment

A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

A lawyer, having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ.

Over the next thirty years, the ABA continued to amend many of the canons and added Canons 46 and 47 in 1933 and 1937, respectively.31

In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA Canons of Professional Ethics.32

By the middle of the twentieth century, there was growing consensus that the ABA Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for the creation of a committee to study the “adequacy and effectiveness” of the ABA Canons. The committee recommended that the canons needed substantial revision, in part because the ABA Canons failed to distinguish between “the inspirational and the proscriptive” and were thus unsuccessful in enforcement. The legal profession in the United States likewise observed that Canon 36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification of lawyers for negligible participation in matters during their employment with the government.

The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of Professional Responsibility.33 The basic ethical principles in the Code of Professional Responsibility were supplemented by Disciplinary Rules that defined minimum rules of conduct to which the lawyer must adhere.34

In the case of Canon 9, DR 9-101(b)35 became the applicable supplementary norm. The drafting committee reformulated the canons into the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of Delegates approved the Model Code.36

Despite these amendments, legal practitioners remained unsatisfied with the results and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of Professional Responsibility. The Model Rules used the “restatement format,” where the conduct standards were set-out in rules, with comments following each rule. The new format was intended to give better guidance and clarity for enforcement “because the only enforceable standards were the black letter Rules.” The Model Rules eliminated the broad canons altogether and reduced the emphasis on narrative discussion, by placing comments after the rules and limiting comment discussion to the content of the black letter rules. The Model Rules made a number of substantive improvements particularly with regard to conflicts of interests.37 In particular, the ABA did away with Canon 9, citing the hopeless dependence of the concept of impropriety on the subjective views of anxious clients as well as the norm’s indefinite nature.38

In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code of Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21, 1988, this Court promulgated the Code of Professional Responsibility.39 Rule 6.03 of the Code of Professional Responsibility deals particularly with former government lawyers, and provides, viz.:

Rule 6.03—A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.

Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive phrase “investigated and passed upon” with the word “intervened.” It is, therefore, properly applicable to both “adverse-interest conflicts” and “congruent-interest conflicts.”

The case at bar does not involve the “adverse interest” aspect of Rule 6.03. Respondent Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before the Sandiganbayan. Nonetheless, there remains the issue of whether there exists a “congruent-interest conflict” sufficient to disqualify respondent Mendoza from representing respondents Tan, et al.I.B. The “congruent interest” aspect of Rule 6.03

The key to unlock Rule 6.03 lies in comprehending first, the meaning of “matter” referred to in the rule and, second, the metes and bounds of the “intervention” made by the former government lawyer on the “matter.” The American Bar Association in its Formal Opinion 342, defined “matter” as any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.

Firstly, it is critical that we pinpoint the “matter” which was the subject of intervention by respondent Mendoza while he was the Solicitor General. The PCGG relates the following acts of respondent Mendoza as constituting the “matter” where he intervened as a Solicitor General, viz.:40

The PCGG’s Case for Atty. Mendoza’s Disqualification

The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in the closure of GENBANK by advising the Central Bank on how to proceed with the said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila.

As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain key officials of the Central Bank, namely, then Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a conference with the Solicitor General (Atty. Mendoza), who advised them on how to proceed with the liquidation of GENBANK. The pertinent portion of the said memorandum states:

Immediately after said meeting, we had a conference with the Solicitor General and he advised that the following procedure should be taken:

1) Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank can not be reorganized or placed in a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public.

2) If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate the manner of its liquidation and approve a liquidation plan.

3) The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the bank and the liquidation plan approved by the Monetary Board.

4) The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which had been taken and praying the assistance of the Court in the liquidation of Genbank.

The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where it was shown that Atty. Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid him in filing with the court the petition for assistance in the bank’s liquidation. The pertinent portion of the said minutes reads:

The Board decided as follows:

. . .

E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum of the Director, Department of Commercial and Savings Bank dated March 29, 1977, together with copies of:

1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary Board, dated March 25, 1977, containing a report on the current situation of Genbank;

2.Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977;

3. Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended by P.D. No. 1007, a repot on the state of insolvency of Genbank, together with its attachments; and

4. Such other documents as may be necessary or needed by the Solicitor General for his use in then CFI-praying the assistance of the Court in the liquidation of Genbank.

Beyond doubt, therefore, the “matter” or the act of respondent Mendoza as Solicitor General involved in the case at bar is “advising the Central Bank, on how to proceed with the said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila.” In fine, the Court should resolve whether his act of advising the Central Bank on the legal procedure to liquidate GENBANK is included within the concept of “matter” under Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section 29, viz.:

The provision reads in part:

SEC. 29. Proceedings upon insolvency.—Whenever, upon examination by the head of the appropriate supervising or examining department or his examiners or agents into the condition of any bank or non-bank financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the facts, and the Board may, upon finding the statements of the department head to be true, forbid the institution to do business in the Philippines and shall designate an official of the Central Bank or a person of recognized competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as expeditiously as possible collect and gather all the assets and administer the same for the benefit of its creditors, exercising all the powers necessary for these purposes including, but not limited to, bringing suits and foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasibanking functions.

. . .

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

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

Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank financial intermediary performing quasi-banking functions to pay its liabilities as they fall due in the usual and ordinary course of business. Provided, however, That this shall not include the inability to pay of an otherwise non-insolvent bank or non-bank financial intermediary performing quasi-banking functions caused by extraordinary demands induced by financial panic commonly evidenced by a run on the bank or non-bank financial intermediary performing quasi-banking functions in the banking or financial community.

The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver under this Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to the contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)

We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the “matter” contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the “drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law” are acts which do not fall within the scope of the term “matter” and cannot disqualify.

Secondly, it can even be conceded for the sake of argument that the above act of respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent Mendoza which is the “matter” involved in Sp. Proc. No. 107812 is entirely different from the “matter” involved in Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in the sale of GENBANK to Allied Bank. The “matter” where he got himself involved was in informing Central Bank on the procedure provided by law to liquidate GEN-BANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject “matter” of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different from the subject “matter” in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are illgotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the alleged banking malpractices of its owners and officers. In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096.

Thirdly, we now slide to the metes and bounds of the “intervention” contemplated by Rule 6.03. “Intervene” means, viz.:

1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or come in between points of time or events . . . 3: to come in or between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two things (Paris, where the same city lay on both sides of an intervening river . . .)41

On the other hand, “intervention” is defined as:

1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the interests of others.42

There are, therefore, two possible interpretations of the word “intervene.” Under the first interpretation, “intervene” includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence.43 Under the second interpretation, “intervene” only includes an act of a person who has the power to influence the subject proceedings.44 We hold that this second meaning is more appropriate to give to the word “intervention” under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do not exist where the government lawyer does an act which can be considered as innocuous such as “x x x drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.”

In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a former government lawyer “should not, after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.” As aforediscussed, the broad sweep of the phrase “which he has investigated or passed upon” resulted in unjust disqualification of former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in which the lawyer, while in the government service, had “substantial responsibility.” The 1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that “a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.”

It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant and substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is arid as to the actual participation of respondent Mendoza in the subsequent proceedings. Indeed, the case was in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover, we note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The principal role of the court in this type of proceedings is to assist the Central Bank in determining claims of creditors against the GEN-BANK. The role of the court is not strictly as a court of justice but as an agent to assist the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the Office of the Solicitor General is not that of the usual court litigator protecting the interest of government.

II Balancing Policy Considerations

To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in the United States is still fine tuning its DR 9-101(b) rule.

In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took account of various policy considerations to assure that its interpretation and application to the case at bar will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not interpreted to cause a chilling effect on government recruitment of able legal talent. At present, it is already difficult for government to match compensation offered by the private sector and it is unlikely that government will be able to reverse that situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice.45 Rightly, Judge Kaufman warned that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified.46 Indeed, “to make government service more difficult to exit can only make it less appealing to enter.”47

In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation. The danger that the rule will be misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has noted “the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the opposing party of counsel of its choice, and harass and embarrass the opponent,” and observed that the tactic was “so prevalent in large civil cases in recent years as to prompt frequent judicial and academic commentary.”48 Even the United States Supreme Court found no quarrel with the Court of Appeals’ description of disqualification motions as “a dangerous game.”49 In the case at bar, the new attempt to disqualify respondent Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead issue. It was resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar was filed more than four years after the filing of the petitions for certiorari, prohibition and injunction with the Supreme Court which were subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos. 0096-0099.50 At the very least, the circumstances under which the motion to disqualify in the case at bar were re-filed put petitioner’s motive as highly suspect.

Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its misapplication. It cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence.51 The client with a disqualified lawyer must start again often without the benefit of the work done by the latter.52 The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it can result in denial of due process.

The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service. According to Prof. Morgan: “An individual who has the security of knowing he or she can find private employment upon leaving the government is free to work vigorously, challenge official positions

when he or she believes them to be in error, and resist illegal demands by superiors. An employee who lacks this assurance of private employment does not enjoy such freedom.”53 He adds: “Any system that affects the right to take a new job affects the ability to quit the old job and any limit on the ability to quit inhibits official independence.”54 The case at bar involves the position of Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor General should be endowed with a great degree of independence. It is this independence that allows the Solicitor General to recommend acquittal of the innocent; it is this independence that gives him the right to refuse to defend officials who violate the trust of their office. Any undue diminution of the independence of the Solicitor General will have a corrosive effect on the rule of law.

No less significant a consideration is the deprivation of the former government lawyer of the freedom to exercise his profession. Given the current state of our law, the disqualification of a former government lawyer may extend to all members of his law firm.55 Former government lawyers stand in danger of becoming the lepers of the legal profession.

It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of Professional Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best56 which can lead to untoward results.57 No less than Judge Kaufman doubts that the lessening of restrictions as to former government attorneys will have any detrimental effect on that free flow of information between the government-client and its attorneys which the canons seek to protect.58 Notably, the appearance of impropriety theory has been rejected in the 1983 ABA Model Rules of Professional Conduct59 and some courts have abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the public.60

It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers who “switch sides.” It is claimed that “switching sides” carries the danger that former government employee may compromise confidential official information in the process. But this concern does not cast a shadow in the case at bar. As afore-discussed, the act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate GENBANK is a different matter from the subject matter of Civil Case No. 0005 which is about the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that confidential official information might be divulged is nil, if not inexistent. To be sure, there are no inconsistent “sides” to be bothered about in the case at bar. For there is no question that in lawyering for respondents Tan, et al., respondent Mendoza is not working against the interest of Central Bank. On the contrary, he is indirectly defending the validity of the action of Central Bank in liquidating GEN-BANK and selling it later to Allied Bank. Their interests coincide instead of colliding. It is for this reason that Central Bank offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no switching of sides for no two sides are involved.

It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of loyalties, i.e., that a government employee might be subject to a conflict of loyalties while still in government service.61 The example given by the proponents of this argument is that a lawyer who plans to work for the company that he or she is currently charged with prosecuting might be tempted to prosecute less vigorously.62 In the cautionary words of the Association of the Bar Committee in 1960: “The greatest public risks arising from post employment conduct may well occur during the period of employment through the dampening of aggressive administration of government policies.”63 Prof. Morgan, however, considers this concern as “probably excessive.”64 He opines “x x x it is hard to imagine that a private firm would feel secure hiding someone who had just been disloyal to his or her last client—the government. Interviews with lawyers consistently confirm that law firms want the ‘best’ government lawyers—the ones who were hardest to beat—not the least qualified or least vigorous advocates.”65 But again, this particular concern is a non factor in the case at bar. There is no charge against respondent Mendoza that he advised Central Bank on how to liquidate GENBANK with an eye in later defending respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank and respondents Tan, et al. in the above cases.

Likewise, the Court is nudged to consider the need to curtail what is perceived as the “excessive influence of former officials” or their “clout.”66 Prof. Morgan again warns against extending this concern too far. He explains the rationale for his warning, viz.: “Much of what appears to be an employee’s influence may actually be the power or authority of his or her position, power that evaporates quickly upon departure from government x x x.”67 More, he contends that the concern can be demeaning to those sitting in government. To

quote him further: “x x x The idea that, present officials make significant decisions based on friendship rather than on the merit says more about the present officials than about their former co-worker friends. It implies a lack of will or talent, or both, in federal officials that does not seem justified or intended, and it ignores the possibility that the officials will tend to disfavor their friends in order to avoid even the appearance of favoritism.”68

III The question of fairness

Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest prong of Rule 6.03 of the Code of Professional Responsibility should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made after the lapse of time whose length cannot, by any standard, qualify as reasonable. At bottom, the point they make relates to the unfairness of the rule if applied without any prescriptive period and retroactively, at that. Their concern is legitimate and deserves to be initially addressed by the IBP and our Committee on Revision of the Rules of Court.

IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.

No cost.

SO ORDERED. [Presidential Commission on Good Government vs. Sandiganbayan, 455 SCRA 526(2005)]

A.M. No. RTJ-08-2103. February 23, 2009.*

(Formerly OCA I.P.I. No. 07-2664–RTJ)

EDNA S.V. OGKA BENITO, complainant, vs. RASAD G. BALINDONG, Presiding Judge, Regional Trial Court, Malabang, Lanao del Sur, Branch 12, respondent.

Courts; Judges; Gross Ignorance of the Law; A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law—judges are expected to exhibit more than just cursory acquaintance with laws and procedural rules.—A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law. Judges

are expected to exhibit more than just cursory acquaintance with laws and procedural rules. They must know the law and apply it properly in good faith. They are likewise expected to keep abreast of prevailing jurisprudence. For a judge who is plainly ignorant of the law taints the noble office and great privilege vested in him. Respondent’s gross ignorance of the law constituted inexcusable incompetence which was anathema to the effective dispensation of justice.

Same; Same; Same; Ombudsman Act (R.A. No. 6770); Under Sections 14 and 27 of Republic Act (R.A.) 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.—In SCA No. 12-181, respondents in OMB-M-A-05-175-E sought to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation. Since D.O. No. 2006-38 was issued merely to implement the decision of the Ombudsman, respondents in OMB-M-A-05-175-E were actually questioning this decision and seeking to enjoin its implementation by filing a petition for certiorari and prohibition in the RTC. This is not allowed under the law, rules and jurisprudence. Under Sections 14 and 27 of RA 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.

Same; Same; Same; Same; Court of Appeals; In Fabian v. Desierto, 295 SCRA 470 (1998), the Court enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals.—In Fabian v. Desierto, 295 SCRA 470 (1998), we enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the CA. Following our ruling in Fabian, the Ombudsman issued Administrative Order No. 17 amending Section 7, Rule III of Administrative Order No. 07: Section 7. Finality and execution of decision.—Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

Same; Same; Same; Good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error; If ordinary people are presumed to know the law, judges are duty-bound to actually know and understand it.—Respondent’s defense of good faith has no merit. Indeed, good faith and absence of malice, corrupt motives or improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can find refuge. However … good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error. If ordinary people are presumed to know the law, judges are duty-bound to actually know and understand it. A contrary rule will not only lessen the faith of the people in the courts but will also defeat the fundamental role of the judiciary to render justice and promote the rule of law.

Same; Same; Same; Judicial Ethics; A judge’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.—Gross ignorance of the law or procedure is a serious charge under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, punishable by either dismissal from service, suspension or a fine of more than P20,000 but not exceeding P40,000. Since this is respondent’s first offense, we deem it proper to impose upon him a fine of P30,000. Members of the bench are enjoined to behave at all times in a way that promotes public confidence in the integrity and impartiality of the judiciary. Respondent’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.

Same; Same; Same; Same; Legal Ethics; A.M. No. 02-9-02-SC; The act of a judge of issuing a Temporary Restraining Order (TRO) and writ of preliminary injunction and subsequently granting the petition, contrary to law, rules and jurisprudence amounts to consenting to the filing of an unlawful suit, in violation of the Lawyer’s Oath; A judge who falls short of the ethics of the judicial office tends to diminish the people’s respect for the law and legal processes.—Pursuant to A.M. No. 02-9-02-SC, this administrative case against respondent as a judge, based on grounds which are also grounds for disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar. When respondent entertained SCA No. 12-181, issued a TRO and writ of preliminary injunction and subsequently granted the petition, he acted contrary to law, rules and jurisprudence. In doing so, he consented to the filing of an unlawful suit, in violation of the Lawyer’s Oath. A judge who falls short of the ethics of the judicial office tends to diminish

the people’s respect for the law and legal processes. He also fails to observe and maintain the esteem due to the courts and to judicial officers. Thus, respondent violated Canons 1 and 11 of the Code of Professional Responsibility (CPR).

Same; Same; Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments.—Respondent’s gross ignorance of the law also runs counter to Canons 5 and 6 of the CPR: Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence. Canon 6. These Canons shall apply to lawyers in government service in the discharge of their official tasks. Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments. For such violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the CPR, respondent is fined in the amount of P10,000.

ADMINISTRATIVE MATTER in the Supreme Court. Gross Ignorance of the Law.

The facts are stated in the resolution of the Court.

R E S O L U T I O N

CORONA, J.:

In a complaint dated April 30, 2007, complainant Dr. Edna S.V. Ogka Benito, then acting mayor of the Municipality of Balabagan, Lanao del Sur, charged respondent Judge Rasad G. Balindong of the Regional Trial Court (RTC), Malabang, Lanao del Sur, Branch 12, with gross ignorance of the law.

Complainant alleged that on May 3, 2005, she filed administrative and criminal complaints against Mamarinta G. Macabato, then municipal treasurer of Balabagan, Lanao del Sur, for grave misconduct in the Office of the Ombudsman-Mindanao (Ombudsman) docketed as OMB-M-A-05-175-E. On September 15, 2005, the Ombudsman impleaded then Mayor Hadji Amer R. Sampiano as co-respondent. Complainant claimed that these respondents refused to pay her salary as vice mayor since July 1, 2004 despite repeated demands.1

On May 16, 2006, the Ombudsman rendered a decision in that case finding respondents therein guilty of conduct prejudicial to the best interest of the service and imposing on them the penalty of suspension from office without pay for a period of nine months. It further directed the Regional Secretary2 of the Department of the Interior and Local Government, Autonomous Region in Muslim Mindanao (DILG-ARMM) in Cotabato City to immediately implement the decision.3

In compliance with the decision of the Ombudsman, the Regional Secretary of the DILG-ARMM issued Department Order (D.O.) No. 2006-38 dated September 1, 2006 implementing said decision.4 Due to the suspension of Mayor Sampiano, complainant was sworn in as acting mayor.5

Meanwhile, on September 4, 2006, respondents in OMB-M-A-05-175-E filed a petition for certiorari and prohibition6 in the RTC of Malabang, Lanao del Sur, Branch 12. The petition was raffled to the sala of herein respondent and docketed as Special Civil Action (SCA) No. 12-181. Their prayer was to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation.7

On the same date, respondent issued an order granting a temporary restraining order (TRO) effective for 72 hours directing the Regional Secretary of the DILG-ARMM to cease, desist and refrain from implementing the D.O.8

In an order dated September 6, 2006, respondent extended the TRO for a period of 20 days.9

On September 25, 2006, respondent issued another order for the issuance of a writ of preliminary injunction directing the Regional Secretary to cease, desist and refrain from implementing D.O. No. 2006-38.

On October 5, 2006, respondent rendered an “order”/

decision annulling D.O. No. 2006-38.10 This decision and the writ of preliminary injunction were annulled by the Court of Appeals (CA) in its February 8, 2007 decision.11 The CA held that the RTC had no jurisdiction over the petition filed by the respondents in OMB-M-A-05-175-E pursuant to Sections 14 and 27 of Republic Act No. (RA) 677012 (Ombudsman Act of 1989) and Section 7, Rule III of the Rules of Procedure of the Ombudsman, as amended by Administrative Order No. 17-03.

Complainant asserted that, despite the clear provisions of the law and procedure, respondent took cognizance of SCA No. 12-181 and issued the TROs, writ of preliminary injunction and October 5, 2006 decision. Hence, she submitted that respondent should be administratively disciplined because of his gross ignorance of the law which prejudiced the rights of her constituents in Balabagan, Lanao del Sur.13

Respondent countered that he issued the orders in good faith. He was not moved by corrupt motives or improper considerations. This could be shown by the fact that complainant filed this complaint only after eight months from the resolution of SCA No. 12-181. Considering that complainant failed to establish bad faith or malevolence on his part, the complaint against him should be dismissed.

The Office of the Court Administrator (OCA), in its evaluation dated September 24, 2007, found that the pertinent provisions of the law were clear. It stated that:

“… the issuance of a TRO and writ of preliminary injunction is not a mere deficiency in prudence, or lapse of judgment by respondent judge but is a blatant disregard of basic rules constitutive of gross ignorance of the law. In the first place, respondent Judge should have refrained from taking cognizance of the said special civil action when it was raffled to his court, he ought to know this, yet he did otherwise.”

It recommended that respondent be held administratively liable for gross ignorance of the law and fined P21,000.14

We agree with the findings and evaluation of the OCA but we modify the penalty.

A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law.15 Judges are expected to exhibit more than just cursory acquaintance with laws and procedural rules.16 They must know the law and apply it properly in good faith.17 They are likewise expected to keep abreast of prevailing jurisprudence.18 For a judge who is plainly ignorant of the law taints the noble office and great privilege vested in him. Respondent’s gross ignorance of the law constituted inexcusable incompetence which was anathema to the effective dispensation of justice.

In SCA No. 12-181, respondents in OMB-M-A-05-175-E sought to annul and set aside D.O. No. 2006-38 of the DILG-ARMM and prohibit its implementation. Since D.O. No. 2006-38 was issued merely to implement the decision of the Ombudsman, respondents in OMB-M-A-05-175-E were actually questioning this decision and seeking to enjoin its implementation by filing a petition for certiorari and prohibition in the RTC.

This is not allowed under the law, rules and jurisprudence. Under Sections 14 and 27 of RA 6770, no court shall hear any appeal or application for a remedy against the decision or findings of the Ombudsman, except the Supreme Court, on a pure question of law.

“Section 14. Restrictions.—No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on [a] pure question of law.

x x x   x x x   x x x

Section 27. Effectivity and Finality of Decisions.—(1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

x x x   x x x   x x x

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month’s salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.”

However, in Fabian v. Desierto,19 we enunciated the rule that appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the CA. Following our ruling in Fabian, the Ombudsman issued Administrative Order No. 1720 amending Section 7, Rule III21 of Administrative Order No. 07:22

“Section 7. Finality and execution of decision.—Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.” (Emphasis supplied)

These provisions clearly show that respondent had no jurisdiction to take cognizance of the petition and to issue his subsequent orders. He proceeded against settled doctrine, an act constituting gross ignorance of the law or procedure.23

Respondent’s defense of good faith has no merit. Indeed, good faith and absence of malice, corrupt motives or improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can find refuge.24 However

“… good faith in situations of fallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error.”25

If ordinary people are presumed to know the law,26 judges are duty-bound to actually know and understand it. A contrary rule will not only lessen the faith of the people in the courts but will also defeat the fundamental role of the judiciary to render justice and promote the rule of law.

Gross ignorance of the law or procedure is a serious charge under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10-SC,27 punishable by either dismissal from service, suspension or a fine of more than P20,000 but not exceeding P40,000.28 Since this is respondent’s first offense, we deem it proper to impose upon him a fine of P30,000.

Members of the bench are enjoined to behave at all times in a way that promotes public confidence in the integrity and impartiality of the judiciary.29 Respondent’s act of taking cognizance of a case which was plainly not within his court’s jurisdiction failed to meet the high standards of judicial conduct.

Pursuant to A.M. No. 02-9-02-SC,30 this administrative case against respondent as a judge, based on grounds which are also grounds for disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar.31

When respondent entertained SCA No. 12-181, issued a TRO and writ of preliminary injunction and subsequently granted the petition, he acted contrary to law, rules and jurisprudence. In doing so, he consented to the filing of an unlawful suit, in violation of the Lawyer’s Oath. A judge who falls short of the ethics of the judicial office tends to diminish the people’s respect for the law and legal processes.32 He also fails to observe and maintain the esteem due to the courts and to judicial officers.33 Thus, respondent violated Canons 1 and 11 of the Code of Professional Responsibility (CPR):

“Canon 1. A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.

x x x   x x x   x x x

Canon 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. (Emphasis supplied)

Respondent’s gross ignorance of the law also runs counter to Canons 5 and 6 of the CPR:

Canon 5. A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating information regarding the law and jurisprudence.

Canon 6. These Canons shall apply to lawyers in government service in the discharge of their official tasks.” (Emphasis supplied)

Judges should be well-informed of existing laws, recent amendments and current jurisprudence, in keeping with their sworn duty as members of the bar (and bench) to keep abreast of legal developments.

For such violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the CPR, respondent is fined in the amount of P10,000.34

WHEREFORE, Rasad G. Balindong, Presiding Judge of the Regional Trial Court, Malabang, Lanao del Sur, Branch 12 is hereby found GUILTY of gross ignorance of the law. He is FINED P30,000.

Respondent is further hereby FINED P30,000 for his violation of the Lawyer’s Oath and Canons 1, 5, 6 and 11 of the Code of Professional Responsibility.

He is STERNLY WARNED that the commission of the same or similar acts shall be dealt with more severely.

Let this resolution be attached to the personal files of respondent in the Office of the Court Administrator and the Office of the Bar Confidant.

SO ORDERED.

Puno (C.J.), Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Chico-Nazario, Nachura, Leonardo-De Castro, Brion and Peralta, JJ., concur.

Ynares-Santiago and Velasco, Jr., JJ., On Official Leave.

Tinga, J., On Leave.

Judge Rasad G. Balindong meted with P30,000.00 fine for gross ignorance of the law, another P10,000.00 for violation of Lawyer’s Oath and Canons 1, 5, 6 and 11 of Code of Professional Responsibility, with stern warning against commission of similar acts.

Notes.—Years of service in the bench simply negate any notion that a judge could be grossly ignorant of procedural laws. (Gutierrez vs. Hernandez, Sr., 524 SCRA 1 [2007])

A patent disregard of simple, elementary and well-known rules constitutes gross ignorance of the law. (Lagcao vs. Gako, Jr., 529 SCRA 55 [2007]) [Benito vs. Balindong, 580 SCRA 41(2009)]

A.C. No. 7815. July 23, 2009.*

DOLORES C. BELLEZA, complainant, vs. ATTY. ALAN S. MACASA, respondent.

Legal Ethics; Attorneys; The orders of the Commission on Bar Discipline of the Integrated Bar of the Philippines (as the investigating arm of the Supreme Court in administrative cases against lawyers) are not mere requests but directives which should be complied with promptly and completely.—Respondent’s unjustified disregard of the lawful orders of the

CBD was not only irresponsible but also constituted utter disrespect for the judiciary and his fellow lawyers. His conduct was unbecoming of a lawyer who is called upon to obey court orders and processes and is expected to stand foremost in complying with court directives as an officer of the court. Respondent should have known that the orders of the CBD (as the investigating arm of the Court in administrative cases against lawyers) were not mere requests but directives which should have been complied with promptly and completely.

Same; Same; A lawyer owes full devotion to the interest of his client, warm zeal in the maintenance and defense of his client’s rights and the exertion of his utmost learning, skill and ability to ensure that nothing shall be taken or withheld from his client, save by the rules of law legally applied.—A lawyer who accepts the cause of a client commits to devote himself (particularly his time, knowledge, skills and effort) to such cause. He must be ever mindful of the trust and confidence reposed in him, constantly striving to be worthy thereof. Accordingly, he owes full devotion to the interest of his client, warm zeal in the maintenance and defense of his client’s rights and the exertion of his utmost learning, skill and ability to ensure that nothing shall be taken or withheld from his client, save by the rules of law legally applied.

Same; Same; Right to Counsel; The constitutional right to counsel of an accused can only be meaningful if the accused is accorded ample legal assistance by his lawyer.—The accused is guaranteed the right to counsel under the Constitution. However, this right can only be meaningful if the accused is accorded ample legal assistance by his lawyer: ... The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily. The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence.

Same; Same; Same; Bail; A lawyer, in failing to use the amount entrusted to him for posting a bond to secure the provisional liberty of his client, unduly impeded the latter’s constitutional right to bail.—In this case, after accepting the criminal case against complainant’s son and receiving his attorney’s fees, respondent did nothing that could be considered as effective and efficient legal assistance. For all intents and purposes, respondent abandoned the cause of his client. Indeed, on account of respondent’s continued inaction, complainant was compelled to seek the services of the Public Attorney’s Office. Respondent’s lackadaisical attitude towards the case of complainant’s son was reprehensible. Not only did it prejudice complainant’s son, it also deprived him of his constitutional right to counsel. Furthermore, in failing to use the amount entrusted to him for posting a bond to secure the provisional liberty of his client, respondent unduly impeded the latter’s constitutional right to bail.

Same; Same; The fiduciary nature of the relationship between counsel and client imposes on a lawyer the duty to account for the money or property collected or received for or from the client.—The fiduciary nature of the relationship between counsel and client imposes on a lawyer the duty to account for the money or property collected or received for or from the client. When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client. His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the Code of Professional Responsibility.

Same; Same; A lawyer’s failure to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client—it may border on the criminal as it may constitute a prima facie case of swindling or estafa.—A lawyer has the duty to deliver his client’s funds or properties as they fall due or upon demand. His failure to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client. It is a gross violation of general morality as well as of professional ethics; it impairs public confidence in the legal profession and deserves punishment. Indeed, it may border on the criminal as it may constitute a prima facie case of swindling or estafa.

Same; Same; Attorney’s Fees; Unjust Enrichment; Solutio Indebiti; A lawyer who does not render legal services is not entitled to attorney’s fees, otherwise, not only would he be unjustly enriched at the expense of the client, he would also be rewarded for his negligence and irresponsibility.—Respondent rendered no service that would have entitled him to the P30,000 attorney’s fees. As a rule, the right of a lawyer to a reasonable compensation for his services is subject to two requisites: (1) the existence of an attorney-client relationship and (2) the rendition by the lawyer of services to the client. Thus, a lawyer who does not render legal services is not entitled to attorney’s fees. Otherwise, not only would he be unjustly enriched at the expense of the client, he would also be rewarded for his negligence and irresponsibility.

Same; Same; Lawyers should always live up to the ethical standards of the legal profession as embodied in the Code of Professional Responsibility.—A lawyer who fails to abide by the Canons and Rules of the Code of Professional Responsibility disrespects the said Code and everything that it stands for. In so doing, he disregards the ethics and disgraces the dignity of the legal profession. Lawyers should always live up to the ethical standards of the legal profession as embodied in the Code of Professional Responsibility. Public confidence in law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar. Thus, every lawyer should act and comport himself in a manner that would promote public confidence in the integrity of the legal profession.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

R E S O L U T I O N

PER CURIAM:

This treats of the complaint for disbarment filed by complainant Dolores C. Belleza against respondent Atty. Alan S. Macasa for unprofessional and unethical conduct in connection with the handling of a criminal case involving complainant’s son.

On November 10, 2004, complainant went to see respondent on referral of their mutual friend, Joe Chua. Complainant wanted to avail of respondent’s legal services in connection with the case of her son, Francis John Belleza, who was arrested by policemen of Bacolod City earlier that day for alleged violation of Republic Act (RA) 9165.1 Respondent agreed to handle the case for P30,000.

The following day, complainant made a partial payment of P15,000 to respondent thru their mutual friend Chua. On November 17, 2004, she gave him an additional P10,000. She paid the P5,000 balance on November 18, 2004. Both payments were also made thru Chua. On all three occasions, respondent did not issue any receipt.

On November 21, 2004, respondent received P18,000 from complainant for the purpose of posting a bond to secure the provisional liberty of her (complainant’s) son. Again, respondent did not issue any receipt. When complainant went to the court the next day, she found out that respondent did not remit the amount to the court.

Complainant demanded the return of the P18,000 from respondent on several occasions but respondent ignored her. Moreover, respondent failed to act on the case of complainant’s son and complainant was forced to avail of the services of the Public Attorney’s Office for her son’s defense.

Thereafter, complainant filed a verified complaint2 for disbarment against respondent in the Negros Occidental chapter of the Integrated Bar of the Philippines (IBP). Attached to the verified complaint was the affidavit3 of Chua which read:

“I, JOE CHUA, of legal age, Filipino and resident of Purok Sawmill, Brgy. Bata, Bacolod City, after having been sworn to in accordance with law, hereby depose and state:

1. That I am the one who introduce[d] Mrs. Dolores C. Belleza [to] Atty. Alan Macasa when she looked for a lawyer to help her son in the case that the latter is facing sometime [i]n [the] first week of November 2004;

2.  That by reason of my mutual closeness to both of them, I am the one who facilitated the payment of Mrs. DOLORES C. BELLEZA to Atty. Alan Macasa;

3. That as far as I know, I received the following amount from Mrs. Dolores Belleza as payment for Atty. Alan Macasa:

   Date Amount

November 11, 2004 P15,000.00

A week after  10,000.00

November 18, 2004   5,000.00

4. That the above-mentioned amounts which I supposed as Attorney’s Fees were immediately forwarded by me to Atty. [Macasa];

5. That I am executing this affidavit in order to attest to the truth of all the foregoing statements.

x x x   x x x   x x x”4

In a letter dated May 23, 2005,5 the IBP Negros Occidental chapter transmitted the complaint to the IBP’s Commission on Bar Discipline (CBD).6

In an order dated July 13, 2005,7 the CBD required respondent to submit his answer within 15 days from receipt thereof. Respondent, in an urgent motion for extension of time to file an answer dated August 10, 2005,8 simply brushed aside the complaint for being “baseless, groundless and malicious” without, however, offering any explanation. He also prayed that he be given until September 4, 2005 to submit his answer.

Respondent subsequently filed urgent motions9 for second and third extensions of time praying to be given until November 4, 2005 to submit his answer. He never did.

When both parties failed to attend the mandatory conference on April 19, 2006, they were ordered to submit their respective position papers.10

In its report and recommendation dated October 2, 2007,11 the CBD ruled that respondent failed to rebut the charges against him. He never answered the complaint despite several chances to do so.

The CBD found respondent guilty of violation of Rule 1.01 of the Code of Professional Responsibility which provides:

“Rule 1.01—A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct.”

It also found him guilty of violation of Rules 16.01 and 16.02 of the Code of Professional Responsibility:

“Rule 16.01—A lawyer shall account for all money or property collected or received for or from the client.

Rule 16.02—A lawyer shall keep the funds of each client separate and apart from his own and those others kept by him.”

The CBD ruled that respondent lacked good moral character and that he was unfit and unworthy of the privileges conferred by law on him as a member of the bar. The CBD recommended a suspension of six months with a stern warning that repetition of similar acts would merit a more severe sanction. It also recommended that respondent be ordered to return to complainant the P18,000 intended for the provisional liberty of the complainant’s son and the P30,000 attorney’s fees.

The Board of Governors of the IBP adopted and approved the report and recommendation of the CBD with the modification that respondent be ordered to return to complainant only the amount of P30,000 which he received as attorney’s fees.12

We affirm the CBD’s finding of guilt as affirmed by the IBP Board of Governors but we modify the IBP’s recommendation as to the liability of respondent.

Respondent Disrespected

Legal Processes

Respondent was given more than enough opportunity to answer the charges against him. Yet, he showed indifference to the orders of the CBD for him to answer and refute the accusations of professional misconduct against him. In doing so, he failed to observe Rule 12.03 of the Code of Professional Responsibility:

“Rule 12.03—A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.”

Respondent also ignored the CBD’s directive for him to file his position paper. His propensity to flout the orders of the CBD showed his lack of concern and disrespect for the proceedings of the CBD. He disregarded the oath he took when he was accepted to the legal profession “to obey the laws and the legal orders of the duly constituted legal authorities.” He displayed insolence not only to the CBD but also to this Court which is the source of the CBD’s authority.

Respondent’s unjustified disregard of the lawful orders of the CBD was not only irresponsible but also constituted utter disrespect for the judiciary and his fellow lawyers.13 His conduct was unbecoming of a lawyer who is called upon to obey court orders and processes and is expected to stand foremost in complying with court directives as an officer of the court.14 Respondent should have known that the orders of the CBD (as the investigating arm of the Court in administrative cases against lawyers) were not mere requests but directives which should have been complied with promptly and completely.15

Respondent Grossly Neglected

The Cause Of His Client

Respondent undertook to defend the criminal case against complainant’s son. Such undertaking imposed upon him the following duties:

ANON 17—A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

CANON 18—A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

x x x   x x x   x x x

Rule 18.03—A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

x x x   x x x   x x x

CANON 19—A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.

A lawyer who accepts the cause of a client commits to devote himself (particularly his time, knowledge, skills and effort) to such cause. He must be ever mindful of the trust and confidence reposed in him, constantly striving to be worthy thereof. Accordingly, he owes full devotion to the interest of his client, warm zeal in the maintenance and defense of his client’s rights and the exertion of his utmost learning, skill and ability to ensure that nothing shall be taken or withheld from his client, save by the rules of law legally applied.16

A lawyer who accepts professional employment from a client undertakes to serve his client with competence and diligence.17 He must conscientiously perform his duty arising from such relationship. He must bear in mind that by accepting a retainer, he impliedly makes the following representations: that he possesses the requisite degree of learning, skill and ability other lawyers similarly situated possess; that he will exert his best judgment in the prosecution or defense of the litigation entrusted to him; that he will exercise reasonable care and diligence in the use of his skill and in the application of his knowledge to his client’s cause; and that he will take all steps necessary to adequately safeguard his client’s interest.18

A lawyer’s negligence in the discharge of his obligations arising from the relationship of counsel and client may cause delay in the administration of justice and prejudice the rights of a litigant, particularly his client. Thus, from the perspective of the ethics of the legal profession, a lawyer’s lethargy in carrying out his duties to his client is both unprofessional and unethical.19

If his client’s case is already pending in court, a lawyer must actively represent his client by promptly filing the necessary pleading or motion and assiduously attending the scheduled hearings. This is specially significant for a lawyer who represents an accused in a criminal case.

The accused is guaranteed the right to counsel under the Constitution.20 However, this right can only be meaningful if the accused is accorded ample legal assistance by his lawyer:

“... The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.

The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence.21

— ∞ — ○ — ∞ —

[T]he right of an accused to counsel is beyond question a fundamental right. Without counsel, the right to a fair trial itself would be of little consequence, for it is through counsel that the accused secures his other rights. In other words, the right to counsel is the right to effective assistance of counsel.22

The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client.23 Tersely put, it means an effective, efficient and truly decisive legal assistance, not a simply perfunctory representation.24

In this case, after accepting the criminal case against complainant’s son and receiving his attorney’s fees, respondent did nothing that could be considered as effective and efficient legal assistance. For all intents and purposes, respondent abandoned the cause of his client. Indeed, on account of respondent’s continued inaction, complainant was compelled to seek the services of the Public Attorney’s Office. Respondent’s lackadaisical attitude towards the case of complainant’s son was reprehensible. Not only did it prejudice complainant’s son, it also deprived him of his constitutional right to counsel. Furthermore, in failing to use the amount entrusted to him for posting a bond to secure the provisional liberty of his client, respondent unduly impeded the latter’s constitutional right to bail.

Respondent Failed to Return his Client’s Money

The fiduciary nature of the relationship between counsel and client imposes on a lawyer the duty to account for the money or property collected or received for or from the client.25

When a lawyer collects or receives money from his client for a particular purpose (such as for filing fees, registration fees, transportation and office expenses), he should promptly account to the client how the money was spent. If he does not use the money for its intended purpose, he must immediately return it to the client.26 His failure either to render an accounting or to return the money (if the intended purpose of the money does not materialize) constitutes a blatant disregard of Rule 16.01 of the Code of Professional Responsibility.27

Moreover, a lawyer has the duty to deliver his client’s funds or properties as they fall due or upon demand.28 His failure to return the client’s money upon demand gives rise to the presumption that he has misappropriated it for his own use to the prejudice of and in violation of the trust reposed in him by the client.29 It is a gross violation of general morality as well as of professional ethics; it impairs public confidence in the legal profession and deserves punishment.30 Indeed, it may border on the criminal as it may constitute a prima facie case of swindling or estafa.

Respondent never denied receiving P18,000 from complainant for the purpose of posting a bond to secure the provisional liberty of her son. He never used the money for its intended purpose yet also never returned it to the client. Worse, he unjustifiably refused to turn over the amount to complainant despite the latter’s repeated demands.

Moreover, respondent rendered no service that would have entitled him to the P30,000 attorney’s fees. As a rule, the right of a lawyer to a reasonable compensation for his services is subject to two requisites: (1) the existence of an attorney-client relationship and (2) the rendition by the lawyer of services to the client.31 Thus, a lawyer who does not render legal services is not entitled to attorney’s fees. Otherwise, not only would he be unjustly enriched at the expense of the client, he would also be rewarded for his negligence and irresponsibility.

Respondent Failed to Uphold the

Integrity and Dignity of the Legal

Profession

For his failure to comply with the exacting ethical standards of the legal profession, respondent failed to obey Canon 7 of the Code of Professional Responsibility:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who fails to abide by the Canons and Rules of the Code of Professional Responsibility disrespects the said Code and everything that it stands for. In so doing, he disregards the ethics and disgraces the dignity of the legal profession.

Lawyers should always live up to the ethical standards of the legal profession as embodied in the Code of Professional Responsibility. Public confidence in law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar.32 Thus, every lawyer should act and comport himself in a manner that would promote public confidence in the integrity of the legal profession.33

Respondent was undeserving of the trust reposed in him. Instead of using the money for the bond of the complainant’s son, he pocketed it. He failed to observe candor, fairness and loyalty in his dealings with his client.34 He failed to live up to his fiduciary duties. By keeping the money for himself despite his undertaking that he would facilitate the release of complainant’s son, respondent showed lack of moral principles. His transgression showed him to be a swindler, a deceitful person and a shame to the legal profession.

WHEREFORE, respondent Atty. Alan S. Macasa is hereby found GUILTY not only of dishonesty but also of professional misconduct for prejudicing Francis John Belleza’s right to counsel and to bail under Sections 13 and 14(2), Article III of the Constitution, and for violating Canons 1, 7, 17, 18 and 19 and Rules 12.03, 16.01, 16.02, 16.03 and 18.03 of the Code of Professional Responsibility. He is therefore DISBARRED from the practice of law effective immediately.

Respondent is hereby ORDERED to return to complainant Dolores C. Belleza the amounts of P30,000 and P18,000 with interest at 12% per annum from the date of promulgation of this decision until full payment. Respondent is further DIRECTED to submit to the Court proof of payment of the amount within ten days from payment. Failure to do so will subject him to criminal prosecution.

Let copies of this resolution be furnished the Office of the Bar Confidant to be entered into the records of respondent Atty. Alan S. Macasa and the Office of the Court Administrator to be furnished to the courts of the land for their information and guidance.

SO ORDERED. [Belleza vs. Macasa, 593 SCRA 549(2009)]

A.C. No. 7054. December 4, 2009.*

CONRADO QUE, complainant, vs. ATTY. ANASTACIO REVILLA, JR., respondent.

Civil Procedure; Forum Shopping; Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility, as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure; and add to the congestion of the heavily burdened dockets of the courts.—The respondent likewise violated Rule 12.02 and Rule 12.04,

Canon 12 of the Code of Professional Responsibility, as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure; and add to the congestion of the heavily burdened dockets of the courts.

Legal Ethics; Attorneys; Duty of a Lawyer as an Officer of the Court; The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice, and that he is expected to act candidly, fairly and truthfully in his work. His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be.—The respondent violated his duty as an attorney and his oath as a lawyer “never to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice, and that he is expected to act candidly, fairly and truthfully in his work. His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be. In case of conflict, his duties to his client yield to his duty to deal candidly with the court.

Same; Same; Canon 19 obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The recital of what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits.—This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The recital of what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits.

Same; Same; Administrative Law; Penalties; A lawyer may not represent a litigant without authority from the latter or from the latter’s representative or, in the absence thereof, without leave of court. The willful unauthorized appearence by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.—The respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latter’s representative or, in the absence thereof, without leave of court. The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.

ADMINISTRATIVE CASE in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

Cesar P. Uy and Mary Joy D. Libiran for complainant.

PER CURIAM:

In a complaint for disbarment,1 Conrado Que (complainant) accused Atty. Anastacio Revilla, Jr. (respondent) before the Integrated Bar of the Philippines Committee on Bar Discipline (IBP Committee on Bar Discipline or CBD) of committing the following violations of the provisions of the Code of Professional Responsibility and Rule 138 of the Rules of Court:

(1) The respondent’s abuse of court remedies and processes by filing a petition for certiorari before the Court of Appeals (CA), two petitions for annulment of title before the Regional Trial Court (RTC), a petition for annulment of judgment before the RTC and lastly, a petition for declaratory relief before the RTC (collectively, subject cases) to assail and overturn the final judgments of the Metropolitan Trial Court2 (MeTC) and RTC3 in the unlawful detainer case rendered against the respondent’s clients. The respondent in this

regard, repeatedly raised the issue of lack of jurisdiction by the MeTC and RTC knowing fully-well that these courts have jurisdiction over the unlawful detainer case. The respondent also repeatedly attacked the complainant’s and his siblings’ titles over the property subject of the unlawful detainer case;

(2) The respondent’s commission of forum-shopping by filing the subject cases in order to impede, obstruct, and frustrate the efficient administration of justice for his own personal gain and to defeat the right of the complainant and his siblings to execute the MeTC and RTC judgments in the unlawful detainer case;

(3) The respondent’s lack of candor and respect towards his adversary and the courts by resorting to falsehood and deception to misguide, obstruct and impede the due administration of justice. The respondent asserted falsehood in the motion for reconsideration of the dismissal of the petition for annulment of judgment by fabricating an imaginary order issued by the presiding judge in open court which allegedly denied the motion to dismiss filed by the respondents in the said case. The complainant alleged that the respondent did this to cover up his lack of preparation; the respondent also deceived his clients (who were all squatters) in supporting the above falsehood.4

(4) The respondent’s willful and revolting falsehood that unjustly maligned and defamed the good name and reputation of the late Atty. Alfredo Catolico (Atty. Catolico), the previous counsel of the respondent’s clients.

(5) The respondent’s deliberate, fraudulent and unauthorized appearances in court in the petition for annulment of judgment for 15 litigants, three of whom are already deceased;

(6) The respondent’s willful and fraudulent appearance in the second petition for annulment of title as counsel for the Republic of the Philippines without being authorized to do so.

Additionally, the complaint accused the respondent of representing fifty-two (52) litigants in Civil Case No. Q-03-48762 when no such authority was ever given to him.

The CBD required the respondent to answer the complaint.

In his Answer,5 the respondent declared that he is a member of the Kalayaan Development Cooperative (KDC) that handles pro bono cases for the underprivileged, the less fortunate, the homeless and those in the marginalized sector in Metro Manila. He agreed to take over the cases formerly handled by other KDC members. One of these cases was the unlawful detainer case handled by the late Atty. Catolico where the complainant and his siblings were the plaintiffs and the respondent’s present clients were the defendants.

With respect to paragraph 1 of the disbarment complaint, the respondent professed his sincerity, honesty and good faith in filing the petitions complained of; he filed these petitions to protect the interests of his clients in their property. The respondent asserted that these petitions were all based on valid grounds—the lack of jurisdiction of the MeTC and the RTC over the underlying unlawful detainer case, the extrinsic fraud committed by the late Atty. Catolico, and the extrinsic fraud committed by the complainant and his family against his clients; he discovered that the allegedly detained property did not really belong to the complainant and his family but is a forest land. The respondent also asserted that his resort to a petition for annulment of judgment and a petition for declaratory relief to contest the final judgments of the MeTC and RTC were all parts of his legal strategy to protect the interests of his clients.

On the allegations of falsehood in the motion for reconsideration of the order of dismissal of the petition for annulment of judgment (covered by paragraph 3 of the disbarment complaint), the respondent maintained that his allegations were based on his observations and the notes he had taken during the proceedings on what the presiding judge dictated in open court.

The respondent denied that he had made any unauthorized appearance in court (with respect to paragraphs 5 and 6 of the disbarment complaint). He claimed that the 52 litigants in Civil Case No. Q-03-48762 were impleaded by inadvertence; he immediately rectified his error by dropping them from the case. On the petition for annulment of judgment, the respondent claimed that a majority (31 out of 49) of the litigants who signed the certification constituted sufficient compliance with the rules on forum-shopping. The respondent

likewise denied having represented the Republic of the Philippines in the second petition for annulment of title. The respondent pointed out that there was no allegation whatsoever that he was the sole representative of both the complainants (his clients) and the Republic of the Philippines. The respondent pointed out that the petition embodied a request to the Office of the Solicitor General to represent his clients in the case.6

The respondent submitted that he did not commit any illegal, unlawful, unjust, wrongful or immoral acts towards the complainant and his siblings. He stressed that he acted in good faith in his dealings with them and his conduct was consistent with his sworn duty as a lawyer to uphold justice and the law and to defend the interests of his clients. The respondent additionally claimed that the disbarment case was filed because the complainant’s counsel, Atty. Cesar P. Uy (Atty. Uy), had an axe to grind against him.

Lastly, the respondent posited in his pleadings7 before the IBP that the present complaint violated the rule on forum shopping considering that the subject cases were also the ones on which a complaint was filed against him in CBD Case No. 03-1099 filed by Atty. Uy before the IBP Committee on Bar Discipline. The respondent also posited that the present complaint was filed to harass, ridicule and defame his good name and reputation and, indirectly, to harass his clients who are marginalized members of the KDC.

The Findings of the Investigating Commissioner

Except for the last charge of unauthorized appearance on behalf of 52 litigants in Civil Case No. Q-03-48762, Investigating Commissioner Renato G. Cunanan8 (Investigating Commissioner Cunanan) found all the charges against the respondent meritorious. In his Report and Recommendation, he stated:

“While an attorney admittedly has the solemn duty to defend and protect the cause and rights of his client with all the fervor and energy within his command, yet, it is equally true that it is the primary duty of the lawyer to defend the dignity, authority and majesty of the law and the courts which enforce it. A lawyer is not at liberty to maintain and defend the cause of his clients thru means, inconsistent with truth and honor. He may not and must not encourage multiplicity of suits or brazenly engage in forum-shopping.”9

On the first charge on abuse of court processes, Investigating Commissioner Cunanan noted the unnecessary use by the respondent of legal remedies to forestall the execution of the final decisions of the MTC and the RTC in the unlawful detainer case against his clients.10

On the second charge, the Investigating Commissioner ruled that the act of the respondent in filing two petitions for annulment of title, a petition for annulment of judgment and later on a petition for declaratory relief were all done to prevent the execution of the final judgment in the unlawful detainer case and constituted prohibited forum-shopping.11

On the third and fourth charges, Investigating Commissioner Cunanan found ample evidence showing that the respondent was dishonest in dealing with the court as shown in his petition for annulment of judgment; he resorted to falsities and attributed acts to Atty. Catolico and to the presiding judge, all of which were untrue.12

On the fifth and sixth charges, the Investigating Commissioner disregarded the respondent’s explanation that he had no intention to represent without authority 15 of the litigants (three of whom were already deceased) in the petition for annulment of judgment (Civil Case No. Q-01-45556). To the Investigating Commissioner, the respondent merely glossed over the representation issue by claiming that the authority given by a majority of the litigants complied with the certification of non-forum shopping requirement. The Investigating Commissioner likewise brushed aside the respondent’s argument regarding his misrepresentation in the second complaint for annulment of title since he knew very well that only the Solicitor General can institute an action for reversion on behalf of the Republic of the Philippines. Despite this knowledge, the respondent solely signed the amended complaint for and on behalf of his clients and of the Republic.

The Board of Governors of the IBP Committee on Bar Discipline, through its Resolution No. XVII-2005-164 on CBD Case No. 03-1100, adopted and approved the Report and Recommendation of Investigating Commissioner Cunanan and recommended that the respondent be suspended from the practice of law for two (2) years.13 On reconsideration, the Board of Governors reduced the respondent’s suspension from the practice of law to one (1) year.14

The Issue

The case poses to us the core issues of whether the respondent can be held liable for the imputed unethical infractions and professional misconduct, and the penalty these transgressions should carry.

The Court’s Ruling

Except for the penalty, we agree with the Report and Recommendation of Investigating Commissioner Cunanan and the Board of Governors of the IBP Committee on Bar Discipline.

We take judicial notice that this disbarment complaint is not the only one so far filed involving the respondent; another complaint invoking similar grounds has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v. Atty. Anastacio E. Revilla, Jr.,15 we suspended the respondent from the practice of law for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We initially imposed a suspension of two (2) years, but in an act of leniency subsequently reduced the suspension to six (6) months.16

Abuse of court procedures and processes

The following undisputed facts fully support the conclusion that the respondent is guilty of serious misconduct for abusing court procedures and processes to shield his clients from the execution of the final judgments of the MeTC and RTC in the unlawful detainer case against these clients:

First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP No. 53892) with prayer for the issuance of preliminary injunction and temporary restraining order to question the final judgments of the MeTC and RTC for lack of jurisdiction. In dismissing the respondent’s petition, the CA held:

“Even for the sake of argument considering that the petition case be the proper remedy, still it must be rejected for failure of petitioners to satisfactorily demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of Quezon City over the ejectment case.”17

Second, notwithstanding the CA’s dismissal of the petition for certiorari, the respondent again questioned the MeTC’s and the RTC’s lack of jurisdiction over the unlawful detainer case in a petition for annulment of judgment (docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary prayer for the grant of a temporary restraining order and preliminary injunction. The RTC dismissed this petition on the basis of the motion to dismiss filed.18

Third, the respondent successively filed two petitions (docketed as Civil Case No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of the complainant’s title to the property involved in the unlawful detainer case. The records show that these petitions were both dismissed “for lack of legal personality on the part of the plaintiffs” to file the petition.19

Fourth, after the dismissals of the petition for annulment of judgment and the petitions for annulment of title, the respondent this time filed a petition for declaratory relief with prayer for a writ of preliminary injunction to enjoin the complainant and his siblings from exercising their rights over the same property subject of the unlawful detainer case. The respondent based the petition on the alleged nullity of the complainant’s title because the property is a part of forest land.

Fifth, the persistent applications by the respondent for injunctive relief in the four petitions he had filed in several courts—the petition for certiorari, the petition for annulment of judgment, the second petition for annulment of complainant’s title and the petition for declaratory relief—reveal the respondent’s persistence in preventing and avoiding the execution of the final decisions of the MeTC and RTC against his clients in the unlawful detainer case.

Under the circumstances, the respondent’s repeated attempts go beyond the legitimate means allowed by professional ethical rules in defending the interests of his client. These are already uncalled for measures to avoid the enforcement of final judgments of the MeTC and RTC. In these attempts, the respondent violated Rule 10.03, Canon 10 of the Code

of Professional Responsibility which makes it obligatory for a lawyer to “observe the rules of procedure and. . . not [to] misuse them to defeat the ends of justice.” By his actions, the respondent used procedural rules to thwart and obstruct the speedy and efficient administration of justice, resulting in prejudice to the winning parties in that case.20

Filing of multiple actions and forum shopping

The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility,21 as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure;22 and add to the congestion of the heavily burdened dockets of the courts.23

While the filing of a petition for certiorari to question the lower courts’ jurisdiction may be a procedurally legitimate (but substantively erroneous) move, the respondent’s subsequent petitions involving the same property and the same parties not only demonstrate his attempts to secure favorable ruling using different fora, but his obvious objective as well of preventing the execution of the MeTC and RTC decisions in the unlawful detainer case against his clients. This intent is most obvious with respect to the petitions for annulment of judgment and declaratory relief, both geared towards preventing the execution of the unlawful detainer decision, long after this decision had become final.

Willful, intentional and deliberate

falsehood before the courts

The records also reveal that the respondent committed willful, intentional and deliberate falsehood in the pleadings he filed with the lower courts.

First, in the petition for annulment of judgment filed before the RTC, Branch 101, Quezon City, the respondent cited extrinsic fraud as one of the grounds for the annulment sought. The extrinsic fraud was alleged in the last paragraph of the petition, as follows:

“In here, counsel for the petitioners (defendants therein), deliberately neglected to file the proper remedy then available after receipt of the denial of their Motion for Reconsideration … thus corruptly sold out the interest of the petitioners (defendants therein) by keeping them away to the Court and in complete ignorance of the suit by a false pretense of compromise and fraudulent acts of alleging representing them when in truth and in fact, have connived with the attorney of the prevailing party at his defeat to the prejudice of the petitioner (defendants therein) …”24

Yet, in paragraph 35 of the same petition, the respondent alleged that no second motion for reconsideration or for new trial, or no other petition with the CA had been filed, as he believed “that the decisions rendered both by the MeTC and the RTC are null and void.”25 These conflicting claims, no doubt, involve a fabrication made for the purpose of supporting the petition for annulment. Worse, it involved a direct and unsubstantiated attack on the reputation of a law office colleague, another violation we shall separately discuss below.

Second, the respondent employed another obvious subterfuge when he filed his second petition for annulment of title, which was an unsuccessful attempt to circumvent the rule that only the Solicitor General may commence reversion proceedings of public lands26 on behalf of the Republic of the Philippines. This second petition, filed by a private party and not by the Republic, showed that: (a) the respondent and his clients requested that they be represented by the Solicitor General in the proceedings; (b) the Republic of the Philippines was simply impleaded in the amended petition without its consent as a plaintiff; and (c) the respondent signed the amended petition where he alone stood as counsel for the “plaintiffs.” In this underhanded manner, the respondent sought to compel the Republic to litigate and waste its resources on an unauthorized and unwanted suit.

Third, the respondent also committed falsehood in his motion for reconsideration of the order dismissing his petition for annulment of judgment where he misrepresented to the court and his clients what actually transpired in the hearing of June 28, 2002 in this wise:

Likewise, the proceedings on said date of hearing (June 28, 2002) show, that after both counsel have argued on the aforesaid pending incident, the Honorable Presiding Judge, in open court, and in the presence and within the hearing distance of all the plaintiffs and their counsel as well as the counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE REMAINING PERIOD.”27 [Underscoring and emphasis theirs]

The records, however, disclose that the scheduled hearing for June 28, 2002 was actually for the respondent’s application for temporary restraining order and was not a hearing on the adverse party’s motion to dismiss.28 The records also show that RTC-Branch 101 held in abeyance the respondent’s application for injunctive relief pending the resolution of the motion to dismiss filed by the adverse party.29 As stated in the order of the Presiding Judge of RTC-Branch 101:

“Browsing over the records of this case specifically the transcripts of stenographic notes as transcribed by the Stenographer, the same will indicate that the allegations in the Motion for Reconsideration are not true.

… how can this Court make a ruling on the matter even without stating the factual and legal bases as required/mandated by the Rules. Moreover, there are no indications or iota of irregularity in the preparation by Stenographer of the transcripts, and by the Court interpreter of the Minutes of the open Court session.” [Underscoring theirs]

The records further disclose that despite knowledge of the falsity of his allegations, the respondent took advantage of his position and the trust reposed in him by his clients (who are all squatters) to convince them to support, through their affidavits, his false claims on what allegedly transpired in the June 28, 2002 hearing. 30

For these acts, we find the respondent liable under Rule 10.01 of Canon 10 the Code of Professional Responsibility for violating the lawyer’s duty to observe candor and fairness in his dealings with the court. This provision states:

CANON 10—A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT

Rule 10.01—A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be mislead by an artifice.

Likewise, the respondent violated his duty as an attorney and his oath as a lawyer “never to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”31 The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice,32 and that he is expected to act candidly, fairly and truthfully in his work.33 His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be.34 In case of conflict, his duties to his client yield to his duty to deal candidly with the court.35

In defending his clients’ interest, the respondent also failed to observe Rule 19.01, Canon 19 of the Code of Professional Responsibility, which reads:

CANON 19—A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF LAW

Rule 19.01—A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients x x x

This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor.36 He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions.37 The recital of what the respondent did to prevent the execution of the judgment against his clients hows that he actually committed what the above rule expressly prohibits.

Maligning the name of his fellow lawyers

To support the charge of extrinsic fraud in his petition for annulment of judgment, the respondent attacked (as quoted above) the name and reputation of the late Atty. Catolico and accused him of deliberate neglect, corrupt motives and connivance with the counsel for the adverse party.

We find it significant that the respondent failed to demonstrate how he came upon his accusation against Atty. Catolico. The respondent, by his own admission, only participated in the cases previously assigned to Atty. Catolico after the latter died. At the same time, the respondent’s petition for annulment of judgment also represented that no second motion for reconsideration or appeal was filed to contest the MeTC and RTC decisions in the unlawful detainer case for the reason that the respondent believed the said decisions were null and void ab initio.

Under these circumstances, we believe that the respondent has been less than fair in his professional relationship with Atty. Catolico and is thus liable for violating Canon 8 of the Code of Professional Responsibility, which obligates a lawyer to “conduct himself with courtesy, fairness, and candor toward his professional colleagues.” He was unfair because he imputed wrongdoing to Atty. Catolico without showing any factual basis therefor; he effectively maligned Atty. Catolico, who is now dead and unable to defend himself.

Unauthorized appearances

We support Investigating Commissioner Cunanan’s finding that the respondent twice represented parties without proper authorization: first, in the petition for annulment of judgment; and second, in the second petition for annulment of title.38

In the first instance, the records show that the respondent filed the petition for annulment of judgment on behalf of 49 individuals, 31 of whom gave their consent while the other 15 individuals did not. We cannot agree with the respondent’s off-hand explanation that he truly believed that a majority of the litigants who signed the certification of non-forum shopping in the petition already gave him the necessary authority to sign for the others. We find it highly improbable that this kind of lapse could have been committed by a seasoned lawyer like the respondent, who has been engaged in the practice of law for more than 30 years and who received rigid and strict training as he so proudly declares, from the University of the Philippines College of Law and in the two law firms with which he was previously associated.39 As Investigating Commissioner Cunanan found, the respondent’s explanation of compliance with the rule on the certification of non-forum shopping glossed over the real charge of appearing in court without the proper authorization of the parties he allegedly represented.

In the second instance, which occurred in the second complaint for annulment of title, the respondent knew that only the Solicitor General can legally represent the Republic of the Philippines in actions for reversion of land. Nevertheless, he filed an amended petition where he impleaded the Republic of the Philippines as plaintiff without its authority and consent, as a surreptitious way of forcing the Republic to litigate. Notably, he signed the amended complaint on behalf of all the plaintiffs—his clients and the Republic.

In both instances, the respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latter’s representative or, in the absence thereof, without leave of court.40 The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.41

The Respondent’s Defenses

We find no merit in the respondent’s defenses.

“Good faith connotes an honest intention to abstain from taking unconscientious advantage of another. Accordingly, in University of the East v. Jader we said that “[g]ood faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of law, together with the absence of all information or belief of facts, would render the transaction unconscientious.”42 Bad faith, on the other hand, is a state of mind affirmatively operating with furtive design or with some motive of self-interest, ill will or for an ulterior purpose.43 As both concepts are states of mind, they may be deduced from the attendant circumstances and, more particularly, from the acts and statements of the person whose state of mind is the subject of inquiry.

In this case, we find that the respondent acted in bad faith in defending the interests of his clients. We draw this conclusion from the misrepresentations and the dubious recourses he made, all obviously geared towards forestalling the execution of the final judgments of the MeTC and RTC. That he took advantage of his legal knowledge and experience and misread the Rules immeasurably strengthen the presence of bad faith.

We find neither sincerity nor honest belief on the part of the respondent in pleading the soundness and merit of the cases that he filed in court to prevent the execution of the MeTC and RTC decisions, considering his own conduct of presenting conflicting theories in his petitions. The succession of cases he filed shows a desperation that negates the sincere and honest belief he claims; these are simply scattershot means to achieve his objective of avoiding the execution of the unlawful detainer judgment against his clients.

On the respondent’s allegations regarding his discretion to determine legal strategy, it is not amiss to note that this was the same defense he raised in the first disbarment case.44 As we explained in Plus Builders, the exercise of a lawyer’s discretion in acting for his client can never be at the expense of truth and justice. In the words of this cited case:

“While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his client’s case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he ‘will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same’; and that he ‘will conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.’ Needless to state, the lawyer’s fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyer’s responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.”45

We cannot give credence to the respondent’s claim that the disbarment case was filed because the counsel of the complainant, Atty. Uy, had an axe to grind against him. We reject this argument, considering that it was not Atty. Uy who filed the present disbarment case against him; Atty. Uy is only the counsel in this case. In fact, Atty. Uy has filed his own separate disbarment case against the respondent.

The sui generis nature of a disbarment case renders the underlying motives of the complainants unimportant and with very little relevance. The purpose of a disbarment proceeding is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and a participant in the dispensation of justice—an issue where the complainant’s personal motives have little relevance. For this reason, disbarment proceedings may be initiated by the Court motu proprio upon information of an alleged wrongdoing. As we also explained in the case In re: Almacen:

“. . .disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not—and does not involve—a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.

x x x

It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their

misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.”46

Hence, we give little or no weight to the alleged personal motivation that drove the complainant Que and his counsel to file the present disbarment case.

Conclusion

Based on the foregoing, we conclude that the respondent committed various acts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed on members of the Bar. We cannot agree, however, that only a penalty of one-year suspension from the practice of law should be imposed. Neither should we limit ourselves to the originally recommended penalty of suspension for two (2) years.

Given the respondent’s multiple violations, his past record as previously discussed, and the nature of these violations which shows the readiness to disregard court rules and to gloss over concerns for the orderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbar the respondent to keep him away from the law profession and from any significant role in the administration of justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves. Not even his ardor and overzealousness in defending the interests of his client can save him. Such traits at the expense of everything else, particularly the integrity of the profession and the orderly administration of justice, this Court cannot accept nor tolerate.

Additionally, disbarment is merited because this is not the respondent’s first ethical infraction of the same nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E. Revilla for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. We cannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his past experience and since then has exhibited traits of incorrigibility. It is time to put a finis to the respondent’s professional legal career for the sake of the public, the profession and the interest of justice.

WHEREFORE, premises considered, we hereby AFFIRM Resolution No. XVII-2005-164 dated December 17, 2005 and Resolution No. XVII-2008-657 dated December 11, 2008 of the Board of Governors of the IBP Committee on Bar Discipline insofar as respondent Atty. Anastacio Revilla, Jr. is found liable for professional misconduct for violations of the Lawyer’s Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules of Court. However, we modify the penalty the IBP imposed, and hold that the respondent should be DISBARRED from the practice of law. [Que vs. Revilla, Jr., 607 SCRA 1(2009)]

A.C. No. 6155. March 14, 2006.*

MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M. JOAQUIN, complainants, vs. ATTY. JAIME JUANITO P. PORTUGAL, respondent.

Administrative Law; Attorneys; In a criminal case, the lawyer for the accused has a higher duty to be circumspect in defending the accused.—In a criminal case like that handled by respondent in behalf of the accused, respondent has a higher duty to be circumspect in defending the accused for it is not only the property of the accused which stands to be lost but more importantly, their right to their life and liberty.

Same; Same; It is the counsel, not his client, who has the duty to file the Notice of Withdrawal.—Respondent ought to know that he was the one who should have filed the Notice to Withdraw and not the accused. His tale that he sent a registered letter to the accused and gave them instructions on how to go about respondent’s withdrawal from the case defies credulity. It should have been respondent who undertook the appropriate measures for the proper withdrawal of his representation. He should not have relied on his client to do it for him if such was truly the case. Without the presentation of the alleged registry receipt (or the return card, which confirms the receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot lend credence to respondent’s naked claim, especially so that complainants have been resolute in their stand that they did not hear from respondent after the latter had filed the ad cautelam petition. He could relieve himself of his responsibility as counsel only first by securing the written conformity of the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules of Court.

Same; Same; A client has the absolute right to terminate the attorney-client relation at anytime with or without cause.—The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final adjudication arises only from the client’s written consent or from a good cause.

Same; Same; The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration.—Even if respondent felt under-compensated in the case he undertook to defend, his obligation embodied in the Lawyer’s Oath and the Code of Professional Responsibility still remains unwavering. The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration.

Same; Same; Rule 14.01 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter.—The Court does not appreciate the offensive appellation respondent called the shooting incident that the accused was engaged in. He described the incident, thus: “the accused police officers who had been convicted of [h]omicide for the ‘salvage’ of Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato.” Rule 14.01 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic that it is the defense counsel that actually branded his own clients as being the culprits that “salvaged” the victims. Though he might think of his clients as that, still it is unprofessional to be labeling an event as such when even the Sandiganbayan had not done so.

ADMINISTRATIVE CASE in the Supreme Court. Violation of Lawyer’s Oath, Gross Misconduct and Gross Negligence.

The facts are stated in the opinion of the Court.

Antoniutti K. Palaña for respondent.

TINGA, J.:

Complainants filed before this Court an affidavit-complaint1 on 15 August 2003 against Atty. Jaime Juanito P. Portugal (respondent) for violation of the Lawyer’s Oath, gross misconduct, and gross negligence. Complainants are related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of the Philippines, in whose behalf respondent filed the Petition for Review on Certiorari (Ad Cau-telam) in the case.

The complaint against respondent originated from his alleged mishandling of the above-mentioned petition which eventually led to its denial with finality by this Court to the prejudice of petitioners therein.

The facts are as follows:

On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3 Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively referred to herein as the accused) were involved in a shooting incident which resulted in the death of two individuals and the serious injury of another. As a result, Informations were filed against them before the Sandiganbayan for murder and frustrated murder. The accused pleaded not guilty and trial ensued. After due trial, the Sandiganbayan2 found the accused guilty of two counts of homicide and one count of attempted homicide.

At that juncture, complainants engaged the services of herein respondent for the accused. Respondent then filed a Motion for Reconsideration with the Sandiganbayan but it was denied in a Resolution dated 21 August 2001. Unfazed by the denial, respondent filed an Urgent Motion for Leave to File Second Motion for Reconsideration, with the attached Second Motion for Reconsideration.3 Pending resolution by the Sandiganbayan, respondent also filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on 3 May 2002.

Thereafter, complainants never heard from respondent again despite the frequent telephone calls they made to his office. When respondent did not return their phone inquiries, complainants went to respondent’s last known address only to find out that he had moved out without any forwarding address.

More than a year after the petition was filed, complainants were constrained to personally verify the status of the ad cautelam petition as they had neither news from respondent about the case nor knowledge of his whereabouts. They were shocked to discover that the Court had already issued a Resolution4 dated 3 July 2002, denying the petition for late filing and non-payment of docket fees.

Complainants also learned that the said Resolution had attained finality and warrants of arrest5 had already been issued against the accused because respondent, whose whereabouts remained unknown, did nothing to prevent the reglementary period for seeking reconsideration from lapsing.

In his Comment,6 respondent states that it is of vital significance that the Court notes that he was not the original counsel of the accused. He only met the accused during the promulgation of the Sandiganbayan decision convicting the accused of two counts of homicide and one count of attempted homicide. He was merely requested by the original counsel to be on hand, assist the accused, and be present at the promulgation of the Sandiganbayan decision.

Respondent claims that there was no formal engagement undertaken by the parties. But only because of his sincere effort and in true spirit of the Lawyer’s Oath did he file the Motion for Reconsideration. Though admitting its highly irregular character, respondent also made informal but urgent and personal representation with the members of the Division of the Sandiganbayan who promulgated the decision of conviction. He asserts that because of all the efforts he put into the case of the accused, his other professional obligations were neglected and that all these were done without proper and adequate remuneration.

As to the ad cautelam petition, respondent maintains that it was filed on time. He stresses that the last day of filing of the petition was on 3 April 2002 and on that very day, he filed with this Court a Motion for Extension of Time to File Petition for Review,7 seeking an additional thirty (30) days to file the petition. Subsequently, on 3 May 2002, he filed the petition by registered mail and paid the corresponding docket fees. Hence, so he concludes, it was filed within the reglementary period.

Soon thereafter, respondent recounted all the “herculean” efforts he made in assisting the accused for almost a year after the promulgation of the Sandiganbayan decision. He considered the fact that it was a case he had just inherited from the original counsel; the effect of his handling the case on his other equally important professional obligations; the lack of adequate financial consideration for handling the case; and his plans to travel to the United States to explore further professional opportunities. He then decided to formally withdraw as counsel for the accused. He wrote a letter to PO3 Rolando Joaquin (PO3 Joaquin), who served as the contact person between respondent and complainants, explaining his decision to withdraw as their counsel, and attaching the Notice to Withdraw which respondent instructed the accused to sign and file with the Court. He sent the letter through registered mail but unfortunately, he could not locate the registry receipt issued for the letter.

Respondent states that he has asked the accused that he be discharged from the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was keenly aware that it would be difficult to find a new counsel who would be as equally accommodating as respondent. Respondent suggests this might have been the reason for the several calls complainants made to his office.

On 9 February 2004, the Court resolved to refer the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr. (Commissioner Villadolid) who sent notices of hearing to the parties but of the three complainants, only complainant Carlos Joaquin appeared. Thus, in the mandatory conference held, the other two complainants were declared as having waived their rights to further participate in the IBP proceedings.8

The parties were directed to file their respective position papers and on 27 May 2005, Commissioner Villadolid submitted his Report and Recommendation finding respondent guilty of violation of the Code of Professional Responsibility9 and recommended the imposition of penalty ranging from reprimand to suspension of six (6) months.10 On 12 November 2005, the Board of Directors of the IBP resolved to adopt and approve Commissioner Villadolid’s recommendation to find respondent guilty and specifically to recommend his suspension for six (6) months as penalty.

The only issue to be resolved in the case at bar is, considering all the facts presented, whether respondent committed gross negligence or misconduct in handling G.R. No. 152621-23, which eventually led to the ad cautelam petition’s dismissal with finality.

After careful consideration of the records of the case, the Court finds the suspension recommended by the IBP proper. In a criminal case like that handled by respondent in behalf of the accused, respondent has a higher duty to be circumspect in defending the accused for it is not only the property of the accused which stands to be lost but more importantly, their right to their life and liberty. As held in Regala v. Sandiganbayan:11

“Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, that is required by reason of necessity and public interest x x x .

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other profession in society. x x x”12

At the onset, the Court takes notice that the ad cautelam petition was actually filed out of time. Though respondent filed with the Sandiganbayan an Urgent Motion for Leave to File Second Motion for Reconsideration with the attached Second Motion for Reconsideration, he should have known that a second motion for reconsideration is a prohibited pleading13 and it rests on the sound discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion did not toll the reglementary period to appeal. Having failed to do so, the accused had already lost their right to appeal long before respondent filed his motion for extension. Therefore, respondent cannot now say he filed the ad cautelam petition on time. Also important to note is the allegation of complainants that the Sandiganbayan denied the second motion for reconsideration in its Resolution dated 7 February 2002. This respondent does not dispute.

As to respondent’s conduct in dealing with the accused and complainants, he definitely fell short of the high standard of assiduousness that a counsel must perform to safeguard the rights of his clients. As aptly observed by Commissioner Villadolid, respondent had not been quite candid in his dealings with the accused or complainants. The Court notes that though respondent represented to the accused that he had changed his office address, still, from the examination of the pleadings14 he filed, it can be gleaned that all of the pleadings have the same mailing address as that known to complainants. Presumably, at some point, respondent’s office would have received the Court’s Resolution dismissing the petition. Of course, the prudent step to take in that situation was to at least inform the client of the adverse resolution since they had constantly called respondent’s office to check the status of the case. Even when he knew that complainants had been calling his office, he opted not to return their calls.

Respondent professed an inkling that the several phone calls of complainants may have been about the letter he sent PO3 Joaquin regarding his desire to be discharged as counsel of the case. However, though aware of such likelihood, respondent still did not return their calls. Had he done so, he and complainants could have threshed out all unresolved matters between them.

Had respondent truly intended to withdraw his appearance for the accused, he as a lawyer who is presumably steeped in court procedures and practices, should have filed the notice of withdrawal himself instead of the accused. At the very least, he should have informed this Court through the appropriate manifestation that he had already given instructions to his clients on the proper way to go about the filing of the Notice of Withdrawal, as suggested by Commissioner Villadolid. In not so doing, he was negligent in handling the case of the accused.

Certainly, respondent ought to know that he was the one who should have filed the Notice to Withdraw and not the accused. His tale that he sent a registered letter to the accused and gave them instructions on how to go about respondent’s withdrawal from the case defies credulity. It should have been respondent who undertook the appropriate measures for the proper withdrawal of his representation. He should not have relied on his client to do it for him if such was truly the case. Without the presentation of the alleged registry receipt (or the return card, which confirms the receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot lend credence to respondent’s naked claim, especially so that complainants have been resolute in their stand that they did not hear from respondent after the latter had filed the ad cautelam petition. He could relieve himself of his responsibility as counsel only first by securing the written conformity of the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules of Court.15

The rule in this jurisdiction is that a client has the absolute right to terminate the attorney-client relation at anytime with or without cause. The right of an attorney to withdraw or terminate the relation other than for sufficient cause is, however, considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who undertakes to conduct an action impliedly stipulates to carry it to its conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final adjudication arises only from the client’s written consent or from a good cause.16

We agree with Commissioner Villadolid that the dismissal of the ad cautelam petition was primarily due to the gross negligence of respondent. The Court has stressed in Aromin v. Boncavil17 that:

“Once he agrees to take up the cause of the 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 the 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.”18

Respondent has time and again stated that he did all the endeavors he enumerated without adequate or proper remuneration. However, complainants have sufficiently disputed such claim when they attached in their position paper filed before the IBP a machine validated deposit slip in the amount of P15,500.00 for the Metro Bank savings account of one Jaime Portugal with account number 7186509273.19 Respondent has neither admitted nor denied having claimed the deposited amount.

The Court also rejects respondent’s claim that there was no formal engagement between the parties and that he made all his efforts for the case without adequate and proper consideration. In the words of then Justice Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta:20

“After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a profession in which duty of public service, not money, is the primary consideration.”21

Also to the point is another case where this Court ruled, thus:

“A written contract is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. x x x”22

Hence, even if respondent felt under-compensated in the case he undertook to defend, his obligation embodied in the Lawyer’s Oath and the Code of Professional Responsibility still remains unwavering. The zeal and the degree of fervor in handling the case should neither diminish nor cease just because of his perceived insufficiency of remuneration.

Lastly, the Court does not appreciate the offensive appellation respondent called the shooting incident that the accused was engaged in. He described the incident, thus: “the accused police officers who had been convicted of [h]omicide for the ‘salvage’ of Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C. Macato.”23 Rule 14.0124 of the Code of Professional Responsibility clearly directs lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic that it is the defense counsel that actually branded his own clients as being the culprits that “salvaged” the victims. Though he might think of his clients as that, still it is unprofessional to be labeling an event as such when even the Sandiganbayan had not done so.

The IBP Board of Governors recommended the suspension of respondent for six (6) months, the most severe penalty recommended by Commissioner Villadolid, but did not explain why such penalty was justified. In a fairly recent case where the lawyer failed to file an appeal brief which resulted to the dismissal of the appeal of his client in the Court of Appeals, the Court imposed upon the erring lawyer the penalty of three (3) months’ suspension.25 The Court finds it fit to impose the same in the case at bar.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for three (3) months. Let a copy of the Resolution be furnished the Bar Confidant for appropriate annotation in the record of respondent.

SO ORDERED.

Quisumbing (Chairperson), Carpio and Carpio-Morales, JJ., concur.

Respondent suspended from practice of law for three (3) months.

G.R. Nos. 154297-300. February 15, 2008.*

PUBLIC ATTORNEY’S OFFICE, MAXIMO B. USITA, JR. and WILFREDO C. ANDRES, petitioners, vs. THE HON. SANDIGANBAYAN, SPECIAL DIVISION, respondent.

Certiorari; Grave Abuse of Discretion; Concept of Grave Abuse of Discretion; Court holds that respondent did not gravely abuse its discretion in issuing the subject resolutions as the issuance is not characterized by caprice or arbitrariness.—Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The Court holds that respondent did not gravely abuse its discretion in issuing the subject Resolutions as the issuance is not characterized by caprice or arbitrariness. At the time of PAO’s appointment, the accused did not want to avail

themselves of any counsel; hence, respondent exercised a judgment call to protect the constitutional right of the accused to be heard by themselves and counsel during the trial of the cases.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Public Attorney’s Office for petitioners.

The Solicitor General for respondent.

AZCUNA, J.:

This is a petition for certiorari alleging that the Sandiganbayan, Special Division, committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated May 28, 2002 and June 11, 2002 retaining petitioners, Atty. Maximo B. Usita, Jr. and Atty. Wilfredo C. Andres of the Public Attorney’s Office (PAO), as counsels de oficio of then accused President Joseph Estrada and his son, Jose “Jinggoy” Estrada.

The facts are as follows:

On March 15 and 18, 2002, Atty. Persida V. Rueda-Acosta, Chief Public Attorney of PAO personally appeared before respondent Special Division of the Sandiganbayan1 to request the relief of the appearance of PAO as de oficio counsel for accused President Joseph Estrada and Jose Estrada in their criminal cases before the Sandigabayan. However, the request was denied.

On May 8, 2002, the Chief Public Attorney filed an Urgent and Ex Parte Motion to be Relieved as Court-Appointed Counsel with the Special Division of the Sandiganbayan, praying that she be relieved of her duties and responsibilities as counsel de oficio for the said accused on the ground that she had a swelling workload consisting of administrative matters and that the accused are not indigent persons; hence, they are not qualified to avail themselves of the services of PAO.

On May 9, 2002, respondent Court found the reasons of the Chief Public Attorney to be plausible and relieved the Chief Public Attorney as counsel de oficio of former President Joseph Estrada and Mayor Jose Estrada.

On May 14, 2002, the remaining eight PAO lawyers filed an Ex Parte Motion To Be Relieved As Court-Appointed Counsels with respondent Court on the ground that the accused, former President Joseph Estrada and Jose Estrada, are not indigents; therefore, they are not qualified to avail themselves of the services of PAO.

On May 28, 2002, respondent Court issued a Resolution denying the motion, but retaining two of the eight PAO lawyers, namely, the petitioners Atty. Usita, Jr. and Atty. Andres. The pertinent portion of the Resolution reads:

“. . . There being no compelling and sufficient reasons to abandon the Court’s previous rulings, the instant motion is hereby DENIED. While it is true that a similar motion filed by the PAO Chief Public Attorney Persida Rueda-Acosta was granted per Court’s Resolution of May 9, 2002, the rationalization advanced by Atty. Rueda was found meritorious by the Court in that there was unexpected upsurge in her administrative workload as head of the office including the administration and supervision of more or less 1,000 PAO lawyers and 700 staff nationwide and many other functions which require her immediate attention and undivided time.

Nonetheless, considering that there are eight (8) de oficio counsels from the Public Attorney’s Office (PAO), the Court, in the exercise of its sound discretion, deems it proper to reduce their number and retain only two (2) of them, namely: Atty. Wilfredo C. Andres and Atty. Maximo B. Usita to continue their duties and responsibilities as counsels de oficio for accused Joseph and Jose “Jinggoy” Estrada.”2

The retained lawyers of PAO joined the four Courtappointed counsels from the private sector, namely, Prospero Crescini, Justice Manuel Pamaran, Irene Jurado and Noel Malaya.

On June 4, 2002, petitioners filed a motion for reconsideration of the Resolution dated May 28, 2002.

In a Resolution dated June 10, 2002, respondent denied the motion for reconsideration, thus:

“x x x x x x x x x

It appearing that the ground raised by the movants PAO lawyers are mere rehashes/reiterations of their previous arguments which the Court finds to be not valid justification for them to be relieved, either temporarily or permanently of their duties and responsibilities as counsels de oficio in these cases, the instant motion in hereby DENIED.”3

Hence, this petition for certiorari alleging grave abuse of discretion by respondent in rendering the Resolutions dated May 28, 2002 and June 10, 2002.

On September 21, 2004, PAO filed a Manifestation and Compliance which informed the Court that petitioners Atty. Usita and Atty. Andres were appointed as Assistant City Prosecutors of the Quezon City Prosecutor’s Office sometime in August 2002, and that PAO is left as the lone petitioner in this case.

The issue is whether or not respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the subject Resolutions retaining two PAO lawyers to act as counsels de oficio for the accused who are not indigent persons.

PAO contends that it is undeniable that in retaining its two PAO lawyers as counsels de oficio of former President Estrada and Jose Estrada, respondent Court relied upon the provisions of Sec. 7, Rule 116 of the Revised Rules of Criminal Procedure, thus:

“Sec. 7. Appointment of counsel de oficio.—The Court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio such members of the bar in good standing, who, by reason of their experience and ability, can competently defend the accused.”

PAO, however, submits that the power of respondent to appoint and retain PAO lawyers as counsels de oficio is limited by Sec. 20 of Letter of Implementation (LOI) No. 20 dated December 31, 1972 and Presidential Decree (PD) No. 1725 dated September 26, 1980, thus:

LOI No. 20

Sec. 20. The Citizens Legal Assistance Office shall represent, free of charge, indigent persons mentioned in Republic Act No. 6035, or the immediate members of their family, in all civil, administrative, and criminal cases where after due investigation the interest of justice will be served thereby, except agrarian reform cases as defined by Republic Act 3844, as amended, which shall be handled by the Bureau of Agrarian Legal Assistance of the Department of Agrarian Reform, and such cases as are now handled by the Department of Labor.

PD No. 1725

WHEREAS, the Citizen’s Legal Assistance Office as the law office of the Government of the Republic of the Philippines for indigent and low-income persons, performs a vital role in the implementation of the legal aid program of the State, in upholding the rule of law, in the protection and safeguarding of the institutional and statutory rights of the citizenry, and in the efficient and speedy administration of justice.”

The Revised Administrative Code of 1987 renamed the Citizen’s Legal Assistance Office as the Public Attorney’s Office and retained its powers and functions. Section 14, Chapter 5, Title III, Book V of the said Code provides:

“Sec. 14. Public Attorney’s Office (PAO).—The Citizen’s Legal Assistance Office (CLAO) is renamed Public Attorney’s Office (PAO). It shall exercise the powers and functions as are now provided by law for the Citizen’s Legal Assistance Office or may hereafter be provided by law.”

In the implementation of the foregoing provisions of law, PAO issued Memorandum Circular No. 5, Series of 1997, as amended by Memorandum Circular No. 12, Series of 2001, and subsequently by Memorandum Circular No. 18, Series of 2002, defining who are indigent persons qualified to avail themselves of the services of PAO, thus:

“Section 3. Indigency Test.—Taking into consideration recent surveys on the amount needed by an average Filipino to 1) buy its food consumption basket and b) pay for its household and personal expenses, the following shall be considered indigent persons:

1. Those residing in Metro Manila whose family income does not exceed P14,000.00 a month;

2. Those residing in other cities whose family income does not exceed P13,000.00 a month;

3. Those residing in all other places whose family income does not exceed P12,000.00 a month.

The term “family income” as herein employed shall be understood to refer to the gross income of the litigant and that of his or her spouse, but shall not include the income of the other members of the family.”

PAO states that the Statement of Assets and Liabilities attached to the records of the cases of the accused show that they were not qualified to avail themselves of the services of PAO, since they could afford the services of private counsels of their own choice. It noted that the wife of former President Estrada had an income exceeding P14,000.

PAO argues that the only exception when it can appear on behalf of a non-indigent client is when there is no available lawyer to assist such client in a particular stage of the case, that is, during arraignment or during the taking of the direct testimony of any prosecution witness subject to crossexamination by the private counsel on record. The appearance of PAO is only provisional in those instances.

PAO asserts that the sole reliance of respondent on Sec. 7, Rule 116 of the Revised Rules of Criminal Procedure is improper. Respondent should have not only considered the character of PAO lawyers as members of the Bar, but especially their mandate to serve only indigent persons. In so doing, the contradiction in the exercise of PAO’s duties and responsibilities could have been avoided.

PAO asserts that while its lawyers are also aware of their duties under Rule 14.02 of the Code of Professional Responsibility,4 PAO lawyers are limited by their mandate as government lawyers.

Hence, PAO submits that the subject Resolutions of respondent are not in accordance with the mandate of PAO and affect the rendition of effective legal service to a large number of its deserving clients.

In defense, respondent Special Division of the Sandiganbayan, represented by the Office of the Special Prosecutor, stated that it did not commit grave abuse of discretion since it did not act in an arbitrary, capricious and whimsical manner in issuing the subject Resolutions.

It explained that it was facing a crisis when respondent issued the subject Resolutions. At that time, the accused, former President Joseph Estrada, relieved the services of his counsels on nationwide television. Subsequently, the counsels of record of co-accused Jose Estrada withdrew, and both accused were adamant against hiring the services of new counsels because they allegedly did not believe in and trust the Sandiganbayan. The Sandiganbayan had the duty to decide the cases, but could not proceed with the trial since the accused were not assisted by counsel.

Respondent stated that, bound by its duty to protect the constitutional right of the accused to be heard by himself and counsel, it exercised its prerogative under Sec. 7, Rule 116 of the Revised Rules of Criminal Procedure,5 and appointed Chief Public Attorney Persida V. Rueda-Acosta of the PAO and eight other PAO lawyers, including petitioners, to act as counsels de oficio for the said accused. As noted earlier, the Chief Public Attorney and six PAO lawyers were later relieved from such duty, but respondent retained two PAO lawyers as counsels de oficio for the accused.

Considering the attendant situation at the time of the issuance of the subject Resolutions, respondent asserts that it did not act in an arbitrary, despotic, capricious or whimsical manner in issuing the subject Resolutions. In appointing the PAO lawyers to act as counsels for the said accused, respondent merely acted within the prerogative granted to it by the Rules of Court in order to protect the constitutional right of the accused to be heard by himself and counsel. Respondent also merely required petitioners to perform their duty as members of the Bar and officers of the court to assist the court in the efficient administration of justice.

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.6

The Court holds that respondent did not gravely abuse its discretion in issuing the subject Resolutions as the issuance is not characterized by caprice or arbitrariness. At the time of PAO’s appointment, the accused did not want to avail themselves of any counsel; hence, respondent exercised a judgment call to protect the constitutional right of the accused to be heard by themselves and counsel during the trial of the cases.

Subsequently, respondent reduced the number of PAO lawyers directed to represent the accused, in view of the engagement of new counsels de parte, but retained two of the eight PAO lawyers obviously to meet such possible exigency as the accused again relieving some or all of their private counsels.

In any event, since these cases of the accused in the Sandiganbayan have been finally resolved, this petition seeking that PAO, the only remaining petitioner, be relieved as counsel de oficio therein has become moot.

WHEREFORE, the petition is DISMISSED for being moot.

No costs.

A.C. No. 4724. April 30, 2003.*

GORETTI ONG, complainant, vs. ATTY. JOEL M. GRIJALDO, respondent.

Legal Ethics; Attorneys; Once a lawyer agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed to him.—Respondent breached his duty to his client when he failed to inform complainant of the status of the criminal case. His negligence shows a glaring lack of the competence and

diligence required of every lawyer. His infraction is rendered all the more deplorable by the fact that complainant is a resident of Quezon City and the case was filed in Bacolod City. It was precisely for this reason that complainant engaged the services of respondent, a Bacolod-based lawyer, so that her interests in the case may be amply protected in her absence. Respondent’s failure to look after his client’s welfare in the case was a gross betrayal of his fiduciary duty and a breach of the trust and confidence which was reposed in him. In a similar case, we held: It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. He has the right to decline employment subject however, to the provision of Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed to him. Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his client’s request for information. Respondent’s failure to communicate with his client by deliberately disregarding its request for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case.

Same; Same; A lawyer’s misappropriation of the money entrusted to him and his refusal to account for it to his client despite repeated demands are competent proof of his unfitness for the confidence and trust reposed on him.—Respondent’s misappropriation of the money entrusted to him and his refusal to account for it to his client despite repeated demands were competent proof of his unfitness for the confidence and trust reposed on him. His acts showed a lack of personal honesty and good moral character as to render him unworthy of public confidence. He held the money in trust for his client as settlement of the case he was handling. Upon receipt thereof, he was under obligation to immediately turn it over, in the absence of a showing that he had a lien over it. As a lawyer, he should have been scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted.

Same; Same; A lawyer, by converting the money of his client to his own personal use without her consent, is guilty of deceit, malpractice and gross misconduct.—A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his client that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client’s consent. Respondent, by converting the money of his client to his own personal use without her consent, was guilty of deceit, malpractice and gross misconduct. Not only did he degrade himself but as an unfaithful lawyer he besmirched the fair name of an honorable profession.

Same; Same; Contempt; A lawyer, by his failure to promptly turn over the money to his client and his conversion of the same for his personal use renders him liable for contempt under Rule 138, Section 25 of the Rules of Court, aside from violating the Code of Professional Responsibility.—Aside from violating the Code of Professional Responsibility, respondent’s failure to promptly turn over the money to his client and his conversion of the same for his personal use rendered him liable for contempt under Rule 138, Section 25 of the Rules of Court, to wit: Unlawful retention of client’s funds; contempt.—When an attorney unjustly retains in his hands money of his client after it has been demanded he may be punished for contempt as an officer of the court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution.

Same; Same; Conflict of Interests; A lawyer violates his oath of office and duties as counsel when he approaches his client’s opponent and offer to delay the case in exchange for money.—Respondent violated his oath of office and duties as counsel when he approached his client’s opponent and offered to delay the case in exchange for money. His offer to delay the case would have frustrated the interests of his client which he had sworn to protect. As a lawyer, respondent should avoid any unethical or improper practices that impede, obstruct or prevent the speedy, efficient and impartial adjudication of cases. x x x Respondent’s act of propositioning his client’s opponent and offering to delay the case against her was intended to benefit the latter. Hence, such act amounted to double-dealing and conflict of interest, and was unethical practice of law. Attorneys, like Caesar’s wife, must not only keep inviolate their client’s confidence, but must also avoid the appearance of treachery and double-dealing, for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.

Same; Same; A lawyer’s cavalier attitude in repeatedly ignoring the directives of the Supreme Court to file his comment constitutes utter disrespect to the judicial institution.—Respondent’s cavalier attitude in repeatedly ignoring the directives of this Court to file his comment constitutes utter disrespect to the judicial institution. His conduct indicates a high degree of irresponsibility. A resolution of this Court is not to be construed as a mere request, nor should it be complied with partially, inadequately or selectively. Respondent’s

obstinate refusal to comply therewith not only betrays a recalcitrant flaw in his character; it also underscores his disrespect of our lawful orders which is only too deserving of reproof.

Same; Same; Respect of litigants for the profession is inexorably diminished whenever a member of the Bar betrays their trust and confidence.—All told, respondent’s transgressions manifested dishonesty and amounted to grave misconduct and grossly unethical behavior which caused dishonor, not only to complainant, but to the noble profession to which he belongs, for it cannot be denied that the respect of litigants for the profession is inexorably diminished whenever a member of the Bar betrays their trust and confidence. He has proved himself unworthy of membership in the legal profession and must, therefore, be disbarred.

ADMINISTRATIVE MATTER in the Supreme Court. Disbarment.

The facts are stated in the opinion of the Court.

PER CURIAM:

The fiduciary duty of a lawyer and advocate is what places the law profession in a unique position of trust and confidence, and distinguishes it from any other calling. Once this trust and confidence is betrayed, the faith of the people not only in the individual lawyer but also in the legal profession as a whole is eroded. To this end, all members of the bar are strictly required to at all times maintain the highest degree of public confidence in the fidelity, honesty, and integrity of their profession.1 In this administrative case for disbarment, respondent Atty. Joel M. Grijaldo failed to perform his sworn duty to preserve the dignity of the legal profession.

Complainant Goretti Ong is a widow residing in Talayan Village, Quezon City. Sometime in the early part of 1996, she engaged the services of respondent, a practicing lawyer in Bacolod City, as private prosecutor in Criminal Case No. 52843 before the Metropolitan Trial Court in Cities of Bacolod City, Branch 5, against Lemuel Sembrano and Arlene Villamil for violation of Batas Pambansa Bilang 22.2 During one of the hearings of the case, the accused offered to amicably settle their civil obligation to complainant by paying the amount of P180,000.00. Complainant accepted the offer on the condition that payment shall be made in cash.

At the hearing held on July 17, 1996, respondent advised complainant to wait outside the courtroom. When he came out, he handed to complainant cash in the amount of P100,000.00 and Metrobank Check No. 0701263862 for P80,000.00, postdated August 16, 1996, drawn by Atty. Roger Reyes, counsel for the accused. Complainant objected to the check payment and refused to settle the case, but he assured her that the check was drawn by a reputable lawyer. Complainant was prevailed upon by respondent into signing an affidavit of desistance, but she instructed him not to file it in court until the check is cleared.

Upon presentment on its maturity date, the check was dishonored due to a stop-payment order from the drawer. Complainant immediately informed respondent of the dishonor, and the latter told her that he will talk to Atty. Reyes about it. Later, when complainant met with respondent in Manila, he relayed to her Atty. Reyes’ offer to replace the check with cash. Several weeks passed without any payment of the proceeds of the check, despite complainant’s repeated telephone calls to respondent. Sometime in December 1996, she suggested that respondent move for a hearing of the case, but he told her that courts are not inclined to set hearings near the Christmas season.

On December 17, 1996, complainant personally went to Bacolod City to inquire about her case. She was surprised to learn that the same was dismissed as early as September 26, 1996.3 Apparently, respondent submitted her Affidavit of Desistance4 and, on the basis thereof, the public prosecutor moved for the dismissal of the case which was granted by the court. When complainant confronted respondent, he admitted to her that he had already received the amount of P80,000.00 from Atty. Reyes but he used the same to pay for his financial obligations.

Thus, on April 2, 1997, complainant filed an Administrative Complaint against respondent for disbarment.5

Complainant further alleged in her complaint that respondent represented her in another case, entitled “People of the Philippines versus Norma Mondia,” also for violation of B.P. 22, where she was the offended party. Respondent approached the accused, Norma Mondia, and offered to delay the hearing of the case in consideration of the amount of P10,000.00. However, Mondia did not have that amount of money. Attached to the complaint is the affidavit of Norma Mondia attesting to this fact.6

Furthermore, Henry Tiu, a former client of respondent, executed an affidavit, which is attached to the complaint, alleging that he gave respondent the amount of P3,000.00 for the purpose of posting his bail bond, but respondent did not post his bail which resulted in Tiu’s arrest.7

Likewise, a certain Luz Dimailig, whose affidavit is also attached to the complaint, averred that respondent represented her as counsel for plaintiff in a civil case before the Regional Trial Court of Bacolod City, Branch 52; that the case was dismissed by the trial court; that the appeal filed by respondent to the Court of Appeals was dismissed due to his failure to file the appellant’s brief; and that the petition for review before the Supreme Court was denied for lack of proof of service on the Court of Appeals, late filing and late payment of docket fees. Moreover, Dimailig alleged that she gave respondent the amount of P10,000.00 for settling the said civil case, but she later learned that he did not remit the money to the defendants or their counsel.8

On June 25, 1997, respondent was required to file his comment within ten days from notice.9 Respondent filed a Motion for Extension of Time, alleging that he has not received a copy of the complaint.10 On February 5, 1998,11 complainant furnished respondent a copy of the complaint. However, despite receipt of a copy of the complaint, respondent still failed to file his comment.

On October 19, 1998, respondent was required to show cause why he should not be disciplinarily dealt with or held in contempt for failing to file his comment.12 Respondent filed a Compliance, stating that the copy of the complaint he received from complainant was not legible. Complainant again furnished respondent with a clearer and more legible copy of the complaint including its annexes; but respondent still did not file his comment. Consequently, on June 14, 2000, another show cause order was issued against respondent.13 Respondent replied by stating that the quality of the copy furnished him by complainant was worse than the first one he received.

Dissatisfied with respondent’s explanation, respondent was ordered to pay a fine of P1,000.00, which he complied with on November 27, 2000.14 However, he again failed to file his comment and, instead, moved for additional time to file said comment.

On August 13, 2001, this case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.15 The records of the IBP show that respondent has not filed his comment to the complaint. On January 18, 2002, the Investigating Commissioner, Manuel A. Tiuseco, submitted his report recommending the disbarment of respondent.16 However, in its Resolution No. XV-2002-553 dated October 19, 2002, the IBP Board of Governors modified the penalty of disbarment and recommended instead respondent’s indefinite suspension from the practice of law for grossly immoral conduct and deceit.17

After a careful review of the records of this case, we find the recommendation of Commissioner Manuel A. Tiuseco well-taken.

It is clear that respondent gravely abused the trust and confidence reposed in him by his client, the complainant. Were it not for complainant’s vigilance in inquiring into the status of her case, she would not have known that the same had already been dismissed on September 26, 1996. Respondent deliberately withheld this fact from her, notwithstanding that she talked to him sometime in December 1996.

Canon 18 of the Code of Professional Responsibility provides that a lawyer shall serve his client with competence and diligence. More specifically, Rule 18.03 and Rule 18.04 state:

Rule 18.03. A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

Rule 18.04. A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.

Respondent breached his duty to his client when he failed to inform complainant of the status of the criminal case. His negligence shows a glaring lack of the competence and diligence required of every lawyer.18 His infraction is rendered all the more deplorable by the fact that complainant is a resident of Quezon City and the case was filed in Bacolod City. It was precisely for this reason that complainant engaged the services of respondent, a Bacolod-based lawyer, so that her interests in the case may be amply protected in her absence. Respondent’s failure to look after his client’s welfare in the case was a gross betrayal of his fiduciary duty and a breach of the trust and confidence which was reposed in him. In a similar case, we held:

It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. He has the right to decline employment subject however, to the provision of Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed to him. Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his client’s request for information. Respondent’s failure to communicate with his client by deliberately disregarding its request for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case.19

Worse, when respondent used the money which he received from Atty. Reyes to pay for his own obligations, he violated Canon 16 of the Code of Professional Responsibility, which states that “[a] lawyer shall hold in trust all moneys and properties of his client that may come into his possession.” Furthermore:

Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.

Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.

Rule 16.03. A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful lees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

Respondent’s misappropriation of the money entrusted to him and his refusal to account for it to his client despite repeated demands were competent proof of his unfitness for the confidence and trust reposed on him. His acts showed a lack of personal honesty and good moral character as to render him unworthy of public confidence. He held the money in trust for his client as settlement of the case he was handling. Upon receipt thereof, he was under obligation to immediately turn it over, in the absence of a showing that he had a lien over it. As a lawyer, he should have been scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted.20

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his client that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client’s consent. Respondent, by converting the money of his client to his own personal use without her consent, was guilty of deceit, malpractice and gross misconduct. Not only did he degrade himself but as an unfaithful lawyer he besmirched the fair name of an honorable profession.21

Aside from violating the Code of Professional Responsibility, respondent’s failure to promptly turn over the money to his client and his conversion of the same for his personal use rendered him liable for contempt under Rule 138, Section 25 of the Rules of Court, to wit:

Unlawful retention of client’s funds; contempt.—When an attorney unjustly retains in his hands money of his client after it has been demanded he may be punished for contempt as an officer of the court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution.

Furthermore, respondent violated his oath of office and duties as counsel when he approached his client’s opponent and offered to delay the case in exchange for money. His offer to delay the case would have frustrated the interests of his client which he had sworn to protect. As a lawyer, respondent should avoid any unethical or improper practices that impede, obstruct or prevent the speedy, efficient and impartial adjudication of cases.22

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.23

Respondent’s act of propositioning his client’s opponent and offering to delay the case against her was intended to benefit the latter. Hence, such act amounted to double-dealing and conflict of interest, and was unethical practice of law. Attorneys, like Caesar’s wife, must not only keep inviolate their client’s confidence, but must also avoid the appearance of treachery and double-dealing, for only then can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.24

Finally, respondent’s cavalier attitude in repeatedly ignoring the directives of this Court to file his comment constitutes utter disrespect to the judicial institution. His conduct indicates a high degree of irresponsibility. A resolution of this Court is not to be construed as a mere request, nor should it be complied with partially, inadequately or selectively.25 Respondent’s obstinate refusal to comply therewith not only betrays a recalcitrant flaw in his character; it also underscores his disrespect of our lawful orders which is only too deserving of reproof.

Any departure from the path which a lawyer must follow as demanded by the virtues of his profession shall not be tolerated by this Court as the disciplining authority. This is especially so, as in the instant case, where respondent even deliberately defied the lawful orders of the Court for him to file his comment on the complaint, thereby transgressing Canon 11 of the Code of Professional Responsibility which requires a lawyer to observe and maintain the respect due the courts.26

All told, respondent’s transgressions manifested dishonesty and amounted to grave misconduct and grossly unethical behavior which caused dishonor, not only to complainant, but to the noble profession to which he belongs, for it cannot be denied that the respect of litigants for the profession is inexorably diminished whenever a member of the Bar betrays their trust and confidence.27 He has proved himself unworthy of membership in the legal profession and must, therefore, be disbarred.

WHEREFORE, for dishonesty, grave misconduct, and grossly unethical behavior, respondent ATTY. JOEL GRIJALDO is DISBARRED from the practice law. His name is ordered STRICKEN from the Roll of Attorneys. He is further directed to PAY complainant Goretti Ong the amount of P80,000.00 within ten (10) days from notice of this Decision.

This Decision shall take effect immediately. Copies thereof shall be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record; the Integrated Bar of the Philippines; the Office of the President; the Department of Justice; the Court of Appeals; the Sandiganbayan; the Philippine Judges Association; and all courts of the land for their information and guidance.

SO ORDERED.

A.C. No. 5948. January 22, 2003.*

(Formerly A.M. No. CBD-354)

GAMALIEL ABAQUETA, complainant, vs. ATTY. BERNARDITO A. FLORIDO, respondent.

Legal Ethics; Attorneys; Conflict of Interest; There is a conflict of interest if there is an inconsistency in the interests of two or more opposing parties, and the test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim but it is his duty to oppose it for the other client.—There is a conflict of interest if there is an inconsistency in the interests of two or more opposing parties. The test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim but it is his duty to oppose it for the other client. In short, if he argues for one client, this argument will be opposed by him when he argues for the other client. There is a representation of conflicting interests if the

acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.

Same; Same; Same; While it is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client, once he agrees to take up the cause of the client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him.—It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline such employment, subject, however, to Canon 14 of the Code of Professional Responsibility. Once he agrees to take up the cause of the 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.

Same; Same; Same; A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client.—A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client. The reason for the prohibition is found in the relation of attorney and client which is one of trust and confidence of the highest degree. Indeed, as we stated in Sibulo v. Cabrera, “The relation of attorney and client is based on trust, so that double dealing, which could sometimes lead to treachery, should be avoided.”

Same; Same; Lawyers do not have knowledge of the personal circumstances of a party in a case and usually rely on the information supplied by their clients.—Credence cannot, however, be given to the charge that respondent fraudulently and maliciously falsified the true and correct address of the complainant notwithstanding respondent’s knowledge thereof. Lawyers normally do not have knowledge of the personal circumstances of a party in a case and usually rely on the information supplied by their clients. The fact that respondent sent a letter to complainant at the latter’s correct address sixteen months before the filing of Civil Case No. CEB-11453 does not by itself prove malice on the part of respondent. A new address was furnished by Milagros Yap Abaqueta days before the complaint was filed. Respondent had no reason to doubt the correctness of the address of the complainant given to him by Milagros Yap Abaqueta considering that she was complainant’s wife.

ADMINISTRATIVE MATTER in the Supreme Court. Representing Conflicting Interest.

The facts are stated in the resolution of the Court.

Errol Wilfred J. Zshornack for complainant.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

This is an administrative complaint1 against Atty. Bernardito A. Florido filed with the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, praying that appropriate sanctions be imposed on respondent for representing conflicting interests. Complainant is a Filipino by birth who had acquired American citizenship. He resides at 15856 N. 15th Way, Phoenix, Arizona 85022, U.S.A. Respondent is a practicing lawyer based in Cebu City.

On November 28, 1983, complainant engaged the professional services of respondent through his attorney-in-fact, Mrs. Charito Y. Baclig, to represent him in Special Proceedings No. 3971-R, entitled, “In the Matter of the Intestate Estate of Deceased Bonifacia Abaqueta,2 Susana Uy Trazo, petitioner” before the Regional Trial Court of Cebu.3

Accordingly, respondent entered his appearance in Special Proceedings No. 3971-R as counsel for herein complainant.4 Subsequently, he filed complainant’s “Objections and Comments to Inventory and Accounting,” registering complainant’s objection—

. . . to the inclusion of the properties under Items 1 to 5 contained in the inventory of the administratrix dated November 9, 1983. These properties are the sole and exclusive properties of the oppositor per the latest tax declarations already marked as Exhibits “2”, “3”, “4”, “5” and “6” in the Formal Offer of Exhibits by oppositor in writing dated August 17, 1983

x x x.5

Several years later, Milagros Yap Abaqueta filed an action for sum of money against complainant, docketed as Civil Case No. CEB-11453 and entitled, “Milagros Yap Abaqueta vs. Gamaliel Abaqueta and Casiano Gerona.”6 Respondent signed the Complaint

as counsel for plaintiff Milagros Yap Abaqueta, averring, inter alia, that:

Plaintiff and defendant Gamaliel Abaqueta are the conjugal owners of those certain parcels of land, more particularly as follows . . .

The “parcels of land” referred to as conjugal property of complainant and Milagros Yap-Abaqueta are the very same parcels of land in Special Proceedings No. 3971-R which respondent, as lawyer of complainant, alleged as the “sole and exclusive properties” of complainant. In short, respondent lawyer made allegations in Civil Case No. CEB-11453 which were contrary to and in direct conflict with his averments as counsel for complainant in Special Proceedings No. 3971-R.

Complainant further averred that respondent admitted he was never authorized by the former to appear as counsel for complainant’s ex-wife in Civil Case No. CEB-11453; that respondent failed to indicate in the Complaint the true and correct address of herein complainant, which respondent knew as far back as August 2, 1990, when he wrote a letter to the complainant at the said address.7 Consequently, complainant failed to receive summons and was declared in default in Civil Case No. CEB-11453. While the order of default was eventually set aside, complainant incurred expenses to travel to the Philippines, which were conservatively estimated at $10,000.00. He argues that respondent’s conduct constitute professional misconduct and malpractice as well as trifling with court processes.

In his defense, respondent claims in his Answer8 that he always acted in good faith in his professional relationship with complainant in spite of the fact that they have not personally met. He based the matters he wrote in the Complaint on information and documents supplied by Mrs. Charito Y. Baclig, complainant’s sister-in-law and attorney-in-fact, indicating that he was sole and exclusive owner of the properties. This was sometime in November 1983. No affidavit of adjudication was ever furnished respondent by complainant and this was apparently suppressed because it would show that the properties formed part of the estate.

Eight years later, in November 1991, long after Special Proceedings No. 3971-R was settled and the attorney-client relationship between complainant and respondent was terminated, Mrs. Milagros Abaqueta through Mrs. Baclig, engaged his services to file Civil Case No. CEB-11453. Mrs. Baclig presented to him a deed of absolute sale dated July 7, 1975,9 showing that the properties subject hereof were not complainant’s exclusive property but his conjugal property with his wife, the same having been acquired during the subsistence of their marriage. Thus, in all good faith, respondent alleged in the complaint that said properties were conjugal assets of the spouses.

Respondent further pointed out that his law firm handles on the average eighty new court cases annually and personally interviews four or five clients, prospective clients and/or witnesses daily except Saturdays and Sundays. It regularly closes to the public at 7:00 p.m., but work continues sometimes until 8:30 p.m. This has been going on for the last twenty-five years out of respondent’s thirty-three years of private practice. The absence of personal contact with complainant and the lapse of eight years resulted in the oversight and/or lapse of respondent’s memory that complainant was a former client. Furthermore, the caption of the Special Proceeding was not in the name of complainant but was entitled, “In the Matter of the Intestate Estate of Bonifacia Payahay Abaqueta.”

Respondent expressed regret over the oversight and averred that immediately after discovering that he formerly represented complainant in Special Proceeding No. 3971-R, he filed a motion to withdraw as counsel for plaintiff, which was granted by the trial court.10 He denied any malice in his acts and alleged that it is not in his character to do malice or falsehood particularly in the exercise of his profession.

In his Comments/Observations on Respondent’s Answer,11 complainant averred that respondent’s conduct was geared towards insuring a court victory for Milagros Yap in Civil Case No. CEB-11453, wherein he deliberately stated that complainant’s address was 9203 Riverside Lodge Drive, Houston, Texas, 77083, U.S.A., when he knew fully well that complainant’s true and correct address was c/o V.A. Hospital, 7th Street & Italian School Road, Phoenix, Arizona, 85013, U.S.A. By falsely stating and concealing his true and correct address, respondent eventually succeeded in obtaining a default judgment in favor of his client.

During the pendency of these proceedings before the IBP, it appeared that respondent’s son got married to the daughter of IBP National President Arthur D. Lim. Thus, Atty. Lim inhibited himself from participating in the resolution of the case.12 Subsequently, a Resolution was issued requiring the IBP to elevate the entire records the case within thirty (30) days from notice.13

The main issue to be resolved in the case at bar is whether or not respondent violated Rule 15.03 of the Code of Professional Responsibility. The investigating commissioner found that respondent clearly violated the prohibition against representing conflicting interests and recommended that he be suspended from the practice of law for a period of three (3) months.

We find the recommendation well-taken.

Rule 15.03 of the Code of Professional Responsibility explicitly provides that—

RULE 15.03.—A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.

There is a conflict of interest if there is an inconsistency in the interests of two or more opposing parties. The test is whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim but it is his duty to oppose it for the other client.14 In short, if he argues for one client, this argument will be opposed by him when he argues for the other client.15

There is a representation of conflicting interests if the acceptance of the new retainer will require the attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge acquired through their connection.16

As pointed out by the investigating commissioner, respondent does not deny that he represented complainant in Special Proceedings No. 3971-R. He also does not deny that he is the lawyer of Milagros Yap Abaqueta in Civil Case No. CEB-11453, filed against complainant and involving the same properties which were litigated in Special Proceedings No. 3971-R. Respondent also admitted that he did not secure the consent of complainant before he agreed to act as Milagros Yap Abaqueta’s lawyer in Civil Case No. CEB-11453.

The reasons proffered by respondent are hardly persuasive to excuse his clear representation of conflicting interests in this case. First, the investigating commissioner observed that the name “Gamaliel Abaqueta” is not a common name. Once heard, it will. surely ring a bell in one’s mind if he came across the name again. In this case, respondent actively prosecuted the cause of complainant in Special Proceedings No. 3971-R, such that it would be impossible for respondent not to have recalled his name.

Second, assuming arguendo that respondent’s memory was indeed faulty, still it is incredible that he could not recall that complainant was his client, considering that Mrs. Charito Baclig, who was complainant’s attorney-in-fact and the go-between of complainant and respondent in Special Proceedings No. 3971-R, was the same person who brought Milagros Yap Abaqueta to him. Even a person of average intelligence would have made the connection between Mrs. Baclig and complainant under such circumstances.

Lastly, the fact that the subject matter of Civil Case No. CEB-11453 and Special Proceedings No. 3971-R are the same properties could not have escaped the attention of respondent. With such an abundance of circumstances to aid respondent’s memory, it simply strains credulity for him to have conveniently forgotten his past engagement as complainant’s lawyer. What rather appears, given the prevailing facts of this case, is that he chose to ignore them on the assumption that the long period of time spanning his past and present engagement would effectively blur the memories of the parties to such a discrepancy.

It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline such employment,17 subject, however, to Canon 14 of the Code of Professional Responsibility.18 Once he agrees to take up the cause of the client, the lawyer owes fidelity to such cause and must always be mindful of the trust and confidence reposed in him.19 He must serve the client with competence and diligence20 and champion the latter’s cause with wholehearted fidelity, care and devotion.21

A lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client.22 The reason for the prohibition is found in the relation of attorney and client which is one of trust and confidence of the highest degree.23 Indeed, as we stated in Sibulo v. Cabrera,24 “The relation of attorney and client is based on trust, so that double dealing, which could sometimes lead to treachery, should be avoided.”25

Credence cannot, however, be given to the charge that respondent fraudulently and maliciously falsified the true and correct address of the complainant notwithstanding respondent’s knowledge thereof. Lawyers normally do not have knowledge of the personal circumstances of a party in a case and usually rely on the information supplied by their clients. The fact that respondent sent a letter to complainant at the latter’s correct address26 sixteen months before the filing of Civil Case No. CEB-11453 does not by itself prove malice on the part of respondent. A new address was furnished by Milagros Yap Abaqueta days before the complaint was filed. Respondent had no reason to doubt the correctness of the address of the complainant given to him by Milagros Yap Abaqueta considering that she was complainant’s wife.

WHEREFORE, Atty. Bernardito A. Florido is SUSPENDED from the practice of law for Three (3) months. He is further ADMONISHED to exercise greater care and diligence in the performance of his duties towards his clients and the court. He is warned that a repetition of the same or similar offense will be dealt with more severely.

SO ORDERED.

Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.

Davide, Jr. (C.J.), No part, due to closeness to a party.

Bellosillo, J., On leave.

Respondent suspended from practice of law for three (3) months and admonished to exercise greater care and diligence in performance of duties, with warning against repetition of similar offense.

A.C. No. 4354. April 22, 2002.*

LOLITA ARTEZUELA, complainant, vs. ATTY. RICARTE B. MADERAZO, respondent.

Administrative Law; Attorneys; Due Process; In administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings.—In administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings, as “actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies.” Due process is fulfilled when the parties were given reasonable opportunity to be heard and to submit evidence in support of their arguments.

Same; Same; To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party; To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty.—To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party’s conflicting interests of record—although these circumstances are the most obvious and satisfactory proof of the

charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty.

Same; Same; An attorney may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client.—An attorney owes his client undivided allegiance. Because of the highly fiduciary nature of the attorney-client relationship, sound public policy dictates that a lawyer be prohibited from representing conflicting interests or discharging inconsistent duties. He may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. Indeed, good faith and honest intention on the part of the erring lawyer does not make this rule inoperative. The lawyer is an officer of the court and his actions are governed by the uncompromising rules of professional ethics.

ADMINISTRATIVE MATTER in the Supreme Court. Violation of Canon 6, Code of Professional Ethics and Canon 15 and Rule 15.03, Code of Professional Responsibility.

The facts are stated in the opinion of the Court.

Daryll Amante for complainant.

PUNO, J.:

For his failure to meet the exacting standards of professional ethics, the Board of Governors of the Integrated Bar of the Philippines (IBP) in its Resolution of May 2, 2000 recommended the suspension from the practice of law of respondent Atty. Ricarte B. Maderazo for the period of six (6) months, with a stern warning that repetition of the same act will be dealt with more severely. Respondent allegedly represented conflicting interests in violation of Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility.1

By way of a Motion for Reconsideration,2 respondent now comes before this Court to challenge the basis of the IBP’s resolution, and prays for its reversal.

The factual antecedents of the case are as follows: On or about 3:00 in the early morning of December 24, 1992, Allan Echavia had a vehicular accident at Caduman St., corner H. Abellana St., Mandaue City. At the time of the accident, Echavia was driving a Ford Telstar car owned by a Japanese national named Hirometsi Kiyami, but was registered in the name of his brother-in-law, Jun Anthony Villapez. The car rammed into a small carinderia owned by complainant Lolita Artezuela.3

The destruction of the complainant’s carinderia caused the cessation of the operation of her small business, resulting to her financial dislocation. She incurred debts from her relatives and due to financial constraints, stopped sending her two children to college.4

Complainant engaged the services of the respondent in filing a damage suit against Echavia, Villapez and one Bernardo Sia.5 Docketed as Civil Case No. 13666, the case was assigned to Branch 14 of the Regional Trial Court of Cebu. An Amended Complaint was thereafter filed, impleading Echavia, Kiyami and Villapez, and dropping Sia as a party-defendant.6 For his services, complainant paid the respondent the amount of Ten Thousand Pesos (P10,000.00) as attorney’s fees and Two Thousand Pesos (P2,000.00) as filing fee.7 However, the case was dismissed on March 22, 1994, allegedly upon the instance of the complainant and her husband.8

Because of the dismissal of Civil Case No. 13666, complainant filed a civil case for damages against the respondent. It was docketed as CEB-18552 and assigned to Branch 57, Regional Trial Court of Cebu City. The case was dismissed on June 12, 2001.9

On November 24, 1994, Artezuela filed before this Court a verified complaint for disbarment against the respondent. She alleged that respondent grossly neglected his duties as a lawyer and failed to represent her interests with zeal and enthusiasm. According to her, when Civil Case No. 13666 was scheduled for pre-trial conference on August 20, 1993,

respondent asked for its postponement although all the parties were present. Notwithstanding complainant’s persistent and repeated follow-up, respondent did not do anything to keep the case moving. He withdrew as counsel without obtaining complainant’s consent.10

Complainant also claimed that respondent engaged in activities inimical to her interests. While acting as her counsel, respondent prepared Echavia’s Answer to the Amended Complaint. The said document was even printed in respondent’s office. Complainant further averred that it was respondent who sought the dismissal of the case, misleading the trial court into thinking that the dismissal was with her consent.11

Respondent denied the complainant’s allegations and averred that he conscientiously did his part as the complainant’s lawyer in Civil Case No. 13666. He withdrew as counsel because the complainant was uncooperative and refused to confer with him. He also gave several notices to the complainant and made known his intention before he filed his Manifestation to withdraw as counsel. Because of the severed relationship, the lower court, after holding a conference, decided to grant respondent’s manifestation and advised the complainant to secure the services of a new lawyer. Complainant, however, refused and instead, sought the dismissal of the case.12

Respondent alleged that he sought the postponement of the Pre-Trial Conference scheduled on August 20, 1993 so that he could file the Amended Complaint. He admitted that Echavia’s Answer to the Amended Complaint was printed in his office but denied having prepared the document and having acted as counsel of Echavia. He claimed that complainant requested him to prepare Echavia’s Answer but he declined. Echavia, however, went back to his office and asked respondent’s secretary to print the document. Respondent intimated that the complainant and Echavia have fabricated the accusations against him to compel him to pay the amount of P500,000.00.13

This Court referred the complaint to the Integrated Bar of the Philippines (IBP). The IBP-Visayas Regional Committee on Bar Discipline formed an Investigating Committee to hear the disbarment complaint.

On October 6, 1999, Commissioner Gabriel T. Ingles issued a Report finding the respondent guilty of representing conflicting interests, in violation of Canon 15 and Rule 15.03 of the Code of Professional Responsibility, as well as, of Canon 6 of the Code of Professional Ethics. He recommended that the respondent be suspended from the practice of law for a period of one (1) year.14 Commissioner Ingles did not rule on the other issues.

As aforesaid, the Board of Governors of the Integrated Bar of the Philippines upheld the findings of the Committee with modification only as to the penalty.

Seeking reconsideration of the IBP’s resolution, respondent contends that the Investigating Committee did not conduct trial; hence, he was not able to confront and examine the witnesses against him. He argues that the Investigating Committee’s finding that he represented Echavia is contrary to court records and the complainant’s own testimony in CEB-18552. He also casts doubt on the credibility of the Investigating Committee to render just and fair recommendations considering that the Investigating Commissioner and the respondent are counsel-adversaries in another case, Civil Case No. R-33277. Finally, he questions the imposition of a six-month suspension, which he claims to be harsh considering that his private practice is his only source of income.15

After carefully examining the records, as well as the applicable laws and jurisprudence on the matter, this Court is inclined to uphold the IBP’s resolution.

In administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings, as “actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies.”16 Due process is fulfilled when the parties were given reasonable opportunity to be heard and to submit evidence in support of their arguments.17

In the case at bar, records show that respondent repeatedly sought the postponement of the hearings, prompting the Investigating Commissioner to receive complainant’s evidence ex parte and to set the case for resolution after the parties have submitted their respective memorandum. Hence:

“The records show that this is already the third postponement filed by respondent namely December 12, 1996 (sic), January 3, 1996 and April 1, 1996.

The Commission for the last time, will cancel today’s hearing and can no longer tolerate any further postponement. Notify respondent by telegram for the hearing for (sic) April 22, 1996 at 2:00 P.M. Said hearing is intransferable in character.

In the meantime, complainant affirmed her complaint and likewise her witness, Allan Echavia, also affirmed the contents of his affidavit and further stated that he had executed the same and understood the contents thereof.”18

It is by his own negligence that the respondent was deemed to have waived his right to cross-examine the complainant and her witness. He cannot belatedly ask this Court to grant new trial after he has squandered his opportunity to exercise his right.

Respondent’s contention that the finding of the Investigating Committee was contrary to the records and the complainant’s own admission in CEB-18552 is without merit. It is true that Atty. Aviola was Echavia’s counsel-of-record in Civil Case No. 13666 as evidenced by the certification from the clerk of court,19 and as admitted by the complainant in CEB-18552, viz.:

“ATTY. MADERAZO: (To witness- ON CROSS)

Q:

Madam witness, you mentioned that the defendant in this case was the counsel of Allan Echavia as early as August 20, 1993, wherein you learned for the first time of this fact when you say he is counsel of Allan Echavia. (sic) You mean he is the counsel of record of Allan Echavia in the Civil Case before Judge Dacudao? Is that what you mean?

A:

What I learned was that Atty. Alviola was the counsel of Allan Echavia in the case before Judge Dacudao but I heard Atty. Maderazo telling Allan Echavia not to admit that Atty. Maderazo is appearing for me because he will be the one to coordinate with Allan’s case.

Q:

So it is clear that the defendant in this case is not the counsel of record of Allan Echavia. It was Atty. Alviola stated by you now?

A:

Atty. Maderazo was not Allan Echavia’s counsel but it was

Atty. Alviola who was the counsel of record of Allan Echavia.”20

Nevertheless, the issue in this case is not whether the respondent also acted as the counsel-of-record of Echavia. Rather, it is whether or not he had a direct hand in the preparation of Echavia’s Answer to the Amended Complaint.

To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor make his efforts to advance the adverse party’s conflicting interests of record—although these circumstances are the most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of deceit and reward, with impunity, the highest form of disloyalty.

Canon 6 of the Code of Professional Ethics states:

“It is the duty of a lawyer at the time of the retainer to disclose to the client the circumstances of his relations to the parties and any interest in or in connection with the controversy, which might influence the client in the selection of the counsel.

“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when in behalf of one of the clients, it is his duty to contend for that which duty to another client requires him to oppose.” (emphasis supplied)

An attorney owes his client undivided allegiance. Because of the highly fiduciary nature of the attorney-client relationship, sound public policy dictates that a lawyer be prohibited from representing conflicting interests or discharging inconsistent duties. He may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his present or former client. Indeed, good faith and honest intention on the part of the erring lawyer does not make this rule inoperative.21 The lawyer is an officer of the court and his actions are governed by the uncompromising rules of professional ethics. Thus:

“The relations of attorney and client is founded on principles of public policy, on good taste. 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 Ceasar’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.”22

The professional obligation of the lawyer to give his undivided attention and zeal for his client’s cause is likewise demanded in the Code of Professional Responsibility. Inherently disadvantageous to his client’s cause, representation by the lawyer of conflicting interests requires disclosure of all facts and consent of all the parties involved. Thus:

“CANON 15—All lawyers shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.

x x x

Rule 15.03—A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.”

While the Resolution of the IBP is purely recommendatory, we find no reason to reverse the same. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability. As long as the evidence presented by complainant or that taken judicial notice of by the Court is more convincing and worthy of belief than that which is offered in opposition thereto, the imposition of disciplinary sanction is justified.23

A perusal of Echavia’s Answer to the Amended Complaint shows that it indeed conflicts with the complainant’s claims. It reads:

“1. The allegations (sic) in Paragraph One (1) of the Complaint is admitted in so far as it pertains to the personal circumstance and residence of the answering defendant. The rest of the allegations in Paragraph One (1), and all the allegations in Paragraph Two (2), THREE (3), FOUR (4), FIVE (5), SIX (6), ELEVEN (11), TWELVE (12), and FOURTEEN (14), of the Complaint are DENIED for lack of knowledge sufficient to form a belief as to the truth of such allegations.”24

By way of prayer, Echavia states:

“WHEREFORE, it is respectfully prayed that after hearing, judgment be rendered dismissing plaintiff ’s complaint.”25

Anent the authorship by the respondent of the document quoted above, the Investigating Committee found the testimonies of the complainant and Echavia credible as opposed to respondent’s bare denial. As pointed out by Echavia, he was approached by Atty. Maderazo, introduced himself as his lawyer and after some sessions in the latter’s office, asked him to return and sign a document which he later identified as the Answer to the Amended Complaint.

The Investigating Committee found respondent’s defense weak. Respondent did not bother to present his secretary as witness, nor obtain her affidavit to prove his allegations. Instead, he offered a convenient excuse—that he cannot anymore locate his secretary.

Respondent argued that it was the complainant who asked him to prepare Echavia’s Answer to the Amended Complaint, after reaching an agreement whereby Echavia would testify in favor of the complainant. After he declined the request, he claimed that it was the complainant who prepared the document and asked his secretary to print the same. But as shown, Echavia’s Answer to the Amended Complaint was in no way favorable to the complainant.

With the dismissal of Civil Case No. 13666, Echavia is practically off the hook. We cannot find any reason why Echavia would commit perjury and entangle himself, once again, with the law. He does not stand to profit at all by accusing the respondent falsely.

Furthermore, considering complainant’s stature and lack of legal education, we can not see how she could have prepared Echavia’s Answer to the Amended Complaint and device a legal maneuver as complicated as the present case.

Respondent’s attack on the credibility of Investigating Commissioner Ingles to render an impartial decision, having been an adversary in Civil Case No. R-33277, does not convince us to grant new trial. This is the first time that respondent questions the membership of Commissioner Ingles in the Investigating Committee. If respondent really believed in good faith that Commissioner Ingles would be biased and prejudiced, he should have asked for the latter’s inhibition at the first instance. Moreover, we could not find any hint of irregularity, bias or prejudice in the conduct of the investigation that would lead us to set it aside.

Finally, we remind the respondent that the practice of law is not a property right but a mere privilege, and as such, must bow to the inherent regulatory power of the Court to exact compliance with the lawyer’s public responsibilities.26 The suspension of the respondent’s privilege to practice law may result to financial woes. But as the guardian of the legal profession, we are constrained to balance this concern with the injury he caused to the very same profession he vowed to uphold with honesty and fairness.

IN VIEW WHEREOF, the Resolution of the IBP finding the respondent guilty of violating Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility is AFFIRMED. Respondent is suspended from the practice of law for six (6) months with a stern warning that a similar act in the future shall be dealt with more severely.

SO ORDERED.

Sandoval-Gutierrez** and Austria-Martinez, JJ., concur.

Davide, Jr. (C.J., Chairman), Kapunan and Ynares-Santiago, JJ., On official leave.

Respondent suspended for six (6) months from practice of law for violation of Canon 6, Code of Professional Ethics and Canon 15 and Rule 15.03, Code of Professional Responsibility, with stern warning against repetition of similar act.

Note.—By placing his personal interest above his client’s cause respondent clearly breached the trust reposed upon him. (Marquez vs. Meneses, Jr., 321 SCRA 1 [1999])

——o0o—— [Artezuela vs. Maderazo, 381 SCRA 419(2002)]

G.R. No. 160445. February 16, 2006.*

JOSE TEOFILO T. MERCADO and MA. AGNES R. MERCADO, petitioners, vs. SECURITY BANK CORPORATION, respondent.

Criminal Law; Contempt; Mercado’s addressing such letter to Chief Justice Davide is a perfect illustration of bad faith and malice tending directly to degrade the administration of justice.—Bad faith imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill-will for ulterior purposes. Malice is of the same genre. It connotes a sinister motive. Mercado’s addressing such letter to Chief Justice Davide is a perfect illustration of bad faith and malice tending directly to degrade the administration of justice. It transgresses the permissible bounds of fair comment and criticisms bringing into disrepute, not only the authority and integrity of Chief Justice Davide and the ponente, but also of the entire Judiciary. While feigning to be searching for truth on whether Chief Justice Davide indeed exerted “tremendous pressure” to the ponente, he repeatedly humiliated him and the Judiciary in the most loutish and insolent manner. He accused him of doing an “unthinkable, ungodly, and malicious” act and of depriving his (Mercado’s) family of their “basic fundamental rights in the protection of (their) property without due process.” He concluded that what Chief Justice Davide did to his family “is unforgivable not only to God and to humanity.” In an insulting and insolent tenor, he stated that “if the Chief Justice, himself, is the first person to make a mockery of our laws,” then there is “no wonder why foreign investors do not want to invest in our country.”

Same; Same; Without doubt, Mercado’s letter is marked with malice, bad faith and gross disrespect.—Without doubt, Mercado’s letter is marked with malice, bad faith, and gross disrespect. He committed a remarkable feat of character assassination and honor vilification. Contrary to his claim that he is just verifying the truth of Atty. Villanueva’s statements,

the words in his letter are more accusatory than inquisitorial. What is disconcerting is that his accusations have no basis in fact and in law. Obviously, they caused intense pain and humiliation on the part of Chief Justice Davide and the ponente.

Same; Same; A person charged with contempt of court for his utterances which clearly constitute contempt may not ordinarily escape liability by merely invoking the constitutional guaranty of freedom of speech.—A person charged with contempt of court for his utterances which clearly constitute contempt may not ordinarily escape liability by merely invoking the constitutional guaranty of freedom of speech. Liberty of speech must not be confused with abuse of such liberty. When he attributed those contemptuous remarks to Chief Justice Davide and the ponente, Mercado abused such liberty. His statements cast aspersions to their reputation and integrity and create a distrust to the Judiciary.

Same; Same; Letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire court; Mercado held guilty of indirect contempt.—The fact that Mercado’s letter was addressed only to the Chief Justice does not rinse it of its contemptuous character. In In Re Laureta, 148 SCRA 382 (1987), we ruled that letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire court. Accordingly, we hold Mercado guilty of indirect contempt of court.

Same; Same; Attorneys; Court has repeatedly admonished lawyers from making bold assurances to their clients; Responsibility enjoins lawyers to observe and maintain the respect due to courts and the judicial officers; Court finds Atty. Villanueva also guilty of indirect contempt of court.—We have repeatedly admonished lawyers from making bold assurances to their clients. A lawyer who guarantees the successful outcome of a litigation will exert heavy pressure and employ any means to win the case at all costs. But when the case is lost, he will blame the courts, placing them under a cloud of suspicion. As what happened in this case, Atty. Villanueva’s statements led Mercado, not only to suspect but also to believe, that the entire Court, together with Chief Justice Davide and the ponente, could be pressured or influenced. Responsibility enjoins lawyers to observe and maintain the respect due to courts and the judicial officers. Atty. Villanueva’s conduct, no doubt, degraded the integrity and dignity of Chief Justice Davide and the ponente and this Court as well. Thus, we find Atty. Villanueva also guilty of indirect contempt of court.

Remedial Law; Annulment of Judgment; An action for annul-ment of judgment cannot and is not a substitute for the lost remedy of appeal; A party must have first availed of appeal, a motion for new trial or a petition for relief before an action for annulment can prosper; Grounds for Annulment of Judgment.—The Resolution of the Third Division of this Court dated September 15, 2004 denying Mercado’s motion for reconsideration is well explained. A principle almost repeated to satiety is that “an action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal.” A party must have first availed of appeal, a motion for new trial or a petition for relief before an action for annulment can prosper. Its obvious rationale is to prevent the party from benefiting from his inaction or negligence. Also, the action for annulment of judgment must be based either on (a) extrinsic fraud or (b) lack of jurisdiction or denial of due process. Having failed to avail of the remedies and there being a clear showing that neither of the grounds was present, the petition must be dismissed. Only a disgruntled litigant would find such legal disposition unacceptable.

Same; Same; The reinstatement of a petition does not guarantee that it will be subsequently granted.—The Third Division initially denied Mercado’s petition because it is apparent on its face that the Court of Appeals committed no reversible error in dismissing his petition for annulment of judgment. Considering his motion for reconsideration alleging that the Appellate Court merely relied on technical rules of procedure and that his former counsel committed gross negligence, the Third Division took the most prudent course by reinstating the petition. Now, after considering the petition and the comment thereon, the Third Division was convinced that, indeed, the Appellate Court did not commit any reversible error. Is this irregular? The answer is a resounding “no.” The reinstatement of a petition does not guarantee that it will be subsequently granted. Otherwise, the filing of comment and subsequent pleadings would be an exercise in futility.

SPECIAL CIVIL ACTION in the Supreme Court. Contempt.

The facts are stated in the resolution of the Court.

Pablo Garcia Macapagal for petitioner.

R E S O L U T I O N

SANDOVAL-GUTIERREZ, J.:

The dignity of the Court can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith that a magistrate is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect.1

Incidental to the present petition for review on certiorari is the contempt proceedings against petitioner Jose Teofilo T. Mercado arising from his letter dated October 18, 2004, insinuating that: (1) the ponente succumbed to the “tremendous pressure” of Chief Justice Hilario G. Davide, Jr. in denying his petition; (2) the Security Bank Corporation, respondent, financed the ponente’s travel to the United States; and (3) the ponente gave respondent a “go signal” to sell his property.

The facts are as follows:

On December 12, 2003, Jose Teofilo T. Mercado and Ma. Agnes R. Mercado, petitioners, filed with this Court a Petition for Review on Certiorari assailing the Court of Appeals (a) Decision2 dated May 27, 2003 in CA-G.R. SP No. 71570 dismissing their petition for annulment of judgment; and (b) its Resolution3 dated October 23, 2003 denying their motion for reconsideration.

On January 12, 2004, we denied the petition because of petitioners’ failure to show that a reversible error had been committed by the Appellate Court.4

Petitioners filed a motion for reconsideration alleging that the Court of Appeals, in dismissing their petition for annulment of judgment, merely relied on technical rules of procedure, thereby sacrificing the greater interest of justice and equity; and that their former counsel’s gross negligence constitutes extrinsic fraud, a ground for annulling the trial court’s judgment.

On March 24, 2004, we issued a Resolution granting petitioners’ motion for reconsideration and reinstating their petition. We likewise required Security Bank Corporation, respondent, to comment on the petition.

In its comment, respondent averred that the issues raised in the present petition are mere rehash of the issues petitioners raised before the Appellate Court. As to the alleged negligence of their counsel, respondent pointed out that the same cannot be considered an extrinsic fraud since through the same counsel, they actively pursued and recovered moral damages and attorney’s fees. Furthermore, assuming that petitioners’ counsel refused to file a motion for reconsideration with the trial court, still, they had the option to terminate his services and hire another; and that they should not have waited for four (4) years before filing the petition for annulment of judgment.

On June 7, 2004, we issued a Resolution denying the petition on the ground that petitioners indeed failed to show that a reversible error had been committed by the Appellate Court. Petitioners filed a motion for reconsideration, but we dismissed the same in our Resolution dated September 15, 2004, thus:

“We find no compelling reason to grant petitioner’s motion for reconsideration.

The Court of Appeals was correct in holding that before a petition for annulment of judgment can prosper, petitioners must first file an appeal, a motion for new trial or a petition for relief as required by the Revised Rules of Court. Having failed to do so, they cannot avail of an action for annulment of judgment, otherwise, they would benefit from their inaction or negligence.

It bears emphasis at this point that an action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal.

Petitioners’ contention that their failure to appeal from the trial court’s Decision was due to the negligence of their former counsel lacks merit. Records show that they participated actively, through their counsel, in the proceedings before the trial court. As party litigants, they were expected to be vigilant of their interests and, therefore, should monitor the progress of the case. Thus, they should have constantly communicated with their counsel to be advised of the status of their case. This way, they would not have lost their opportunity to appeal.

Granting that petitioners’ petition for annulment of judgment is in order, still the same is dismissible. For the remedy of annulment of judgment to prosper, either one of the following grounds must be present: (1) extrinsic fraud or (2) lack of jurisdiction or denial of due process. Petitioner argues that their counsel’s negligence constitutes extrinsic fraud. We are not convinced. Extrinsic fraud can be committed by a counsel against his client when the latter is prevented from presenting his case to the court. This situation is not present in this case.

We reiterate that in G.R. No. 151816, we ruled that the Court of Appeals did not commit reversible error in dismissing petitioners’ petition for certiorari and prohibition assailing the trial court’s order of execution of its Decision in favor of respondent bank.

In fine, this Resolution should now write finis to the instant case.”5

Petitioners filed a second motion for reconsideration but was denied for being prohibited.

On October 18, 2004, petitioner Mercado wrote Chief Justice Hilario G. Davide, Jr. stating that:

“On March 24, 2004, the Third Division, in its Resolution, granted our Motion for Reconsideration and even gave due course and reinstated our petition.

But when I received the Resolution dated June 7, 2004 denying my Petition for Review on July 12, 2004, I immediately called my counsel, Atty. Jose P. Villanueva, on the phone. I asked him why on earth the ponente denied again my petition on the same ground ‘for failure of petitioners to show that a reversible error had been committed by the appellate court? My counsel said, the ponente informed him that she has to deny our petition on the same ground because of the tremendous pressure from the Chief Justice to favor Security Bank Corporation (SBC). By the way, my counsel and the ponente are very close and long time friends to each other. When I heard the bad news, I was so shocked in disbelief.

It is true, what you did is unthinkable, ungodly, and malicious. It is also very suspicious that after a few days after my conversation with Atty. Villanueva, he and his family left for London, leaving my case to the care of one of his Associates. Later on, the ponente herself left for the U.S.A. to visit her children. Is this a coincidence? As the saying goes, ‘when there is smoke, there is fire.’ Another coincidence, before the receipt of the Resolution dated June 7, 2004, denying our petition on the basis of SBC’s unsubstantiated ‘Comment,’ SBC sold our property to M. Miranda Development Corporation and succeeded in getting a permit to demolish the four (4) building erected in our property from the Forbes Park Association, even if the case is still pending and we have not even filed our Motion for Reconsideration with the Supreme Court, not to mention the Lis Pendens annotated on the title of the property in the name of SBC. The person who bought our property from SBC for P120,000,000.00 is known to my nephew and us. While the buyer is drinking with my nephew and others, not knowing that one of them is my nephew, he bragged to them that he just bought the property of the Mercados in Forbes Park. The buyer said ‘I paid already the property because SBC told me that they already have the go-signal from the ponente to sell the property.’ Few days thereafter, all the improvements in our property were totally demolished by a construction company owned by my provincemate in Pampanga by the name of Mr. Bana, whom I personally met at the site while the demolition was being carried out.

Have you no conscience at all? Are you not bothered of the final judgment after life? Is this the legacy you want to impart to your children and all the Filipino people? What you did to my family and I is unforgivable not only to God and to humanity. You have deprived us of our precious possession without due process. This is also the abode of my wife, my children, their respective spouses, and my 10 grandchildren, not to mention the several household members and their families.

I would like to believe that the Supreme Court is the last bulwark of true justice. If you, the Chief Justice, himself, are the first person to make a mockery of our laws, no wonder why foreign investors do not want to invest in our country because they said, there is no justice in our courts, the Supreme

Court in particular. This is in the highest degree of injustice. You have deprived us of our basic fundamental rights in the protection of our property without due process. There is no justice in our courts, the Supreme Court in particular. Do you think I will bring my case to the Supreme Court by mere question of facts? From our petition for Annulment of Judgment filed before the Court of Appeals and now the Petition for Review on Certiorari with the Supreme Court, my wife and I as petitioners-movants have clearly invoked ‘LACK OF JURISDICTION’ on the part of the trial court to adjudicate respondent SBC’s ‘counterclaim’ for the payment of the loan. As I understand, when the ground invoked as basis for Annulment of Judgment is ‘LACK OF JURISDICTION,’ the Petition may be filed at any time before it is barred by estoppel or laches, neither of which is obtaining in our case. Even in layman’s legal point of view, this Petition of ours clearly and undoubtedly raises a question of law.

Please I beg of you, have a last hard look on our Petition and the two (2) Motions for Reconsideration and let us focus and not evade on the real issue on ‘LACK OF JURISDICTION’ on the part of the trial court and not concentrate on negligence of counsel and other trivial reasons, etc. Or better yet, please refrain from influencing the members of the Third Division. Let them deliberate regularly on our case or inhibit themselves on the case. Please let the Institution serve justice, and not individual pecuniary interests. SBC’s counsels are experts in fabrication of facts and in misleading the courts. I have a feeling that they might as well have led you to believe something, which is not true. Please don’t be an instrument of their wicked schemes, lest the Supreme Court itself becomes their means to perpetrate injustice. This is the only Bank which is not interested in amicable settlement in spite of my several sincere offers of amicable settlement since the case was filed in 1995 up to 2003, and these are all in writing and duly received by SBC. Unfortunately, all my offers were rejected by them.

I wrote you this letter as a last resort because my family and I looked up at you before as the most honest and upright Chief Justice. As we would like to know if you really had intervened and put pressure, as the Ponente said to Atty. Villanueva, (my counsel) to favor SBC because if you did, then we rest our case. Please enlighten us before we seek another forum to seek redress the injustices, sleepless nights, humiliation and embarrassment we suffered. If we are wrong about you, and I hope we really are wrong, please accept our appeal for forgiveness and apologies. GOD is my witness, that what I have told you is the truth. Mr. Chief Justice, the Filipino people know how religious you are. Please do what a religious man ought to do in serving justice. Please live up to our, as well as HIS expectations.” (Emphasis supplied)

On November 2, 2004, Chief Justice Davide required Mercado’s lawyer, Atty. Jose P. Villanueva, to comment on the letter and show cause why he should not be held in contempt of court.6

On November 17, 2004, the Court’s Third Division ordered Mercado to personally appear on November 22, 2004 and show cause why he should not be held in contempt of court.7

On the scheduled date, Mercado, together with Atty. Pablo G. Macapagal, his new counsel, appeared before the Third Division and swore to the truth of the letter he wrote.8 He manifested that he only stated therein what Atty. Villanueva told him—that his petition was denied for the second time “because of the tremendous pressure from the Chief Justice.” He further manifested that during the wake of Atty. Villanueva’s mother, he (Atty. Villanueva) pointed to Justice Angelina Sandoval-Gutierrez, bragging that she is “a very very good, close and long time friend of his.”9 However, while stating this, Mercado referred to Justice Conchita Carpio Morales as Justice Gutierrez.10

Forthwith, the Third Division issued in open court a Resolution11 directing Atty. Macapagal to submit a written explanation why Mercado should not be held in contempt of Court.

For his part, Atty. Villanueva submitted a comment,12 strongly denying Mercado’s allegations in his letter. He denied having told petitioners that their petition had to be denied again “because there was a tremendous pressure from the Chief Justice in favor of Security Bank Corporation.” He also stressed that there was no correlation between the ponente’s trip to the United States and his trip to London. He explained that he and his family went to London to attend the graduation of his daughter, Cherriemaya Veloso Villanueva. To substantiate this, he submitted a photocopy of “London School of Economics (LSE) and Political Science Presentation Ceremonies” where the name of his daughter, Cherriemaya Veloso Villanueva, is listed as one of the successful graduates. He likewise submitted a photocopy of his passport indicating his departure for London on July 14, 2004

and his arrival in the Philippines on July 27, 2004. In addition, he said he never met anyone from respondent bank, including its lawyers, and that there is no truth to Mercado’s statement regarding his nephew’s alleged encounter with the new owners of the subject property.

On December 13, 2004, Mercado submitted his explanation13 why he should not be punished for contempt of court. He claimed that the contemptuous statements in his letter merely reiterate the tenor of Atty. Villanueva’s statements. He offered an apology, explaining that he wrote the letter while he was “under the impulse of personal stress” as he was losing his residential house.

On January 26, 2005, the Third Division ordered both Mercado and Atty. Villanueva to appear on February 21, 2005 to elucidate their respective positions.

Mercado testified that it was Atty. Villanueva who informed him that the ponente is Justice Gutierrez. Atty. Villanueva even bragged that she is his “very, very close friend.”

For his part, Atty. Villanueva testified that it was Mercado who informed him that Justice Gutierrez is the ponente. He also confirmed that she attended the wake of his mother. But he denied Mercado’s claim that he pointed to Justice Gutierrez and said that she is his close friend.14

Thereafter, the Third Division designated Court of Appeals Justice Renato C. Dacudao as Commissioner to receive evidence on the factual issues involved in the contempt incident.15

On May 18, 2005, Justice Dacudao submitted his Investigation, Report and Recommendation. He found Mercado “guilty of improper conduct tending to bring the authority and the administration of justice by the Court into disrespect when he openly belittled, degraded, and embarrassed the Highest Court of the land, particularly the Chief Justice x x x.” However, he held that “there was no showing that he acted with malice and/or in bad faith or that he was properly motivated.” Thus, he recommended that Mercado be fined in the sum of five thousand pesos (P5,000.00).

We cannot sustain Justice Dacudao’s finding that Mercado did not act with malice or bad faith in imputing those derogatory and disrespectful remarks against Chief Justice Davide and the ponente.

Bad faith imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong.16 It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill-will for ulterior purposes.17

Malice is of the same genre. It connotes a sinister motive. Mercado’s addressing such letter to Chief Justice Davide is a perfect illustration of bad faith and malice tending directly to degrade the administration of justice. It transgresses the permissible bounds of fair comment and criticisms bringing into disrepute, not only the authority and integrity of Chief Justice Davide and the ponente, but also of the entire Judiciary. While feigning to be searching for truth on whether Chief Justice Davide indeed exerted “tremendous pressure” to the ponente, he repeatedly humiliated him and the Judiciary in the most loutish and insolent manner. He accused him of doing an “unthinkable, ungodly, and malicious” act and of depriving his (Mercado’s) family of their “basic fundamental rights in the protection of (their) property without due process.” He concluded that what Chief Justice Davide did to his family “is unforgivable not only to God and to humanity.” In an insulting and insolent tenor, he stated that “if the Chief Justice, himself, is the first person to make a mockery of our laws,” then there is “no wonder why foreign investors do not want to invest in our country.”

Furthermore, he alleged that an irregularity or bribery attended the denial of his petition for review. He insinuated that the travels of Atty. Villanueva and the ponente abroad were financed by respondent bank, stating that “when there is smoke, there is fire.” He also recklessly accused the ponente of giving respondent bank a “go-signal” to sell his property. In this backdrop, he asked Chief Justice Davide to “refrain from influencing the members of the Third Division”; “let them deliberate regularly on the case or inhibit themselves on the case”; and “let the Institution serve justice, and not individual pecuniary interests.”

Finally, he condemned the entire Judiciary by saying “there is no justice in our courts, the Supreme Court in particular.” And with impudence, he threatened Chief Justice Davide to enlighten him before he “seeks another forum to seek redress for the injustices, sleepless nights, humiliation and embarrassment” his family suffered.

Without doubt, Mercado’s letter is marked with malice, bad faith, and gross disrespect. He committed a remarkable feat of character assassination and honor vilification. Contrary to his claim that he is just verifying the truth of Atty. Villanueva’s statements, the words in his letter are more accusa-tory than inquisitorial. What is disconcerting is that his accusations have no basis in fact and in law. Obviously, they caused intense pain and humiliation on the part of Chief Justice Davide and the ponente.

The Resolution of the Third Division of this Court dated September 15, 2004 denying Mercado’s motion for reconsideration is well explained. A principle almost repeated to satiety is that “an action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal.” A party must have first availed of appeal, a motion for new trial or a petition for relief before an action for annulment can prosper. Its obvious rationale is to prevent the party from benefiting from his inaction or negligence. Also, the action for annulment of judgment must be based either on (a) extrinsic fraud or (b) lack of jurisdiction or denial of due process.18 Having failed to avail of the remedies and there being a clear showing that neither of the grounds was present, the petition must be dismissed. Only a disgruntled litigant would find such legal disposition unacceptable.

Mercado bewails the denial by the Third Division of his petition through a mere Minute Resolution and after reinstating the petition. Apparently, he finds the Court’s manner of denial and change of heart unusual and casts sinister undertone to them.

In In Re Laureta,19 we ruled that the Court is not “duty-bound” to render signed decisions all the time. It has ample discretion to formulate decisions and/or minute resolutions, provided a legal basis is given depending on its evaluation of a case. In the same case, we held that “the recall of a due course Order after a review of the records of the case is a common occurrence in the Court.” Like the respondents in the said case, Mercado should not think that it is only his petition which has been subjected to such recall.

The Third Division initially denied Mercado’s petition because it is apparent on its face that the Court of Appeals committed no reversible error in dismissing his petition for annulment of judgment. Considering his motion for reconsideration alleging that the Appellate Court merely relied on technical rules of procedure and that his former counsel committed gross negligence, the Third Division took the most prudent course by reinstating the petition. Now, after considering the petition and the comment thereon, the Third Division was convinced that, indeed, the Appellate Court did not commit any reversible error. Is this irregular? The answer is a resounding “no.” The reinstatement of a petition does not guarantee that it will be subsequently granted. Otherwise, the filing of comment and subsequent pleadings would be an exercise in futility.

Now, in a bid to escape liability for contempt, Mercado invokes freedom of speech and privacy of communication.

We are not persuaded.

A person charged with contempt of court for his utterances which clearly constitute contempt may not ordinarily escape liability by merely invoking the constitutional guaranty of freedom of speech. Liberty of speech must not be confused with abuse of such liberty. When he attributed those contemptuous remarks to Chief Justice Davide and the ponente, Mercado abused such liberty. His statements cast aspersions to their reputation and integrity and create a distrust to the Judiciary.

The fact that Mercado’s letter was addressed only to the Chief Justice does not rinse it of its contemptuous character. In In Re Laureta,20 we ruled that letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire court.

Accordingly, we hold Mercado guilty of indirect contempt of court.

Section 3, Rule 71 of the 1997 Rules of Civil Procedure, as amended, provides:

Section 3. Indirect contempt to be punished after charge and hearing.—After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

x x x x x x

d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

x x x x x x

As for Atty. Villanueva, while Justice Dacudao did not categorically state that he (Atty. Villanueva) told Mercado that Chief Justice Davide exerted “tremendous pressure” on the ponente, the reason why the petition was dismissed for the second time, however, we are inclined to believe that Atty.Villanueva gave such information to Mercado. Not only that, Atty. Villanueva also revealed the name of the ponente; that he and the ponente have known each other since 1964; and that the ponente would be at the wake of his mother, thus:

After a careful and conscientious examination of the evidence adduced in the instant case, the undersigned investigator is fully convinced that it was only through Atty. Villanueva that petitioner could have learned or known the name of the ponente in the case.

As between petitioner and Atty. Villanueva, the undersigned investigator is inclined to give more credence to the testimony of petitioner. Not only was petitioner consistent, firm, and candid and detailed in his testimony, but he was also able to corroborate his claims, by submitting his diary which contained vital entries and by presenting the testimony of his nephew. x x x

Moreover, it was admitted by Atty. Villanueva that he and Justice Gutierrez have known each other since 1964 and that Justice Gutierrez was in the wake of his mother. These admissions tend to strengthen the allegations of petitioner that Atty. Villanueva was the one who told him the name of the ponente; that Atty. Villanueva told him that he and the ponente are very close; and that when petitioner attended the wake of Atty. Villanueva’s mother, he was told by Atty. Villanueva that Justice Gutierrez, the ponente, was coming.

Rule 15.06 of Canon 15 of the Code of Professional Responsibility states that “a lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.” Further, Rule 15.07 provides that “a lawyer must impress upon his client compliance with the laws and the principles of fairness.” Atty. Villanueva took the forbidden course. In informing Mercado that he was “a very very good, close and long time friend” of the ponente, Atty. Villanueva impressed upon the former that he can obtain a favorable disposition of his case. However, when his petition was dismissed twice, Mercado’s expectation crumbled. This prompted him to hurl unfounded, malicious, and disrespectful accusations against Chief Justice Davide and the ponente.

We have repeatedly admonished lawyers from making bold assurances to their clients. A lawyer who guarantees the successful outcome of a litigation will exert heavy pressure and employ any means to win the case at all costs. But when the case is lost, he will blame the courts, placing them under a cloud of suspicion. As what happened in this case, Atty. Villanueva’s statements led Mercado, not only to suspect but also to believe, that the entire Court, together with Chief Justice Davide and the ponente, could be pressured or influenced.

Responsibility enjoins lawyers to observe and maintain the respect due to courts and the judicial officers.21 Atty. Villanueva’s conduct, no doubt, degraded the integrity and dignity of Chief Justice Davide and the ponente and this Court as well.

Thus, we find Atty. Villanueva also guilty of indirect contempt of court.

On the appropriate penalty, the general rule is that courts have inherent power to impose a penalty for contempt reasonably commensurate with the gravity of the offense. And that the degree of punishment for contempt is said to lie within the sound discretion of the court.22 Considering the circumstances obtaining herein, we believe that Mercado and Atty. Villanueva should be fined P50,000.00 each and warned that a repetition of similar acts will warrant a more severe penalty.

One last word. The reason for the inherent power of courts to punish for contempt is that respect for the courts guarantees the stability of the judicial institution. Without such guarantee, the institution would be resting on a very shaky foundation.23 Thus, we must act to preserve its honor and integrity from assaults of disrespect. One reason why respect of the public for the Judiciary has diminished is because of unscrupulous lawyers who imply that judges and justices can be influenced or bribed. Such conduct has no place in the legal profession.

WHEREFORE, Jose Teofilo T. Mercado and Atty. Jose P. Villanueva are declared GUILTY of indirect contempt of court. They are FINED P50,000.00 each and WARNED that a repetition of similar acts will warrant a more severe penalty. Let a copy of this Resolution be attached to Atty. Villanueva’s personal record in the Office of the Bar Confidant and copies thereof be furnished the Integrated Bar of the Philippines.

SO ORDERED.

Panganiban (C.J.), Puno, Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio, Carpio-Morales, Azcuna, ChicoNazario, Tinga and Garcia, JJ., concur.

Corona and Callejo, Sr., JJ., On Leave.

Jose Teofilo T. Mercado and Atty. Jose P. Villanueva meted with P50,000.00 fine each for indirect contempt and both warned against repetition of similar acts.

Note.—The salutary rule is that the power to punish for contempt must be exercised on the preservative not vindictive principle and on the corrective and not retaliatory idea of punishment. (Oclarit vs. Paderanga, 350 SCRA 260 [2001])

——o0o—— [Mercado vs. Security Bank Corporation, 482 SCRA 501(2006)