ISIDRA VDA. DE VICTORIA v. COURT OF APPEALS, et al.

467 SCRA 78 (2005)

Every lawyer pledges to act with “candor, fairness and good faith to the court.

The Supreme Court granted petitioner Mario Victoria (Victoria) an extended periodto file the petition, conditioned, however, on the timeliness of the filing of the Motion for Extension of Time to File Petition for Review on Certiorari. It is a basic rule of remedial law that a motion for extension of time must be filed before the expiration of the period sought to be extended. Where a motion for extension of time is filed beyond the period of appeal, the same is of no effect since there would no longer be any period to extend, and the judgment or order to be appealed from the will have become final and executory.

In the case at bar, an examination of the records reveals that the reglementary period to appeal had in fact expired almost 10 months prior to the filing of Victoria’s motion for extension of time on April 10, 2001. The Registry Return Receipt of the Resolution of the Court of Appeals (CA) dismissing the CA Certiorari Petition shows that the same was received by counsel for Victoria’s agent on June 5, 2000. Hence, Victoria had only until June 20, 2000 within which to file an appeal or motion for new trial or reconsideration.

In the same Decision, the Court noted that Victoria, with the aid of his counsel, Atty. Abdul Basar (Atty. Basar), made misleading statements in his Motion for Extension of Time to File Petition for Review on Certiorari and in his subsequent Petition respecting the timeliness of his appeal and the status of the Resolutions of the CA.

Consequently, the SC ordered Victoria and Atty. Basar, to show cause, within 10 days from receipt of the Decision, why they should not be held in contempt of court and disciplinarily dealt with for violation of Canon 10 of the Code of Professional Responsibility.

ISSUES:

Whether or not Atty. Basar can be held liable in contempt of court and for misconduct

HELD:

As part of his or her oath, every lawyer pledges to act with ―candor, fairness and good faith to thecourt.‖ Thus, a lawyer is honor bound to act with the highest standards of truthfulness, fair play and nobility in the conduct of litigation and in his relations with his client, the opposing part and his counsel, and the court before which he pleads his client’s cause.

Moreover, the Code of Professional Responsibility obligates lawyers to ―observe the rules of procedure and not misuse them to defeat the ends of justice.‖

It is, therefore, lamentable that Atty. Basar, by misrepresenting the timeliness of an appeal from afinal and executor Resolution of the Court of Appeals, chose to disregard the fundamental tenets of the legal profession. In fact, from his explanation, he was well aware that the reglementary period for appeal from the Decision of the RTC had already lapsed, but he nevertheless persisted infiling a petition for review on certiorari.

Allied banking vs. ca

ALLIED BANKING CORPORATION

vs

. CA and POTENCIANO L.GALANIDAG.R. No. 144412November 18, 2003

Carpio, J.

Facts:Private respondent is an employee of petitioner, hired as anaccountant-bookkeeper and eventually promoted as an assistantmanager which included his transfer to several branches ninetimes. His appointment was covered by a “Notice of PersonnelAction” which provides as one of the conditions of employment theprovision on petitioner’s right to transfer employees on as a regularappointment as the need arises in the interest of maintaining smoothand uninterrupted service to the public.Effecting a rotation/movement of officers assigned inthe Cebu homebase, petitioner listed respondent as second in theorder of priority of assistant managers to be assigned outside of Cebu City. However, private respondent refused to be transferredto Bacolod City in a letter by reason of parental obligations, expenses,and the anguish that would result if he is away from his family. Hethereafter filed a complaint before the Labor Arbiter for constructivedismissal.Subsequently, petitioner informed private respondent that hewas to report tothe Tagbilaran City Branch, however, privaterespondent again refused. As a result, petitioner warned and requiredhim to follow the said orders; otherwise, he shall be penalized underthe company’s discipline policy. Furthermore, private respondent wasrequired to explain and defend himself. The latter replied stating thatwhether he be suspended or dismissed, it would all the moreestablish and fortify his complaint pending before the NLRC andfurther charges petitioner with discrimination and favoritism inordering his transfer. He further alleges that the management’sdiscriminatory act of transferring only the long staying accountants of Cebu in the guise of its exercise of management prerogative when intruth and in fact, the ulterior motive is to accommodate some newofficers who happen to enjoy favorable connection with management.As a result, petitioner, through a Memo, informed privaterespondent that Allied Bank is terminating him.The reasons given forthe dismissal were: (1) continued refusal to be transferred from the Jakosalem, Cebu City branch; and (2) his refusal to report for workdespite the denial of his

application for additional vacation leave. The Labor Arbiter held that petitioner had abused itsmanagement prerogative in ordering private respondent’s transferand the refusal by the latter did not amount to insubordination. TheNLRC likewise ruled that: (1) petitioner terminated the privaterespondent without just cause considering family considerations; (2)the transfer is a demotion since the Bacolod and Tagbilaran brancheswere smaller than the Jakosalem branch, a regional office, andbecause the bank wanted him, an assistant manager, to replace anassistant accountant in the Tagbilaran branch; (3) the terminationwas illegal for lack of due process as no hearing appears to have beenconducted and that petitioner failed to send a termination notice andinstead issued a Memo merely stating a notice of termination wouldbe issued, but petitioner did not issue any notice; and (4) petitionerdismissed private respondent in bad faith, tantamount to an unfairlabor practice as the dismissal undermined the latter’s right tosecurity of tenure and equal protection of the laws. The ruling of NLRC was later affirmed by the Court of Appeals.

Preliminary Matter: Misquoting Decisions of the Supreme Court

The memorandum prepared by Atty. Durano and, worse, the assailed Decision of the Labor Arbiter, both misquoted the Supreme Court’s ruling in Dosch v. NLRC. The Court held inDosch:

We cannot agree to Northwest’s submission that petitioner was guilty of disobedience and insubordination which respondent Commission sustained. The only piece of evidence on which Northwest bases the charge of contumacious refusal is petitioner’s letter dated August 28, 1975 toR.C. Jenkins wherein petitioner acknowledged receipt of the former’s memorandum dated August 18, 1975, appreciated his promotion to Director of International Sales but at the same time regretted “that at this time for personal reasons and reasons of my family, I am unable to accept the transfer from the Philippines” and thereafter expressed his preference to remain in his position, saying: “I would, therefore, prefer to remain in my position of Manager-Philippines until such time that my services in that capacity are no longer required by Northwest Airlines.” From this evidence, We cannot discern even the slightest hint of defiance, much less imply insubordination on the part of petitioner.[19]

The phrase “[r]efusal to obey a transfer order cannot be considered insubordination where employee cited reason for said refusal, such as that of being away from the family” does not appearanywhere in the Dosch decision. Galanida’s counsel lifted the erroneous phrase from one of the italicized lines in the syllabus of Dosch found in the Supreme Court Reports Annotated (“SCRA”).

The syllabus of cases in official or unofficial reports of Supreme Court decisions or resolutions is not the work of the Court, nor does it state this Court’s decision. The syllabus is simply the work of the reporter who gives his understanding of the decision. The reporter writes the syllabus for the convenience of lawyers in reading the reports. A syllabus is not a part of the court’s decision.[20] A

counsel should not cite a syllabus in place of the carefully considered text in the decision of the Court.

In the present case, Labor Arbiter Almirante and Atty. Durano began by quoting from Dosch, but substituted a portion of the decision with a headnote from the SCRA syllabus, which they even underscored. In short, they deliberately made the quote from the SCRA syllabus appear as the words of the Supreme Court. We admonish them for what is at the least patent carelessness, if not an outright attempt to mislead the parties and the courts taking cognizance of this case. Rule 10.02, Canon 10 of the Code of Professional Responsibility mandates that a lawyer shall not knowingly misquote or misrepresent the text of a decision or authority. It is the duty of all officers of the court to cite the rulings and decisions of the Supreme Court accurately.[21]

sansu mining company vs. amado 24 scra 400

ROSALINA BIASCAN, complainant, vs. ATTY. MARCIAL F. LOPEZ, respondent.

R E S O L U T I O N

QUISUMBING, J.:

This administrative case stems from a verified complaint[1] for disbarment, filed on October 4, 1996, by complainant Rosalina Biascan against respondent Atty. Marcial F. Lopez for alleged fraud or misrepresentation, breach of his duty as an officer of the court, and betrayal of his oath as a lawyer amounting to gross misconduct, which renders him unfit to continue in the practice of law.

Subject of the complaint is a 600-square meter lot located between Constancia and Miguelin Streets in Sampaloc, Manila. Said property was originally covered by Transfer Certificate of Title (TCT) No. 34127 in the name of Florencio Biascan. The latter died intestate, leaving behind two parcels namely: the lot in Sampaloc, Manila, and another parcel in Novaliches, Quezon City, covered by TCT No. 87068.

In her complaint, Rosalina Biascan avers that she is the court-appointed administratrix of the estate of her deceased father, Florencio Biascan. That estate is the subject of Special ProceedingsNo. 98037 entitled “In the Matter of the Intestate Estate of the Deceased Timotea Zulueta and Florencio Biascan,” pending before the Regional Trial Court (RTC) of Manila, Branch 4. Pursuant to her appointment, she filed her Inventory and Appraisal[2] Report sometime in November 1975.

In August 1977, respondent entered his appearance in the intestate proceedings as counsel for an oppositor, Maria Manuel Biascan (now deceased).[3]

In an Order[4] dated April 2, 1981, the RTC declared complainant and her brother, German Biascan,heirs of the late Florencio. Maria Manuel Biascan then filed a Motion for Reconsideration[5] on June 6, 1981, but the trial court denied said motion on April 30, 1985.[6] Meanwhile, in complete disregard of the intestate proceedings and without knowledge and approval of the lower court or complainant and her brother, Maria Manuel Biascan executed an Affidavit of Self-Adjudication[7] on June 20, 1983 where she falsely represented herself as the sole heir of the lateFlorencio Biascan. On July 12, 1983, she then presented the Affidavit of Self-Adjudication to the Register of Deeds of Manila, as a result of which TCT No. 34127 was cancelled and TCT No. 155384issued in her name.

Complainant further averred that on July 24, 1990, without the approval of the intestate court and taking advantage of the aforementioned fraud, respondent Lopez registered with the Register of Deeds a Deed of Assignment,[8] dated December 22, 1977, which Maria Manuel Biascan had executed in his favor. In that deed, Maria Manuel Biascan ceded to respondent 210 square meters of the 600-square meter land now covered by TCT No. 155384. Thereafter, the Register of Deeds of Manila issued TCT No. 193790 covering the ceded 210 square meters in respondent’s name.[9]

On June 15, 1992, respondent sold the 210-square meter lot covered by TCT No. 193790 to the Spouses Danilo and Corazon Arganoza in whose favor TCT No. 208601 was issued.[10]

According to complainant, all the foregoing transfers occurred while Special Proceedings No. 98037was still pending, but she discovered the transfers only in February 1993 after inquiries on her behalf were made with the Registries of Deeds of Manila and Caloocan. [11] Suits for the recovery of the properties are pending with the Regional Trial Courts of Manila and Caloocan.[12]

In his Comment/Answer[13] filed on November 17, 1998, respondent Lopez denies committing any fraud, misconduct, or breach of duty to the court, and asserts he acted in good faith. According to him, what complainant Rosalina Biascan reported in her Inventory and Appraisal report was a parcel of land covered by TCT No. 24127 and not the Sampaloc property covered by TCT No. 34127. Also, his acquisition of subject property and the resulting issuance of TCT No. 193790 in his name was valid because the land was payment for his legal services under a valid contingent fee contract. Respondent claims that Maria Manuel Biascan offered to pay him 35% of the area of TCTNo. 155384 for his legal services. Since there was no notice of lis pendens on TCT No. 155384, he accepted the offer and the Deed of Assignment was executed between them.[14]

Respondent further asserts that complainant is guilty of laches, as she failed to act swiftly to protect her alleged interest over the subject property. He points out that from June 2, 1975, the date complainant filed the petition for settlement and administration of the intestate estate of Florencio Biascan, up to May 28, 1983 or for approximately eight (8) years, complainant failed to assert her rights as owner of the property by either registering a claim to the subject property or filing a case for recovery thereof.

Finally, respondent prayed for the suspension of the instant administrative case on the ground that the recovery suits pending before the RTCs of Manila and Caloocan raise issues that must first be resolved before the instant complaint can proceed; otherwise, there might be conflicting findings between said lower courts and this Court.

In our Resolution[15] of March 1, 1999, we referred the instant complaint to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.

On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-394, the full text of which reads as follows:

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 ofthis Resolution/Decision as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that it has been established that respondent committed acts of misconduct which have caused damage and prejudice to complainant and her brother, respondent is hereby SUSPENDED from the practice of law for three(3) years.[16]

This Resolution is now before this Court for confirmation.

At the outset, we note that there appears to be some confusion between the parties on whether the original TCT covering the property in question was TCT No. 24127 or TCT No. 34127. Resort tothe records show, however, that both parties are in fact referring to the lot located between Constancia and Miguelin Streets in Sampaloc, Manila.

On the issue of respondent’s liability, this Court agrees with the findings of the IBP Board of Governors.

It is clear from the records that when respondent entered his appearance in Special Proceedings No. 98037 as counsel for Maria Manuel Biascan in August 1977, complainant had already filed her Inventory and Appraisal Report dated November 22, 1975, which listed the realty covered by TCT No. 34127, as one of the properties forming part of the Estate of Florencio Biascan. As counsel foran oppositor, respondent must have gone over the records of Special Proceedings No. 98037, which included the aforesaid Inventory and Appraisal Report. Also, the Deed of Assignment itself stated that TCT No. 34127 was registered in Florencio Biascan’s name and was the subject of Special Proceedings No. 98037. Clearly therefore, when Maria Manuel Biascan executed the Deed of Assignment in December 22, 1977 to cover respondent’s contingent fees, respondent had actual knowledge that the lot subject of said deed formed part of the estate of Florencio Biascan. Notwithstanding this and the fact that Special Proceedings No. 98037 was still pending,[17] respondent registered the Deed of Assignment in his favor on July 24, 1990 and caused the transfer of title over the part of the land Maria Manuel Biascan assigned to him. In so doing, the respondent transgressed Article 1491[18] of the Civil Code expressly prohibiting a lawyer from

acquiring property or rights that may be the object of any litigation in which they may take part by virtue of their profession.

Respondent’s assertion that the assignment was made pursuant to a contingent fee contract will notexonerate him. True, a contract for a contingent fee is generally not covered by Article 1491 and isvalid because the transfer or assignment of the property in litigation takes effect only after the finality of a favorable judgment.[19] However, as aforesaid respondent caused the transfer of the subject property in his name during the pendency of Special Proceedings No. 98037. Thus, the prohibition in Article 1491 clearly applies.[20] Respondent is, therefore, liable for malpractice.[21]

As a member of the bar, respondent is strictly mandated to comply with the Attorney’s Oath as well as the Code of Professional Responsibility,[22] both of which require him to obey the laws as well as the legal orders of duly constituted authorities. The transgression of any provision of law by a lawyer is a reprehensible act, which the Court will not countenance.[23]

Likewise, respondent defied the tenor and intent of the trial court’s Order of April 2, 1981 when onJuly 24, 1990, he proceeded to register the Deed of Assignment and caused the issuance of a new TCT in his name. Note that respondent proceeded with such registration of property included in the Estate of Florencio Biascan, despite the fact that the trial court had ruled that aside from Maria Manuel Biascan, complainant and her brother were legal heirs of Florencio Biascan. That the Order dated April 2, 1981 was the subject of an appeal and had not become final at the time he acquired title to the property does not change the fact that there is such an Order. As a lawyer and an officer of the court, respondent should have respected said Order[24] and refrained from doing any act, which would have rendered such Order ineffectual. It bears repeating that a lawyer should uphold the dignity and authority of the court.[25] His actions violate Canon 1 of the Code ofProfessional Responsibility that requires every member of the bar to promote respect for law and legal processes. [26]

Finally, respondent’s contention that the result of the recovery suits should be awaited before any action is taken on the instant Complaint fails to persuade us. What is addressed in this case is whether respondent knowingly acquired an interest over property subject of Special Proceedings No. 98037 to the damage and prejudice of the persons lawfully entitled to said property as legal heirs and in violation of respondent’s oath as a lawyer and his duty as an officer of the court. The question of whether complainant herein is entitled to recovery is not in issue. Thus, the outcome ofthe recovery suits has no bearing in the instant case.

On the matter of the imposable penalty, however, this Court is unable to agree with the recommendation of the IBP Board of Governors, it being too harsh and not in accord with jurisprudence. In Valencia v. Cabanting,[27] Bautista v. Gonzales,[28] and Ordonio v. Eduarte[29] allinvolving violations of Article 1491 of the Civil Code, this Court imposed the penalty of suspension ofsix (6) months on the respondents therein. Considering the nature of the acts of professional

misconduct respondent committed, and the facts and circumstances of this case, the Court finds sufficient grounds to suspend respondent from the practice of law for six (6) months.

WHEREFORE, respondent ATTY. MARCIAL F. LOPEZ is declared LIABLE for SERIOUS MISCONDUCT as a lawyer. He is ordered SUSPENDED from the practice of law for SIX (6) MONTHS, effective upon receipt of this Resolution, with a STERN WARNING that any future misconduct on respondent’s part will be dealt with more severely. Let copies of this Resolution be circulated soonest to all courts, tribunals, and quasi-judicial agencies of the country for their information and guidance, and spread in the personal record of respondent, Atty. Marcial F. Lopez.

SO ORDERED.

ATTY. IRENEO L. TORRES and MRS. NATIVIDAD CELESTINO,

Complainants,

- versus -

ATTY. JOSE CONCEPCION JAVIER,

Respondent.

Adm. Case No. 5910

Present:

PANGANIBAN, J., Chairman,

SANDOVAL-GUTIERREZ,

CORONA,

CARPIO MORALES, and

GARCIA, JJ.

Promulgated:

September 21, 2005

xx - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xx

D E C I S I O N

CARPIO MORALES, J.:

By complaint[1] dated November 26, 2002, Atty. Ireneo L. Torres and Mrs. Natividad Celestino (complainants) charge Atty. Jose Concepcion Javier (respondent) for malpractice, gross misconduct in office as an attorney and/or violation of the lawyer’s oath.

The charges stemmed from the statements/remarks made by respondent in the pleadings he filed in a petition for audit of all funds of the University of the East Faculty Association (UEFA), as counsel for the therein petitioners UEFA then Treasurer Rosamarie Laman, and his wife-former UEFA President Eleonor Javier, before the Bureau of Labor Relations (BLR), Department of Labor and Employment (DOLE) against herein complainants, docketed as NCR-OD-0105-004-LRD (audit case),[2] and from the pleadings filed by respondent in another labor case as counsel for the one hundred seventy six (176) faculty members of the University of the East complainants against herein complainant Atty. Ireneo L. Torres, et al.,[3] docketed as NCR-0D-0201-0005-LRD (attorney’s fees case).[4]

The complaint sets forth three (3) causes of action against respondent.

The first cause of action is based on respondent’s “Urgent Motion to Expedite with Manifestation and Reiteration of Position” (Motion to Expedite) filed in the audit case which complainants allege contained statements which are absolutely false, unsubstantiated, and with malicious imputation of crimes of robbery, theft of UEFFA’s funds, destruction or concealment of UEFA’s documents and some other acts tending to cause dishonor, discredit or contempt upon their persons.[5] Portions of the questioned motion read:

Undersigned attorney would like to manifest – just so it can not be said later on that he kept mum on the matter – that when individual respondents-appellants realized that an audit of Union funds was looming, it appears that they decided to destroy or conceal documents as demonstrated by an “Incident Report Re Robbery” dated May 6, 2002 (a copy just recently secured by the undersigned), attached hereto as Annex “A”, where the police investigator stated that “no forcible entry” was noted by him but “that air condition on the respective rooms were (sic) slightly move (sic) to mislead that suspect as the same as their point of entry.[”] The police officers stated that “no cash of (sic) money were stolen but instead claimed that still undetermined documents/important papers were stolen by the suspects.”

This brings to mind the United States case against Andersen officials who shredded documents related to the Enron scandal when they thought nobody was looking. As in theAndersen/Enron case, the individual respondents-appellants in the instant case knew that the law was going to come knocking at their door, asking a lot [of] questions about financial matters.

From the undersigned’s standpoint, the alleged “robbery” of “still undetermined documents/papers” was an inside job as investigation has shown that there is no evidence of forced entry. Besides, it would be a cinch to establish a motive by individual respondents-appellants Torresand Celestino to destroy documents related to the audit ordered by Regional Director Alex E. Maraan. In any event, the undersigned thinks that the legal process should go on. Lumang gimmick na ‘yang “robbery” ng mga evidensya. They may try to cover up the “looting” of union funds, but there is such a thing as secondary evidence, not to mention the power of this Honorable Office to issue subpoenas even to the union’s depositary banks.[6] (Underscoring supplied)

Complainants aver that respondent violated the attorney’s oath that he “obey the laws” and “do no falsehood,” the Code of Professional Responsibility particularly Rule 10.01 thereof, and Rule 138, specifically paragraph 20 (f) of the Rules of Court for directly pointing to them as the persons whointentionally committed the robbery at the UEFA office, and for citing the Andersen/Enron case which is irrelevant, impertinent, and immaterial to the subject of quasi-judicial inquiry.[7]

As second cause of action, complainants allege that in the attorney’s fees case, respondent, in his “Reply to Respondents (Torres and Marquez) Answer/Comment” filed before the DOLE, used language that was clearly abusive, offensive, and improper,[8] inconsistent with the character of anattorney as a quasi-judicial officer.[9]

As third/last cause of action, complainants quote respondent’s statement in the aforesaid Reply, to wit:

It is not uncommon for us trial lawyers to hear notaries public asking their sons, wives, girlfriends, nephews, etc. to operate a notarial office and sign for them. These girlfriends, nephews, etc. take affidavits, administer oaths and certify documents. x x x,[10]

and allege that the statement is demeaning to the integrity of the legal profession, “uncalled for and deserve[s] censure, [as] the same might shrink the degree of confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession and the solemnity of a notarial document.”[11]

By his Comment, respondent candidly professes that he was angry[12] while he was preparing his “Motion to Expedite” in the audit case, it having come to his knowledge that the UEFA office had been burglarized and complainant Atty. Torres had been spreading reports and rumors implicating his clients including his wife to the burglary. [13]

Respondent stresses that he felt that it was his duty to inform the BLR of the loss of the vital documents so that the resolution of the pending motion for reconsideration filed by complainants would be expedited;[14] and that the information regarding the burglary and his use of the Andersen/Enron case as a figure of speech were relevant in drawing a link between the burglaryand the audit – the burglary having rendered the complete implementation of the audit unattainable.[15]

With respect to the attorney’s fees case, respondent claims that Atty. Torres did not in his Answerconfront the issues thereof but instead “mock[ed] his wife and fabricat[ed] and distort[ed] realities”[16] by including malicious, libelous and impertinent statements and accusations against his wife which exasperated him.[17] A portion of Atty. Torres’ Answer in the attorney’s fees case reads:

x x x in her incumbency as President of the UEFA for 12 years (1987-1999) she got only about P2.00/hr CBA increase which took effect only [in] 1994, with no other substantial improvements of the teacher’s benefits, and yet she spent for more than half a million negotiation expenses from the UEFA’s funds. Her 1994-1999 CBA was only a carbon copy of her old 1989-1994 CBA with no substantial improvements, with uncertain amount of her expenses, because she removed/concealed all the financial records of the UEFA during her term. . . I and the other lawyers/teachers denounced her unlawful deduction of 10% attorney’s fees from the small backwages received by theteachers on April 28, 1993 although there was actually no lawyer who worked for it…and there was no Board nor General Membership Assembly Resolutions passed…the assembly [Nov. 24, 2001] was apparently irked to Mrs. Eleanor Javier when she was booed while talking on the floor, like a confused gabble (sic)…[18]

Not wanting to allow his wife to be maligned by Atty. Torres, respondent admits having responded with a counter-attack in his “Reply to Respondents (Torres and Marquez) Answer/Comment”[19] wherein he stated:

What kind of a lawyer is this Atty. Torres? The undersigned feels that Atty. Torres just cannot kick the habit of injecting immaterial, irrelevant, and impertinent matters in his pleadings. More than that, he lies through his teeth. The undersigned thinks that if he has any common sense at all he should shut up about his accusation that Prof. Javier spent more than half a million pesos for negotiation expenses…she obtained only P2-increase in union members salary, etc. because of the pendency of the damage suit against him on this score. He easily forgets the sad chapter of his lifeas a practitioner when he lost out to Prof. Javier in the petition for audit (Case No. NCR-OD-M-9401-004) which he filed to gain “pogi” points prior to the UEFA election in 1994.[20]

x x x

To repeat, if respondent Atty. Torres has any common sense at all, he should stop making irrelevant, libelous and impertinent allegations in his pleadings. This means changing his “standard

tactic” of skirting the main issues by injecting a web or a maze of sham, immaterial, impertinent or scandalous matters.[21] (Underscoring supplied)

Respondent adds that he merely wanted to bring to the BLR’s attention that Atty. Torres had the habit of hurling baseless accusations against his wife to embarrass her, including one for unjust vexation and another for collection and damages both of which were dismissed after trial on the merits, thus prompting him to state that “these dismissed cases indubitably indicate Atty. Torres’ pattern of mental dishonesty.”[22]

Respondent further claims that in his Answer in the same attorney’s fees case, Atty. Torres accused his client, Prof. Maguigad, of forging the signature of a notary public and of “deliberately us[ing] a falsified/expired Community Tax Certificate” in order to justify the dismissal of the case against him (Atty. Torres);[23] and that Atty. Torres continued harassing his clients including his wife by filing baseless complaints for falsification of public document.[24] Hence, in defense of hisclients, the following statements in his Reply:

Respondent further concluded that lead petitioner Prof. Maguigad “falsified the said petition by causing it to appear that he participated” in the falsification “when he did not in truth and in fact participate thereat” . . . obviously oblivious of the obvious that it is highly improbable for Prof. Maguigad to have forged the signature of the notary public. If he intended to forge it, what was the big idea of doing so? To save Fifty Pesos (P50.00) for notarial fee? Needless to say, the allegation that lead (sic) petitioner Maguigad used a falsified Com. Tax Cert. is patently unfounded and malicious.

But that is not all. Respondents went further and charged Profs. Mendoza, Espiritu, Ramirez and Javier with the same crime of falsification of public document . . . “by causing it to appear that Rogelio Maguigad had indeed participated in the act of verifying/subscribing and swearing the subject petition before notary public Atty. Jorge M. Ventayen, when in truth and in fact he did not participate thereat.”

To the mind of the undersigned, this is the height of irresponsibility, coming as it does froma member of the Philippine Bar. There is no evidence to charge them with falsification of public

document, i.e. the “verification” appended to the present petition. They did not even sign it. The crime imputed is clearly bereft of merit. Frankly, the undersigned thinks that even a dim-witted first-year law student would not oblige with such a very serious charge.

It is not uncommon for us trial lawyer[s] to hear notaries public asking their sons, wives, girlfriends,nephews, etc. to “operate” a notarial office and sign for them. These girlfriends, nephews, etc. take affidavits, administer oaths, and certify documents. Believing that the said “veification” was signed by an impostor-relative of the notary public [Atty. Jorge M. Ventayan] through no fault of his client, Prof. Maguigad, the undersigned sought the assistance of the National Bureau of Investigation (NBI). On May 2, 2002, an NBI agent called up the undersigned to inform him that he arrested in the area near UE one Tancredo E. Ventayen whom he caught in flagrante delicto notarizing an affidavit of loss and feigning to be Atty. Jorge M. Ventayen, supposedly his uncle.[25]

x x x

Petitioners devoted so much space in their answer/comment vainly trying to prove that Profs. Maguigad, Mendoza, Espiritu, Ramirez, and Javier committed the crime of falsification of public document reasoning out that they made “untruthful statements in the narration of facts” in the basic petition.

Respondent Torres is a member of the Philippine Bar. But what law books is he reading?

He should know or ought to know that the allegations in petitioners’ pleading are absolutely privileged because the said allegations or statements are relevant to the issues.[26] (Underscoring supplied)

The Investigating Commissioner of the Integrated Bar of the Philippines (IBP) found respondent guilty of violating the Code of Professional Responsibility for using inappropriate and offensive remarks in his pleadings.

The pertinent portions of the Investigating Commissioner’s Report and Recommendation read:

Respondent admits that he was angry when he wrote the Manifestation…and alleges that Complainant implicated his wife in a burglary. Moreover, Respondent alleges that Complainant has been “engaged in intimidating and harassing” his wife.

It appears that herein Complainant and herein Respondent’s wife have had a series of charges and counter-charges filed against each other. Both parties being protagonists in the intramurals within the University of the East Faculty Association (UEFA). Herein Complainant is the President of the UEFA whereas Respondent’s wife was the former President of UEFA. Nevertheless, we shall treat this matter of charges and counter-charges filed, which involved the UEFA, as extraneous, peripheral, if not outright irrelevant to the issue at hand.

x x x

Clearly, [r]espondent’s primordial reason for the offensive remark stated in his pleadings was his emotional reaction in view of the fact that herein Complainant was in a legal dispute with his wife. This excuse cannot be sustained. Indeed, the remarks quoted above are offensive and inappropriate. That the Respondent is representing his wife is not at all an excuse.[27] (Underscoring supplied)

Accordingly, the Investigating Commissioner recommended that respondent be reprimanded.

The Board of Governors of the Integrated Bar of the Philippines (IBP), by Resolution[28] of October 7, 2004, adopted and approved the Report and Recommendation of the Investigating Commissioner.

The Report of the IBP faulting respondent is well-taken but not its recommendation to reprimand him.

It is well entrenched in Philippine jurisprudence that for reasons of public policy, utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions, are absolutely privileged so long as they are pertinent and relevant to the subject inquiry, however false or malicious they may be.[29]

The requirements of materiality and relevancy are imposed so that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which private malice may be gratified.[30] If the pleader goes beyond the requirements of the statute and alleges an irrelevant matter which is libelous, he loses his privilege.[31]

A matter, however, to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety.[32] That matter alleged in a pleading need not be in every case material to the issues presented by the pleadings. It must, however, belegitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial.[33]

The first cause of action of complainants is based on respondent’s allegation in his “Motion toExpedite” that a burglary of the UEFA office took place, and his imputation to complainants of a plausible motive for carrying out the burglary – the concealment and destruction of vital documents relating to the audit. The imputation may be false but it could indeed possibly prompt the BLR to speed up the resolution of the audit case. In that light, this Court finds that the first cause of action may not lie.

As regards the second cause of action, it appears that respondent was irked by Atty. Torres’ Answer to the complaint in the attorney’s fees case wherein he criticized his (respondent’s) wife’s performance as past President of UEFA.

This Court does not countenance Atty. Torres’ incorporating in his Answer in the attorney’s fees case statements such as “the assembly . . . was apparently irked by Mrs. Eleonor Javier when she was booed while talking on the floor like a confused gabble (sic).” But neither does it countenance

respondent’s retaliating statements like “what kind of lawyer is Atty. Torres?,” “he lies through his teeth,” “if he has any common sense at all he should shut up,” and “Atty. Torres forgets the sad chapter of his life as a practitioner when he lost out to Prof. Javier in the petition for audit which he filed to gain pogi points.” Nor respondent’s emphasis that Atty. Torres is of the habit of hurling baseless accusations against his wife by stating that the dismissal of the cases against his wife, of which Atty. Torres was the complainant, “indubitably indicate Atty. Torres’ pattern of mental dishonesty.”

The issue in the attorney’s fees case was whether the 10% attorney’s fees “checked off” from the initial backwages/salaries of UEFA members is legal. Clearly, the above-quoted statements of respondent in the immediately preceding paragraph cannot be said to be relevant or pertinent to the issue. That Atty. Torres may have conducted himself improperly is not a justification for respondent to be relieved from observing professional conduct in his relations with Atty. Torres.

Clients, not lawyers, are the litigants, so whatever may be the ill-feeling existing between clients should not be allowed to influence counsel in their conduct toward each other or toward suitors in the case.[34]

In the attorney’s fees case, Atty. Torres was acting as counsel for himself as respondent andcomplainant was acting as counsel for his wife as complainant. Although it is understandable, if not justifiable, that in the defense of one’s clients - especially of one’s wife or of one’s self, the zeal in so doing may be carried out to the point of undue skepticism and doubts as to the motives of opposing counsel, the spectacle presented by two members of the bar engaged in bickering and recrimination is far from edifying, and detract from the dignity of the legal profession.[35]

Moreover, in arguing against the dismissal of the attorney’s fees case on the basis of the alleged forgery of the notary public’s signature, respondent did not only endeavor to point out that Atty. Torres erred in advancing such an argument, but personally attacked Atty. Torres’ mental fitness by stating that “the undersigned thinks that even a dim-witted first-year law student would not oblige with such a very serious charge,” and “[r]espondent Torres is a member of the bar [b]ut whatlaw books is he reading.”

In keeping with the dignity of the legal profession, a lawyer’s language must be dignified and choice of language is important in the preparation of pleadings.[36] In the assertion of his client’s rights, a lawyer – even one gifted with superior intellect –is enjoined to rein up his temper.[37]

As reflected above, the inclusion of the derogatory statements by respondent was actuated by his giving vent to his ill-feelings towards Atty. Torres, a purpose to which the mantle of absolute immunity does not extend. Personal colloquies between counsel which cause delay and promote unseemly wrangling should be carefully avoided.[38]

If indeed Atty. Torres filed criminal complaints for falsification of public documents against respondent’s clients as a scheme to harass them, they are not without adequate recourse in law, forif they plead for a righteous cause, the course of justice will surely tilt in their favor, the courts being ever vigilant in the protection of a party’s rights.[39]

Canon 8 of the Code of Professional Responsibility which provides:

CANON 8 – A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESSS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.

Rule 8.01. A lawyer shall not, in professional dealings, use language which is abusive, offensive or otherwise improper.

instructs that respondent’s arguments in his pleadings should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by one gentleman to another.[40] The language vehicle does not run short of expressions

which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive.[41]

As to the reference by respondent to the unfortunate and contemptible practice of notaries public – basis of the last cause of action, while it may detract from the dignity that should characterize the legal profession and the solemnity of a notarial document, respondent, who justifies the same as legitimate defense of his client who was being accused by Atty. Torres of forgery, may, given the relevance of the statement to the subject matter of the pleading, be given the benefit of the doubt.

Respecting the verified complaint – Annex “EJ-A”[42] to the Comment of respondent filed by his wife, Prof. Eleonor R. Javier, against complainant Atty. Torres, the same cannot be consolidated with the present administrative case since the parties and causes of action of such complaint are completely different from those of the present complaint.

WHEREFORE, for employing offensive and improper language in his pleadings, respondent Atty. Jose C. Javier is hereby SUSPENDED from the practice of law for One (1) Month, effective upon receipt of this Decision, and is STERNLY

WARNED that any future infraction of a similar nature shall be dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Barof the Philippines, and all courts in the country for their information and guidance.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

Monticillo vs. del mar

60 SCRA 234 – Legal Ethics – Lawyer’s Duty to the Courts – Contemptuous Language

Jorge Montecillo was accused by Francisco Gica of slander. Atty. Quirico del Mar represented Montecillo and he successfully defended Monteceillo in the lower court. Del Mar was even able to win their counterclaim thus the lower court ordered Gica to pay Montecillo the adjudged moral damages.

Gica appealed the award of damages to the Court of Appeals where the latter court reversed the same. Atty. Del Mar then filed a motion for reconsideration where he made a veiled threat against the Court of Appeals judges intimating that he thinks the CA justices “knowingly rendered an unjustdecision” and “judgment has been rendered through negligence” and that the CA allowed itself to bedeceived.

The CA denied the MFR and it admonished Atty. Del Mar from using such tone with the court. Del Mar then filed a second MFR where he again made threats. The CA then ordered del Mar to show cause as to why he should not be punished for contempt.

Thereafter, del Mar sent the three CA justices a copy of a letter which he sent to the President ofthe Philippines asking the said justices to consider the CA judgment. But the CA did not reverse its judgment. Del Mar then filed a civil case against the three justices of the CA before a Cebu lower court but the civil case was eventually dismissed by reason of a compromise agreement where del

Mar agreed to pay damages to the justices. Eventually, the CA suspended Atty. Del Mar from practice.

The issue reached the Supreme Court. Del Mar asked the SC to reverse his suspension as well as the CA decision as to the Montecillo case. The SC denied both and this earned the ire of del Mar ashe demanded from the Clerk of the Supreme Court as to who were the judges who voted against him.

The Supreme Court then directed del Mar to submit an explanation as to why he should not be disciplined. Del Mar in his explanation instead tried to justify his actions even stating that had he not been “convinced that human efforts in [pursuing the case] will be fruitless” he would have continued with the civil case against the CA justices. In his explanation, del Mar also intimated thateven the Supreme Court is part among “the corrupt, the grafters and those allegedly committing injustice”.

Del Mar even filed a civil case against some Supreme Court justices but the judge who handled the case dismissed the same.

ISSUE: Whether or not Atty. Del Mar should be suspended.

HELD: Yes. Atty. Del Mar, by his contemptuous acts is in violation of his duties to the courts. As an officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily the high esteem and regard towards the court so essential to the proper administration of justice.

It is manifest that del Mar has scant respect for the two highest Courts of the land when on the flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and malice, if not with gross ignorance of the law, in disposing of the case of his client.

Del Mar was then suspended indefinitely.

Zaldivar vs. gonzales

166 SCRA 316 – Legal Ethics – Contemptuous Language – Duty of a Lawyer

Zaldivar was the governor of Antique. He was charged before the Sandiganbayan for violations of the Anti-Graft and Corrupt Practices Act. Gonzales was the then Tanodbayan who was investigating the case. Zaldivar then filed with the Supreme Court a petition for Certiorari, Prohibition and Mandamus assailing the authority of the Tanodbayan to investigate graft cases under the 1987 Constitution. The Supreme Court, acting on the petition issued a Cease and Desist Order against

Gonzalez directing him to temporarily restrain from investigating and filing informations against Zaldivar.

Gonzales however proceeded with the investigation and he filed criminal informations against Zaldivar. Gonzalez even had a newspaper interview where he proudly claims that he scored one on the Supreme Court; that the Supreme Court’s issuance of the TRO is a manifestation theta the “rich and influential persons get favorable actions from the Supreme Court, [while] it is difficult for an ordinary litigant to get his petition to be given due course”.

Zaldivar then filed a Motion for Contempt against Gonzalez. The Supreme Court then ordered Gonzalez to explain his side. Gonzalez stated that the statements in the newspapers were true; that he was only exercising his freedom of speech; that he is entitled to criticize the rulings of theCourt, to point out where he feels the Court may have lapsed into error. He also said, even attaching notes, that not less than six justices of the Supreme Court have approached him to ask him to “go slow” on Zaldivar and to not embarrass the Supreme Court.

ISSUE: Whether or not Gonzalez is guilty of contempt.

HELD: Yes. The statements made by respondent Gonzalez clearly constitute contempt and call for the exercise of the disciplinary authority of the Supreme Court. His statements necessarily imply that the justices of the Supreme Court betrayed their oath of office. Such statements constitute the grossest kind of disrespect for the Supreme Court. Such statements very clearly debase and degrade the Supreme Court and, through the Court, the entire system of administration of justice in the country.

Gonzalez is entitled to the constitutional guarantee of free speech. What Gonzalez seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is themaintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice.

Gonzalez, apart from being a lawyer and an officer of the court, is also a Special Prosecutor who owes duties of fidelity and respect to the Republic and to the Supreme Court as the embodiment and the repository of the judicial power in the government of the Republic. The responsibility of Gonzalez to uphold the dignity and authority of the Supreme Court and not to promote distrust in the administration of justice is heavier than that of a private practicing lawyer.

Gonzalez is also entitled to criticize the rulings of the court but his criticisms must be bona fide. In the case at bar, his statements, particularly the one where he alleged that members of the Supreme Court approached him, are of no relation to the Zaldivar case.

The Supreme Court suspended Gonzalez indefinitely from the practice of law.

IN THE MATTER OF THE ALLEGED IMPROPER CONDUCT OF SANDIGANBAYAN ASSOCIATE JUSTICE ANACLETO D. BADOY, JR., TAKING AN AMBULANCE BUT PROCEEDING TO THE GMATV STATION FOR AN INTERVIEW INSTEAD OF PROCEEDING FORTHWITH TO THE HOSPITAL.

[A.M. NO. SB-02-10-J. January 16, 2003]

JOSEPH E. ESTRADA, JOSE “JINGGOY” ESTRADA, SERAFIN R. CUEVAS, RENE A.V. SAGUISAG, JOSE B. FLAMINIANO, PACIFICO A. AGABIN, FELIX D. CARAO, JR., CLEOFE V. VERZOLA, DELIA H. HERMOSO AND RAYMUND P. FORTUN, complainants, vs. ASSOCIATE JUSTICES ANACLETO D. BADOY, JR., AND TERESITA LEONARDO-DE CASTRO, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J:

Judges, like ordinary mortals, are subject to human limitations. At times, the great tides of perturbing and overwhelming emotions engulf them. Notwithstanding so, they are expected to be “cerebral men”[1] who can control their confounding emotions and idiosyncratic inclinations. Otherwise, they will be held answerable for their conduct.

Haled in these two consolidated administrative cases, A.M. No. 01-12-01-SC and A.M No. SB-02-10-J, are Sandiganbayan Justices Anacleto D. Badoy, Jr. (Ret.) and Teresita Leonardo-De Castro.

The facts of A.M. No. 01-12-01-SC may be synthesized as follows:

On November 29, 2001, Justice Badoy, aboard an ambulance, “whisked himself” to the GMA Broadcast Station in Quezon City for a live interview in the news program Saksi. There, he announced the loss of a Resolution he penned in connection with the plunder case against former President Joseph Ejercito Estrada and others.

The media sarcastically referred to the event as a “staged comedy”[2] or a “television tryst.”[3] Leading newspapers contained facetious headlines, such as “Ambulance rushes Badoy—to TV Station,”[4] “What’s with Justice Badoy?,”[5] and “Unorthodox Behavior – Analyze Badoy, Erap Lawyers ask SC.”[6]

Acting on the media reports, this Court directed Justice Badoy to show cause why he should not be administratively charged with conduct unbecoming a Justice of the Sandiganbayan.[7]

In his compliance,[8] Justice Badoy alleged that three days prior to the incident, he could not find his Resolution ordering that former President Estrada be detained at Fort Sto. Domingo. So he requested the National Bureau of Investigation to conduct an investigation, but to no avail. Thus, on November 29, 2001, agitated that someone might have stolen the Resolution and claimed that he

(Justice Badoy) sold it for a fee, he decided to go to the GMA-7 Broadcast Station and report its loss, in order that the public may know he is honest. In going there, he chose to ride in an ambulance because he felt very sick and cold, intending to proceed to a hospital after the interview.

A.M No. SB-02-10-J is set on a different factual milieu, to wit:

Subsequent to the descent of former President Estrada from power, the Office of the Ombudsmanfiled several criminal cases against him, his family, and friends. One of them is Criminal Case No. 26558 wherein he, his son Jose “Jinggoy” and Atty. Edward Serapio stand accused for violation of Republic Act No. 7080, the Anti-Plunder Law. The case was raffled to the Third Division of the Sandiganbayan composed of Justice Badoy, as Chairman, and Justices Teresita Leonardo-De Castro and Ricardo M. Ilarde, now retired, as members.

On September 13, 2001, after the termination of a series of pre-trial conference between the parties, the Sandiganbayan furnished them and their counsel with a copy of the Pre-trial Order for their signatures. The defense panel composed of Atty. Rene A.V. Saguisag (lead counsel), Justice Serafin R. Cuevas, Attys. Jose B. Flaminiano, Felix D. Carao, Jr., Cleofe V. Verzola, and Delia H. Hermoso, refused to sign it on the grounds that: 1) there is no provision in the Revised Rules of Criminal Procedure requiring them to sign a Pre-trial Order;[9] 2) they were not given ample time toread it;[10] and 3) it incorporates a statement that they admitted the existence of certain exhibitsalthough there was no such admission.[11]

In the course of an argument between Sandiganbayan Justice De Castro and Justice Cuevas, Atty. Saguisag intervened. In the process, he argued simultaneously with Justice Cuevas.[12] Despite Justice De Castro’s request to wait for his turn, Atty. Saguisag persisted, prompting her to bang the gavel twice and order him to stop arguing.[13] This led Justice Badoy to order four Sheriffs to take Atty. Saguisag out of the courtroom.[14]

Thereafter, Justice De Castro ruled in open court that the assailed portion of the Pre-trial Order could be deleted.[15]

The prosecution manifested its acquiescence. However, Atty. Flaminiano objected, insisting that the defense needs more time to study the Pre-trial Order.[16] Notwithstanding the objection, Justice Badoy terminated the pre-trial and set the trial proper on October 1, 3 and 4, 2001 and thereafter, every Monday, Wednesday and Thursday of the week, all at 1:00 o’clock in the afternoon.[17]

On October 1, 2001, the defense lawyers did not appear. Determined to proceed with the trial, Justice Badoy appointed Atty. Sabino Acut, Jr. and Atty. Martin Pison, counsel for accused Atty. Serapio, to represent the Estradas. Former President Estrada objected, insisting that he has the right to choose his counsel. Atty. Acut and Atty. Pison declined because of a possible conflict between their client’s interest and that of the Estradas. As a last recourse, Justice Badoy

appointed lawyers from the Public Attorneys Office (PAO) as counsel de officiofor the Estradas.[18]

Feeling aggrieved, former President Estrada, “Jinggoy” Estrada and all their counsel of record in Criminal Case No. 26558 filed the instant administrative complaint charging Justices Badoy and De Castro with:

1) dishonesty and misrepresentation for incorporating in the Pre-trial Order a statement that “the defense admitted Plaintiff’s Exhibit A up to Exhibit C-45 and its submarkings as to its existence” notwithstanding the fact that they did not admit the same;[19]

2) oppression and gross misconduct for “throwing” Atty. Saguisag out of the courtroom;[20]

3) violation of Supreme Court rules, directives and circulars for setting the hearing of the plunder case three times a week, at one o’clock in the afternoon, without prior consultation with the defense counsel;[21]

4) denial of the accused’s right to counsel for appointing PAO lawyers as counsel de officio of the Estradas during the hearing of October 1, 2001;[22] and

5) penchant for late rulings[23] as shown in the following instances:

1. The release of the Resolution denying complainant Jinggoy Estrada’s Motion to Quash (filed as early as April 2001) after office hours and on the eve of the July 10, 2001 arraignment.

2. The release of the Resolution denying complainant Estradas’ Petition to Recuse on the scheduled date of the pre-trial or on September 3, 2001.

3. Respondents’ failure to resolve complainants’ Motion to Cancel the October 1, 2001 hearing filed as early as September 19, 2001.

4. The release of the Resolution denying complainant Jinggoy Estrada’s Motion to be Allowed to Administer the Oath of Office to Senator Luisa “Loi” Estrada, on June 29, 2001, past beyond the scheduled hour of oath-taking, thus, prompting Justice Ricardo M. Ilarde (Ret.) to write the following annotations on the Resolution: “What is there to deny? This resolution was brought to us only at 4:45 p.m. The matter has been rendered moot and academic.”

Respondents filed their separate comments.

Justice De Castro explains as follows:

First, in issuing the Pre-trial Order, the court merely relied on the parties’ Joint Stipulations of Facts and on the notes of the five (5) stenographers recording the pre-trial conferences held before the Division Clerk of Court. Nonetheless, when complainants called the court’s attention regarding the assailed statement in the Pre-trial Order, she ordered its deletion.[24]Second, it was

Atty. Saguisag’s contumacious conduct of “loudly speaking simultaneously with Atty. Cuevas” that prompted respondent Justices to order him to leave the courtroom.[25]Third, they consulted the complainants before they set the hearing of the plunder case three times a week, resulting in the revision of the trial settings embodied in the court’s Order dated September 14, 2001.[26] Fourth, the appointment of three (3) PAO lawyers was intended to provide the accused with adequate legal assistance during the hearing. And fifth, they resolved the accused’s three motions to quash only on July 9, 2001 because the parties’ last pleading was filed only on July 5, 2001.[27]

For his part, Justice Badoy maintains that the Pre-trial Order has not prejudiced the accused sincethey were not obliged to sign it and that they are free to object to the presentation of any evidence during trial.[28] He ordered Atty. Saguisag to leave the courtroom because he ignored Justice De Castro’s repeated order to stop arguing.[29] On the setting of the hearing of the plunder case three times a week, he stressed that the court was merely complying with the Speedy Trial Act.[30] And lastly, on the alleged late rulings, he explains:

“Regarding the release of the Resolution of the undersigned on the Motion for Recusation of the Estradas on the recusation issue. At the time, the undersigned had no intention of releasing it yet in order to fine-tune the same further. However, he was informed just before going out for the hearing that the Estradas were going to use the pendency of their Motion for Recusation as a reason, again, to ask for the postponement of the setting for that day, one of their several motions for postponement.

As regards the delay in the Resolution of the undersigned on the permission to have Mayor Jose “Jinggoy” Estrada go to San Juan City to administer the oath to both his mother as Senator and hisbrother as the new Mayor of San Juan City, the reason was because the undersigned was looking hard for a justification to grant the request since the undersigned sympathized with the same. The undersigned went to the extent of requesting a copy of the Rules and Regulations from both the Bureau of Jail Management and Penology (BJMP) as well as the Bureau of Corrections (BOC). Hence, the delay in the Resolution of the ponencia. But, even late, there was still a chance for then Mayor Jose “Jinggoy” Estrada to administer the oaths of office.”

x x x x x x

The undersigned stated that, with every Justice having 100% load and 100% staff, with the plundercase (equivalent easily to 500%), the undersigned now had a load of 600% but with his support staffremaining in the same level. That is why he asked for additional staff.”[31] (Emphasis supplied)

At the outset, it must be stressed that the retirement[32] of Justice Badoy from the Judiciary does not divest this Court of its jurisdiction over these cases. In Perez vs. Abiera,[33] this Court ruled:

“X x x. In other words, the jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had

ceased to be in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. For what remedy would the people have against a judge or any other public official who resorts to wrongful and illegal conduct during his last days in office? What would prevent some corrupt and unscrupulous magistrate from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.”

We shall resolve A.M. No. 01-12-01-SC first.

An introspective appraisal of the “ambulance incident” yields reasons for this Court to adjudge Justice Badoy guilty of conduct unbecoming a Justice.

Canon 2 of the Code of Judicial Conduct provides that “a judge should avoid impropriety and the appearance of impropriety in all activities.” He should so behave at all times as to promote public confidence in the integrity of the Judiciary.[34] Concomitant with this is the express mandate of the Canons of Judicial Ethics that “justice should not be bounded by the individual idiosyncrasies ofthose who administer it.” A judge should adopt the usual and expected method of doing justice, andnot seek to be spectacular or sensational in the conduct of his court.

Justice Badoy tramples upon the foregoing judicial norms. We see no reason why he should rush to the GMA-7 Broadcast Station just to inform the public about the loss of a Resolution. This is an internal office incident which should not be reported to the whole nation. His claim that the Resolution might have been stolen and sold by someone (using his name) for a fee is a wild conjecture. Not only did his conduct give an image that he could not manage his work effectively, but it also indicated that he had corrupt personnel. Moreover, it dragged innocent parties as possible culprits.

Justice Badoy’s aberrant behavior deserves administrative sanction. As the Chairman of the Division hearing the plunder case against the former President of the Philippines, he should have been more circumspect in his actuation. A short pause for reflection might have yielded a better judgment. The loss of the Resolution, being an internal matter, could have been addressed inside his own chamber. That he brought it to the arena of public opinion is pure vanity. It cannot be countenanced. If lawyers are prohibited from making public statements in the media regarding a pending case to arouse public opinion for or against a party,[35] with more reason should judges be prohibited from seeking publicity. Judges are not actors or politicians who thrive by

publicity. Publicity undermines the dignity and impartiality of a judge.[36] Thus, at no time should he be moved by a desire to cater to public opinion to the detriment of the administration of justice.[37]

The fact that Justice Badoy, just three (3) weeks prior to the “ambulance incident,” was strictly ordered by Chief Justice Hilario G. Davide, Jr., “to cease and desist from holding press conferences, issuing press statements, or giving interviews to the media on any matter or incident related to the issues subject of the controversy”[38] all the more punctuates his indiscretion.

As we mentioned earlier, judges are subject to human limitations. Imbedded in their consciousness is the complex of emotions, habits and convictions. Aware of this actuality, it behooves them to regulate these deflecting forces and not to let them loose, either to their own detriment or to thatof the courts they serve. This is the high price they have to pay as occupants of their exalted positions.

We now resolve A.M No. SB-02-10-J.

At this juncture, let it be stressed that the administration of justice is primarily a joint responsibility of the judge and the lawyer. The judge expects a lawyer to properly perform his rolein this task in the same manner that the lawyer expects a judge to do his part.[39] Their relation should be based on mutual respect and on a deep appreciation by one of the duties of the other. Only in this manner can each minimize occasions for delinquency and help attain effectively the ends of justice.[40]

The conflict between the herein parties could have been avoided if only they heeded the foregoing clarion call.

I

Respondents are not guilty of the charges of dishonesty and misrepresentation. Dishonesty connotes a disposition to deceive,[41] while misrepresentation means a statement made to deceive or mislead.[42] Obviously, both imply an “intention” to deceive. Complainants failed to prove that respondents acted with deceit or with malice or bad faith in stating in the Pre-trial Order that the defense admitted the existence of certain exhibits. Other than their bare allegation, no sufficientevidence was adduced to support the charge.[43] That respondents did not intend to deceive complainants is clear from the fact that the Pre-trial Order states verbatim the Joint Stipulations of Facts submitted by both parties. Furthermore, when complainants expressed their objection to the inclusion of the assailed statement, respondents immediately ordered its deletion. The transcript of stenographic notes is revealing, thus:

“AJ BADOY:

The Court would appreciate if you can point out some grammatical errors.

Atty. Flaminiano:

Yes, Your Honor. I am going to do that.

On page 20, the last paragraph states: “The defense admitted exhibit “A” up to exhibit “C-45” and its sub markings as to its existence but not as to the truth of the content.” In the very first place there never was any admission made by the defense as even to the existence of the document. Andthe sentence also we believe not grammatically appropriate. It should be their sub markings or as to their existence because this involved several documents, Your Honors.

AJ DE CASTRO:

That portion may be deleted.

Atty. Flaminiano:

Well, I’m not sure about it. Your Honor. I only pointed that there is a need for us to go over page by page because we got a copy only after there was an incident –

x x x x x x

OMB Desierto:

We can have this deleted.

Atty. Flaminiano:

But there are several others.

AJ DE CASTRO:

What are those?

OMB Desierto:

After one (1) hour they should be able to determine that. After all Your Honor, I would like to emphasize the fact that the Joint Stipulation of Facts were signed—stipulations which we had a week ago were signed by the parties, by the counsels for the accused. And now, the things that arereflected here, are found in this Pre-trial Order. If there is any delineation from what stipulated then and were signed by the counsels for the defense and also the prosecution, then we can correctthat, but it cannot be possible major changes will have to be made in the Pre-trial Order since this is only copied anyway from the Joint Stipulation of Facts. If there are such thing as that particular sentence which should be objectionable to the defense, the prosecution is ready to agreeto its deletion.

x x x x x x

AJ DE CASTRO:

You know what we did here is simply copy verbatim every document that we found on record pertaining to the Pre-trial conference. We did not add. We did not subtract. So, anything that you will state now will simply be corrections of some clerical errors, that is all. Giving you enough time to go over.”[44] (Emphasis supplied)

On complainants’ refusal to sign the Pre-trial Order, Section 2, Rule 118 of the Revised Rules of Criminal Procedure provides that “All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused.” Considering that the Pre-trial Order contains the recital of the actions taken by the parties, agreements and admissions, the facts stipulated, and the evidencemarked,[45] the parties must sign it. A party who participates in the pre-trial conference and who signs the Joint Stipulation of Facts is expected to sign the Pre-trial Order. If a party believes that the Pre-trial Order is not an honest representation of what transpired in the pre-trial conference, then he must specify his objections thereto and the court may modify it to prevent injustice. This was what respondents exactly did when complainants pointed out the assailed statement in the Pre-trial Order.

II

We now come to complainants’ allegation of oppression and gross misconduct. Oppression is a “misdemeanor committed by a public officer, who under color of his office, wrongfully inflict upon any person any bodily harm, imprisonment or other injury.” It is an “act of cruelty, severity, or excessive use of authority.”[46] Upon the other hand, the word “misconduct” implies wrongful intention. For gross misconduct to exist, the judicial act complained of should be corrupt or inspired by an intention to violate the law or a persistent disregard of well-known legal rules.[47] We find no evidence to prove complainants’ charges of oppression and misconduct.

Records show that Atty. Saguisag was asking the court for a copy of the Pre-trial Order so that he could follow up the court’s discussion. He did not utter any disrespectful remark against respondents nor attack their integrity or authority. However, he kept on speaking simultaneously with Justice Cuevas and refused to yield to the court’s repeated order to stop. Such actuation musthave constrained respondents to lose their cool and order the sheriffs to take him out of the courtroom. At that point, what respondents should have done was to cite him in direct contempt of court pursuant to Rule 71 of the 1997 Rules of Civil Procedure, as amended.[48] In Romero vs. Valle,Jr.,[49] this Court ruled:

“Precisely, judicial officers are given contempt powers in order that without being arbitrary, unreasonable or unjust, they may endeavor to hold counsel to a proper appreciation of their duties to the court. Respondent judge could very well have cited complainant in contempt of court instead

of indulging in tantrums by banging his gavel in a very forceful manner and unceremoniously walking out of the courtroom.”

It has been consistently stressed that the role of a judge in relation to those who appear before his court must be one of temperance, patience and courtesy. In this regard, Rule 3.04 of the Code of Judicial Conduct states: “A judge should be patient, attentive and courteous to all lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants.”

In Echano vs. Sunga,[50] respondent judge, during the course of an argument in his sala, lost his cool and called the sheriff to take away the arguing attorney. And when the attorney kept on talking, respondent judge countered, “Submitted, Buntalin kita dian.” This Court admonished him to be more prudent and restrained in his behavior.

For his part, pursuant to Canon 11 of the Code of Professional Responsibility, Atty. Saguisag should have observed the respect due to respondent magistrates for the maintenance of the court’s supreme importance. Upon being ordered to stop arguing simultaneously with Justice Cuevas, he should have complied and behaved accordingly. Had he done so, he would not have been ordered to leave the courtroom. Indeed, he failed to comport himself in a manner required of an officer of the court.

III

The setting of the hearing of the plunder case three times a week is in order, not only because the case is of national concern, but more importantly, because the accused are presently detained.[51] Contrary to complainants’ assertions, the continuous trial is in accordance with the mandate of the law. This Court, in Administrative Circular No. 3-90 dated January 31, 1990, ordered all trial courts to adopt the mandatory continuous trial system in accordance with Administrative Circular No. 4 dated September 22, 1988 and Circular No. 1-89 dated January 19, 1989. It was adopted precisely to minimize delay in the processing of cases. This delay was attributed to the common practice of piecemeal trial wherein cases are set for trial one day at a time and thereafter the hearing is postponed to another date or dates until all the parties have finished their presentation of evidence.[52] Section 2 of Rule 119 of the Revised Rules on Criminal Procedure provides:

“SEC. 2 Continuous trial until terminated; postponements. – Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The court shall, after consultations with the prosecutor and defense counsel, set the case for continuous trial on weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.” (Emphasis supplied)

Corolarilly, the “consultations” referred to in the foregoing provisions does not necessarily mean that the court has to secure first from the prosecution and defense their approval before it can set the date of hearing. To rule otherwise is to subject our trial system to the control of the parties and their counsel.

Complainants also assail respondents’ act of setting the hearing at one o’clock in the afternoon. Again, there is nothing irregular in it. The schedule of hearing is regarded as a matter necessarily at the discretion of the trial judge. As a matter of fact, a court may even hold night sessions, and a court of review will not interfere unless it clearly appears that there has been an abuse of the power of the judge and that injustice has been done.[53] This is because the good of the service demands more toil and less idleness, and the limitations imposed by law are aimed to cutindolence and not the other way around.[54]

IV

Our minds cannot sit easy with regard to the charge of violation of the accuseds’ right to counsel. A PAO lawyer is considered as independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of thepolice, or a municipal attorney whose interest is admittedly adverse to that of the accused. In People vs. Bacor,[55] we ruled that the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused.

V

Finally, we find that Justice Badoy incurred delay in resolving Jinggoy Estrada’s motion to be allowed to administer the oath of his mother, a newly elected Senator. Every judge is required, at all times, to be alert in his rulings and in the conduct of the business of the court, so far as he can make it useful to litigants and to the community. Rule 3.05, Canon 3 of the Code of Judicial Conductprovides that “A judge shall dispose of the court’s business promptly and decide cases within the required periods.” A judge must cultivate a capacity for quick decision and habits of indecision must be sedulously overcome.

While we commend Justice Badoy’s persistence in searching for precedents that would help him resolve Jinggoy Estradas’ motion to be allowed to administer the oath of office of his mother, nonetheless, he should not have delayed resolving the same. As a result, the members of his Division failed to vote on his Resolution. He knew very well that the oath taking was to be held at 2:00 P.M. of June 29, 2001. Even if he had to deny the motion, he should have consulted his members before 2:00 P.M. so as to give them the opportunity to consider Jinggoy Estrada’s arguments. When he submitted the Resolution to his members at 4:45 P.M., he rendered their votes inconsequential. Even Justices De Castro and Ilarde made notes in the same Resolution to theeffect that the matter subject of the Resolution had become moot before it reached them. Justice De Castro stated: “The matter is now moot and academic;”while Justice Ilarde

wrote: “What is there to deny? This resolution was brought to us only on 4:45 P.M. The matter hasbeen rendered moot and academic.” Clearly, Justice Badoy should be held liable for such delay.

In sum, we find Justice Badoy guilty of the following administrative offenses:

1) conduct unbecoming a Justice for going to GMA-7 Broadcast Station aboard an ambulance and reporting the loss of a Resolution, classified as a light charge under Section 10 of Rule 140 of the Revised Rules of Court, as amended;[56] and

2) undue delay in resolving Jinggoy Estrada’s motion to be allowed to administer his mother’s oath of office, a less serious charge under Section 9 of the same Rule.[57]

Likewise, we find that both Justice Badoy and Justice De Castro failed to exhibit judicial temperament. Such conduct deserves admonition.

One last word. The members of the bench and the bar ought to be reminded that the people expect from them a sense of shared responsibility in the administration of justice – a crucial factorin the speedy and fair disposition of cases. Each of them must do his share for in the last analysis the quality of justice meted out by the courts cannot be higher than the quality of the lawyers practicing in the courts and of the judges who have been selected from among them.

WHEREFORE, respondent Justice Anacleto D. Badoy, Jr. (Retired), is hereby FINED in the sum of P13,000.00 for conduct unbecoming a Justice and for delay in issuing an Order, to be deducted from his retirement benefits.

Justice Teresita Leonardo-De Castro is hereby ADMONISHED to be more tolerant of counsel’s demeanors which do not detract from the dignity and solemnity of the court proceedings.

Let a copy of this Decision be attached to respondents’ records with this Court.

SO ORDERED.

ROMEO R. ECHAUZ, Petitioner, v. COURT OF APPEALS and ASSOCIATED BANK, Respondents.

CV Law Office & Associates for Petitioner.

Soluta, Leonides, Marifosque, Laluna, Esquivias & Aguila Law Offices for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; MOTIONS; EXTENSION OF TIME TO FILE MOTION FOR RECONSIDERATION; NO LONGER ALLOWED IN THE LIGHT OF THE HABALUYAS CASE. — Is the denial of a motion for extension of time to file a motion for reconsideration a reversible error when the appeal is purportedly not frivolous or manifestly filed for delay? This petition was filed after the promulgation of Habaluyas on 30 May 1986 which clearly ruled: ". . . Hence, for the guidance of Bench and Bar, the Court restates and clarifies the rules on this point, as follows; 1.) 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 new trial or 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." The questioned appellate court’s decision cannot be overturned absent any showing of reversible error. Strict application of technical rules will be disregarded to obviate injustice but, in point of fact, Associated Bank’s continued operation belies petitioner’s apprehension as to its continued solvency. The Court of Appeals did not err in affirming this fact.

2. ID.; EXECUTION PENDING APPEAL; WHEN GRANTED; CASE OF AGUILOS v. BARRIOS AND RCPI v. LANTIN CITED. — Besides, as stated in Aguilos v. Barrios, Et. Al. (72 Phil. 285):" ‘ . . . If the judgment is executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes damages may arise which cannot be fully compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by superior circumstances demanding urgency and the provision contained in Rule 39, Section 2, requires a statement of these circumstances as a security for their existence.’" Then, in RCPI v. Lantin, Et. Al.(134 SCRA 395 [1985]), execution pending appeal of an award of moral and exemplary damages was disallowed because: ‘ . . . The execution of any award for moral and exemplary damages is dependenton the outcome of the main case. Unlike actual damages for which the petitioners may clearly be held liable if they breach a specific contract and the amounts of which are fixed and certain, liabilities with respect to moral and exemplary damages as well as the exact amounts remain uncertain and indefinite pending resolution by the Intermediate Appellate Court and eventually the Supreme Court. The existence of the factual bases of these types of damages and their causal relation to the petitioners’ act will have to be determined in the light of the assignments of errors on appeal. It is possible that the petitioners, after all, while liable for actual damages may not be liable for moral and exemplary damages. Or as in some cases elevated to the Supreme Court, the awards may be reduced.’

3. ID.; ID.; ASSAILABLE IN A SPECIAL CIVIL ACTION FOR CERTIORARI; RULING IN JACA v.

DAVAO LUMBER COMPANY REITERATED. — Anent the issue of the propriety of a special civil action for certiorarito assail an order for execution pending appeal, we have ruled in Jaca, Et. Al. v. Davao Lumber Company, Et. Al. (113 SCRA 107 [1982]), that: ‘ . . . Although Section 1, Rule 65 of theRules of Court provides that the special civil action of certiorari may only be invoked when "there isno appeal, nor any plain, speedy and adequate remedy in the (ordinary) course of law," this rule is not without exception. The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient. Itis the inadequacy - not the mere absence - of all other legal remedies and the danger of failure of justice without the writ that usually determines the propriety ofcertiorari.’

4. ID.; ID.; ID.; REMEDY OF CERTIORARI NOT BARRED BY AN APPLICATION FOR SUPERSEDEAS BOND; CASE OF VALENCIA v. C.A. CITED. — Private respondent’s act of filing a petition for certiorari while its motion to approve supersedeas bond was pending before the court aquo, cannot be a case of forum shopping or double dealing. In Valencia v. Court of Appeals (184 SCRA 568), it was held: ". . ., thatcertiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons. Also, the fact that the losing party had appealed from the judgment does not bar thecertiorari action filed in respondent court as the appeal could not be an adequate remedy from such premature execution. That petitioner could have resorted to a supersedeas bond to prevent execution pending appeal, as suggested by the two lower courts, is not to be held against him. The filing of such bond does not entitle him to the suspension of execution as a matter of right. It cannot, therefore, be categorically considered as a plain, speedy and adequate remedy. Hence, no rule requires a losing party so circumstanced to adopt such remedyin lieu or before availment of other remedial options at hand. Furthermore, a rational interpretationof Section 3, Rule 39 should be that the requirement for a supersedeas bond presupposes that the case presents a presumptively valid occasion for discretionary execution. Otherwise, even if no goodreason exists to warrant advance execution, the prevailing party could unjustly compel the losing party to post a supersedeas bond through the simple expedient of filing a motion for, and the trial court improvidently granting, a writ of execution pending appeal although the situation is violative of Section 2, Rule 39. . . ."

D E C I S I O N

PADILLA, J.:

Private respondent Associated Bank filed a collection case against petitioner Romeo Echauz before the Regional Trial Court (RTC) of Manila, Branch 6, on 18 January 1983. Alleging that the case was filed with malice and bad faith and for harassment, petitioner filed a counterclaim and asked for damages. In a decision dated 8 September 1986, the respondent bank’s complaint was dismissed while damages and attorney’s fees were awarded by the court a quo in favor of the petitioner. The later then asked for the immediate execution of the award, pending appeal, as private respondent bank seemed to petitioner to be in imminent danger of insolvency based on news reports and his ownobservations as to its management. Petitioner was then seventy (70) years old and might no longer be in a position to enjoy the award if his claim were not immediately acted upon. Execution was granted in a special order dated 8 October 1986. On 9 October 1986 a writ of execution was issuedto implement the special order and on the same day Deputy Sheriff Orlando Alcantara issued a written demand on respondent bank to comply with the writ of execution. Auction sale of respondent bank’s properties was set for 23 October 1986. On 17 October 1986, respondent bank filed a motion to stay execution and tendered a property bond. Without waiting for the resolution of its motion to approve supersedeas bond in the court a quo, private respondent bank filed a petition for certiorari with the Court of Appeals on 17 October 1986 and obtained a temporary restraining order against the aforementioned special order, writ of execution and auction sale.

In a decision * promulgated on 8 June 1987, respondent Court of Appeals set aside the special order, quashed the writ of execution pending appeal and stopped the auction sale. It held that petitioner’s apprehensions of respondent bank’s financial standing and solvency were insufficient grounds to warrant immediate execution.

Petitioner argues before us in this petition for review on certiorari that the grounds for execution pending appeal in the case at bar are valid. Further, he claims that the petition that respondent bank filed with the Court of Appeals was precipitate as it still had, before the trial court, an unresolved Motion to Approve Supersedeas Bond. Such being the case, respondent bank is guilty of forum-shopping and double-dealing, so petitioner contends.

In the Court of Appeals, petitioner filed a motion for extension of time to file motion for reconsideration on 30 July 1987 (the last day for filing the motion for reconsideration). Citing the Habaluyas doctrine, 1 reiterated in Lacsamana, 2 the motion for extension was denied, and the motion for reconsideration filed on 2 July 1987 was stricken off the records for late filing. 3 Likewise denied was a second motion for reconsideration with supplemental motion for re-raffle filed on 23 July 1987, by virtue of Sec. 6, Executive Order No. 33 which took effect on 28 July 1986 disallowing the subject motion. 4

On 23 August 1987, the present petition was filed adducing the following grounds:chanrob1es

virtual 1aw library

1. Respondent Court of Appeals erred in not finding and holding that the lower court did not abuse its discretion, neither did it exceed its jurisdiction in issuing Special Order dated October 8, 1986.

2. The respondent Court of Appeals erred in not finding and holding that the Petition filed by private respondent was pre-mature and that private respondent bank is guilty of forum shopping and double dealing.

3. The Decision sought to be reviewed did not make a complete findings of facts on all issues raised by herein petitioner before the Court of Appeals.

4. The Decision sought to be reviewed was contrary to the admission of facts by both the petitioner and private Respondent.

5. The findings of facts in the questioned Decision are contrary to lower court’s findings and its conclusion overlooked matters of substance but gave credence to private respondent’s unsupported propositions.

6. The judgment sought to be reviewed if not reversed and set aside is contrary to equity and will work injustice to herein petitioner who suffered and continues to suffer irreparable damage and great injury. 5

Private respondent, in its comment, states that this petition was filed out of time. It is alleged thatthe Motion for Reconsideration of the Court of Appeals decision was filed two (2) days late, for which reason the same was stricken off the records by respondent Court citing the ruling in Habaluyas previously cited.

Petitioner’s Reply contends that the Habaluyas case is not squarely applicable because what is contemplated in said case is delay that is manifest and evident, a situation not obtaining in this case. Likewise, in the case at bar, the factual findings and conclusions of law of respondent Court are diametrically opposed to those of the trial court, and therefore, the findings of the Court of Appeals are not binding on this Court.chanrobles law library : red

Is the denial of a motion for extension of time to file a motion for reconsideration a reversible error when the appeal is purportedly not frivolous or manifestly filed for delay?

This petition was filed after the promulgation of Habaluyas on 30 May 1986 which clearly ruled:jgc:chanrobles.com.ph

". . . Hence, for the guidance of Bench and Bar, the Court restates and clarifies the rules on this point, as follows:chanrob1es virtual 1aw library

1) Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforcedthat no motion for extension of time to file a motion for new trial or 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."cralaw virtua1aw library

The questioned appellate court’s decision cannot be overturned absent any showing of reversible error. Strict application of technical rules will be disregarded to obviate injustice but, in point of fact, Associated Bank’s continued operation belies petitioner’s apprehension as to its continued solvency. The Court of Appeals did not err in affirming this fact.

Besides, as stated in Aguilos v. Barrios, Et. Al.: 6

"‘. . . If the judgment is executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes damages may arise which cannot be fully compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by superior circumstances demanding urgency and the provision contained in Rule 39, Section 2, requires a statement of these circumstances as a security for their existence."cralaw virtua1aw library

Then, in RCPI v. Lantin, Et Al., 7 execution pending appeal of an award of moral and exemplary damages was disallowed because:chanrob1es virtual 1aw library

. . . The execution of any award for moral and exemplary damages is dependent on the outcome of the main case. Unlike actual damages for which the petitioners may clearly be held liable if they breach a specific contract and the amounts of which are fixed and certain, liabilities with respect to moral and exemplary damages as well as the exact amounts remain uncertain and indefinite pending resolution by the Intermediate Appellate Court and eventually the Supreme Court. The existence of the factual bases of these types of damages and their causal relation to the petitioners’ act will have to be determined in the light of the assignments of errors on appeal. It is possible that the petitioners, after all, while liable for actual damages may not be liable for moral damages and exemplary damages. Or as in some cases elevated to the Supreme Court, the awards may be reduced.’

Anent the issue of the propriety of a special civil action for certiorari to assail an order for execution pending appeal, we have ruled in Jaca, Et. Al. v. Davao Lumber Company, Et. Al. 8

that:chanrob1es virtual 1aw library

‘. . . Although Section 1, Rule 55 of the Rules of Court provides that the special civil action of certiorarimay only be invoked when "there is no appeal, nor any plain, speedy and adequate remedy in the (ordinary) course of law," this rule is not without exception. The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy — not the mere absence — of all other legal remedies and the danger of failure of Justice without the writ that usually determines the propriety of certiorari.’"

Private respondent’s act of filing a petition for certiorari while its motion to approve supersedeas bond was pending before the court a quo, cannot be a case of forum shopping or double dealing. In Valencia v. Court of Appeals, 9 it was held:jgc:chanrobles.com.ph

". . ., that certiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons. Also, the fact that the losing party had appealed from the judgment does not bar the certiorari action filed in respondent court as the appeal could not be an adequate remedy from such premature execution.

That petitioner could have resorted to a supersedeas bond to prevent execution pending appeal, as suggested by the two lower courts, is not to be held against him. The filing of such bond does not entitle him to the suspension of execution as a matter of right. It cannot, therefore, be categorically considered as a plain, speedy and adequate remedy. Hence, no rule requires a losing party so circumstanced to adopt such remedy in lieu or before availment of other remedial options at hand.

Furthermore, a rational interpretation of Section 3, Rule 39 should be that the requirement for a supersedeas bond presupposes that the case presents a presumptively valid occasion for discretionary execution. Otherwise, even if no good reason exists to warrant advance execution, theprevailing party would unjustly compel the losing party to post a supersedeas bond through the simple expedient of filing a motion for, and the trial court improvidently granting, a writ of execution pending appeal although the situation is violative of Section 2, Rule 39 . . ."cralaw virtua1aw library

WHEREFORE, the decision appealed from is AFFIRMED, the petition for review is DENIED.

SO ORDERED.

international school vs. ca 368 philippine reports 79

LIEZL CO,

Petitioner,

- versus -

HAROLD LIM y GO and AVELINO UY GO,

Respondents.

G.R. Nos. 164669-70

Present:

QUISUMBING,* J.,

CARPIO,

Chairperson,

CHICO-NAZARIO,

PERALTA, and

ABAD,** JJ.

Promulgated:

October 30, 2009

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

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Order,[1] dated 11 February 2004, later upheld in a subsequent Order[2] dated 29 June 2004, bothrendered by Branch 45 of the Regional Trial Court (RTC) of Manila, dismissing Criminal Cases No. 01-197839 and No. 03-213403 against respondents Harold Lim y Go (Lim) and Avelino Uy Go (Go), respectively, for violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.[3]

On 6 December 2001, agents from the National Bureau of Investigation (NBI) raided a commercial establishment named A-K Video Store, located at 1214 Masangkay Street, Manila. They had acted upon the information relayed by complainant Liezl Co (Co) that cell cards that were stolen from her on 26 November 2001 were being sold at A-K Video Store. The store was owned by Go. Lim, who was found administering the store at the time of the raid, was arrested. In all, a total of thirty (30) boxes containing cell cards worth P332,605.00 were seized from the store.[4]

After Inquest proceedings were conducted, the City Prosecutor’s Office of Manila issued a Resolution dated 7 December 2001 recommending the prosecution of Lim for violation of Presidential Decree No. 1612.[5] On 7 March 2003, an Information[6] was filed before the RTC of Manila charging Lim with violation of Presidential Decree No. 1612, to wit:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, withintent to gain for himself or for another, did then and there willfully and feloniously possess, keep, conceal, receive, acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00 Globe cell card valued at P332,605.00 and five (5) pcs. Globe cell card valued at P1,105.00, all in the total amount of P333,710.00 belonging to LIEZL CO y CO, which said cell cards, said accused knew or should have known to have been the subject/proceeds of the crime of Theft or Robbery.

Lim moved for a reinvestigation of his case before the Office of the City Prosecutor of Manila, which was granted by the RTC on 25 April 2002.[7] The arraignment that was initially scheduled on 21 November 2002 was rescheduled on 22 January 2003,[8] and further rescheduled thereafterpending the reinvestigation proceedings. Pending the reinvestigation of Lim’s case, petitioner filed a complaint against Go before the Office of the City Prosecutor of Manila for the violation of Presidential Decree No. 1612.[9] The reinvestigation of the case against Lim was conducted together with the preliminary investigation of Go.[10] In a Review Resolution,[11] dated 9 April 2003, the Office of the City Prosecutor of Manila reaffirmed its findings of probable cause againstLim and recommended the prosecution of Go. The dispositive part of the Review Resolution reads:

WHEREFORE, it is recommended that Criminal Case No. 01-197839 be remanded back to court for further proceedings. It is likewise recommended that the attached information for Violation of P.D. 1612 against respondent Avelino Uy Go be approved.[12]

Accordingly, the Information[13] against Go was filed on 25 April 2003. It reads:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, with intent to gain for himself or for another, conspiring and confederating with Harold Lim who was already charged in Court of the same offense docketed under Criminal Case No. 01-197839 and mutually helping each other, did then and there willfully and feloniously possess, keep, conceal, receive and acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00 Globe cell card valued at P332,605.00 and five (5) pcs. P250.00 Globe cell card valued at P1,105.00, all in the total amount of P333,710.00 belonging to LIEZL CO CO, which said cell cards, said accused knew or should have known to have been the subject/proceeds of the crime of Theft or Robbery.

Respondents filed a Petition for Review with the Department of Justice assailing the Review Resolution, dated 9 April 2003.

On 15 July 2003, respondents moved for the consolidation of Criminal Cases No. 01-197839 and No. 03-213403 on the ground that these cases arose from the same series of incidents.[14] During the

hearing held on 16 July 2003, the RTC granted the motion and consolidated the criminal cases against respondents.[15]

On 16 January 2004, the Acting Secretary of the Department of Justice, Ma. Merceditas N. Gutierrez, issued a Resolution[16] reversing the Review Resolution dated 9 April 2003 of the Officeof the City Prosecutor of Manila. The dispositive part of the Resolution reads:

ACCORDINGLY, the resolution appealed from is hereby REVERSED and SET ASIDE. The City Prosecutor of Manila is directed to withdraw forthwith the informations for violation of PD No. 1612 filed in the court against respondents Harold G. Lim and Avelino Uy Go and to report the action taken hereon within ten days from receipt hereof.[17]

On 27 January 2004, Assistant Prosecutor Yvonne G. Corpuz filed a Motion to Withdraw Informations[18] seeking the dismissal of the cases filed against respondents pursuant to the Resolution of the Acting Secretary of the Department of Justice dated 16 January 2004 directing the prosecutor to move for the withdrawal of the Informations filed against respondents.

On 11 February 2004, the date set by the RTC for the arraignment of the respondents and for pre-trial, the respondents were arraigned, and the prosecution and the defense marked their evidence and submitted their stipulations of facts. Thereafter, the defense counsel orally moved for the dismissal of the case on the ground that the Office of the City Prosecutor of Manila, through Assistant Prosecutor Corpuz, had already filed a Motion to Withdraw Informations on 27 January 2004. Private prosecutor Lodelberto Parungao opposed the motion to dismiss on the ground that the Resolution of the Acting Secretary of Justice dated 16 January 2004 was not binding upon the Court. Nevertheless, in an Order[19] dated 11 February 2004, the RTC ordered the dismissal of Criminal Cases No. 01-197839 and No. 03-213403 on the ground that the Office of the City Prosecutor of Manila and the Department of Justice would not prosecute these cases, to wit:

After considering the respective stands of the prosecution and the defense as well as the records of this case, this Court is of the considered view that the Motion To Dismiss by the accused is meritorious and should be granted. If this Court will proceed with these criminal cases, the prosecution thereof will naturally be under the direct control and supervision of Public Prosecutor

Antionio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an awkward, if not precarious situation, since he will be going against the very Orders of his own Office and the Department of Justice which want the Informations withdrawn. If the City Prosecutor’s Office of Manila and the Department of Justice will not prosecute these cases for the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed out by counsel for the accused, what remains is only the civil aspect of these cases.[20] (Emphasis ours.)

The dispositive part of the said Order reads:

WHEREFORE, premises considered, and finding the Motion To Dismiss by the accused through counsel to be meritorious, the same is hereby GRANTED and let the herein Criminal Cases Nos. 01-197839 and 03-213403 be DISMISSED.

As moved by the private prosecutor, he is given the period allowed by the Rules of Court to file the necessary pleading with respect to this Order of the Court from receipt hereof.

As further moved by the private prosecutor, Atty Lodelberto S. Parungao, that the complainant be allowed to present evidence on the civil aspect of these cases on the ground that the civil actions inthese cases were deemed instituted with the criminal actions and that there was no reservation made to file a separate civil action and therefore the civil cases remain pending with this court since extinction of the penal action does not carry with it extinction of the civil action, and over thevigorous objection by counsel for the accused Atty. Teresita C. Marbibi who insisted that the dismissal of the herein criminal cases carried with it the dismissal also of the civil aspect thereof, the said motion by the private prosecutor is hereby GRANTED and he may present evidence on the civil aspect of these cases on March 18 and March 25, 2004 both at 8:30 a.m. Considering the manifestation by Atty. Marbibi that she will not participate in said hearings, let the presentation ofevidence for the complainant be made ex-parte without objection from the defense counsel.[21]

Petitioner filed a Motion for Reconsideration[22] dated 12 March 2004, which the RTC denied in an Order[23] dated 29 June 2004. The dispositive part of the Order reads:

WHEREFORE, premises considered, the private complainants’ subject Motion for Reconsideration is hereby DENIED for lack of merit.[24]

On 2 July 2004, petitioner filed a Petition for Certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 84703, which sought the reversal of the Resolution dated 16 January 2006 of the Acting Secretary of the Department of Justice directing the Office of the City Prosecutor of Manila to withdraw the informations filed against the respondents.[25] This petition was still pending with the Court of Appeals when the petitioner filed the present petition with the Supreme Court assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC dismissing the criminal complaints against respondents. The present Petition, filed under Rule 45 of the Rules of Court, raises the following questions of law[26]:

I

BY THE PRESENT APPEAL BY CERTIORARI, ARE THE RIGHTS OF THE TWO (2) ACCUSED AGAINST DOUBLE JEOPARDY VIOLATED, CONSIDERING THAT THEY EXPRESSLY MOVED FOR THE DISMISSAL OF THE CRIMINAL CASES AGAINST THEM?

II

WAS THE ORDER OF THE PRESIDING JUDGE OF RTC45-MANILA DISMISSING CRIMINAL CASES NO. 01-197839 AND 03-213403 FOR THE SOLE REASON THAT THE DEPARTMENT OF JUSTICE ORDERED THE WITHDRAWAL OF THE CORRESPONDING INFORMATIONS, AND WITHOUT MAKING AN INDEPENDENT ASSESSMENT AND FINDING OF EVIDENCE, VALID?

The petition is meritorious.

Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is mandated to independently evaluate or assess the merits of the case. Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case. The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor, which the court may order the latter to producebefore the court; or any evidence already adduced before the court by the accused at the time themotion is filed by the public prosecutor.[27]

The failure of the trial court judge to independently evaluate and assess the merits of the case against the accused violates the complainant’s right to due process and constitutes grave abuse of discretion amounting to excess of jurisdiction. This Court must therefore remand the case to the RTC, so that the latter can rule on the merits of the case to determine if a prima facie case exists and consequently resolve the Motion to Withdraw Informations anew.[28]

In dismissing the criminal cases against the respondents, the RTC in this case relied on the unwillingness of the Department of Justice to prosecute these cases and the awkward situation in which the public prosecutor would find himself. The assailed Order dated 11 February 2004 reads:

After considering the respective stands of the prosecution and the defense as well as the records of this case, this Court is of the considered view that the Motion To Dismiss by the accused is meritorious and should be granted. If this Court will proceed with these criminal cases, the prosecution thereof will naturally be under the direct control and supervision of Public Prosecutor Antonio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an awkward, if not precarious situation, since he will be going against the very Orders of his own Office and the Department of Justice which want the Informations withdrawn. If the City Prosecutor’s Office of Manila and the Department of Justice will not prosecute these cases for the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed out by counsel for the accused, what remains is only the civil aspect of these cases.[29] (Emphasis ours.)

Moreover, the trial judge did not positively state that the evidence presented against the respondents was insufficient for a prima facie case, nor did the aforequoted Order include a

discussion of the merits of the case based on an evaluation or assessment of the evidence on record. In other words, the dismissal of the case was based upon considerations other than the judge’s own personal individual conviction that there was no case against the respondents. Thus, thetrial judge improperly relinquished the discretion that he was bound to exercise, and the Orders dated 11 February 2004 and 29 June 2004 are invalid for having been issued in grave abuse of discretion.[30]

Section 21, Article III of the Constitution prescribes the rule against double jeopardy:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

The following requisites must be complied with for double jeopardy to set in: (1) there is a valid complaint of information; (2) the complaint should be filed before a court of competent jurisdiction; (3) the accused has pleaded to the charge; and (4) the accused has been convicted or acquitted, or the case has been dismissed or terminated without the express consent of the accused.[31]

The Order dated 11 February 2004 of the RTC categorically stated that the defense counsel movedfor the dismissal of the cases against the respondents. Verily, respondents, through counsel, had given their express consent to the termination of the case on 11 February 2004. Therefore, the fourth requisite, which necessitates the conviction or acquittal of the accused or the dismissal of the case without his or her approval, was not met. Undoubtedly, the rule on double jeopardy is inapplicable to this case.

It is the conviction or the acquittal of the accused, or dismissal or termination of the case without the approval of the accused that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof.[32] At the heart of the policy is the concern that permitting the sovereign freely to subject the citizen to a second judgment for the same offense would arm the government with a potent instrument of oppression. The constitutionalprovision, therefore, guarantees that the State shall not be permitted to make repeated attempts

to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Nevertheless, the prosecution is entitled to one opportunity to require the accused to stand trial. Should the prosecution waive this right to a full-blown trial, the defendant has the right to have his or her trial completed by a particular tribunal.[33] If the trial is terminated before it is completed, and itis dismissed with the consent of the defendant, then double jeopardy will not attach.

Respondents alleged that petitioner is guilty of forum shopping since she filed the present petition assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC after she filed a Petition for Certiorari before the Court of Appeals docketed as CA-G.R. SP No. 84703 questioning the Resolution of the Acting Secretary of Justice dated16 January 2004. This argument is specious.

Section 5, Rule 7 of the 1997 Rules of Court, which disallows the deplorable practice of forum shopping, provides that:

SEC. 5. Certification against forum shopping.—The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filled therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filedor is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

Forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances and all raising substantially the same issues either pending in or already resolved adversely by some other court.[34] The test for determining forum shopping is whether in the two (or more) cases pending, there is an identity of parties, rights or causes of action, and relief sought.[35]

Petitioner in this case is not guilty of forum shopping since there is no identity of relief and cause of action in the present petition and in CA-G.R. SP No. 84703. The Petition for Certiorari filed by petitioners before the Court of Appeals questions the propriety of the Resolution of the Acting Secretary of Justice. The present petition docketed as G.R. Nos. 164669-70 seeks the reversal of the Orders dated 11 February 2004 and 29 June 2004 of the RTC. The determination made by the Acting Secretary of Justice that no prima facie case exists for the prosecution of the case is distinct from the judicial determination of the RTC that there is no probable cause for the continued hearing of the criminal case. These are two very different actions which should be separately assailed. The former is pursuant to the powers and functions of the Department of Justice as provided under Section 2, Chapter 1, Title III of the Revised Administrative Code:

Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions:

x x x x

(2) Investigate the commission of crimes, prosecute offenders and administer the probationand correction system.

On the other hand, the determination made by the RTC, which is being questioned in the present case, is pursuant to the judicial powers conferred by Section 1, Article VIII of the Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Consequently, a determination by the Court of Appeals that the prosecution of the criminal case must proceed will not affect whether or not this Court may or may not adjudge that the RTC shouldcontinue to hear the same criminal case.

Finally, this Court finds the proceedings conducted on 11 February 2004 highly unusual in that the RTC judge had arraigned the respondents before granting therespondent’s oral motion to dismiss solely based on the Resolution of the Acting Secretary of Justice dated 16 January 2004, a copy ofwhich was attached to the Motion to Withdraw Informations filed by the public prosecutor on 27 January 2004. The irregularity is even more pronounced when we consider the fact that the public prosecutor, whose office had filed a Motion to Withdraw Informations on 27 January 2004, agreedto have respondents arraigned on 11 February 2004. Added to the fact that the defense was allowed to move for the dismissal of the case even without a written motion, such irregularity arouses suspicions that the arraignment of the respondents after the public prosecutor was alreadyordered to withdraw the Informations was intended to aid respondents in raising the defense of double jeopardy should another case based on the same incidents be filed against them. While this Court does not make any conclusive findings of bad faith on the part of the RTC judge and the public prosecutor, it deems it proper to issue a reminder to officers of the court to avoid all appearances of suspicious or questionable behavior so as not to unduly strain public trust.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The Orders dated 11 February 2004 and 29 June 2004 of Branch 45 of the Regional Trial Court of the City of Manila dismissing Criminal Cases No. 01-197839 and No. 03-213403, are REVERSED and SET ASIDE. The records of this case shall be remanded to the trial court in order that it may resolve the Motion to Withdraw

Informations filed by the public prosecutor based on an independent assessment of the evidence in this case.

SO ORDERED.

ERLINDA I. BILDNER and MAXIMO K. ILUSORIO, Petitioners, vs. ERLINDA K. ILUSORIO, RAMON K. ILUSORIO, MARIETTA K. ILUSORIO, SHEREEN K. ILUSORIO, CECILIA A. BISUÑA, and ATTY. MANUEL R. SINGSON, Respondents.

G.R. No. 157384

June 5, 2009

FACTS:

A complaint for disbarment or disciplinary action against respondent was filed by petitioners for alleged gross misconduct, among other offenses. Said disbarment case arises from a case presided by Judge Antonio Reyes where respondent attempted to influence the outcome of the case as can be inferred from his acts evidenced by the following documents, to wit: (1) the transcript of the stenographic notes of the May 31, 2000 hearing in the sala of Judge Reyes when the judge made it of record that respondent offered Atty.Oscar Sevilla P500,000 to be given to Judge Reyes for a favorable decision; (2) the affidavit of Judge Reyes alleged that respondent, as soon as the case started, visited him about three times in his office, and made more than a dozen calls to his Manila and Baguio residences, some of which were even made late evenings; and (3) the affidavit of Atty. Sevilla confirmed that he was approached by the respondent to convince the judge, his close family friend, to rule in Atty. Singson’s favor.

ISSUE: WON respondent should be administratively disciplined or disbarred from the practice of law for the alleged misconduct in attempting to bribe Judge Antonio Reyes.

RULING:

The highly immoral implication of a lawyer approaching a judge––or a judge evincing a willingness––to discuss, in private, a matter related to a case pending in that judge’s sala cannot be over-emphasized. The fact that Atty. Singson did talk on different occasions to Judge Reyes, initially through a mutual friend, Atty. Sevilla, leads us to conclude that Atty. Singson was indeed trying to influence the judge to rule in his client’s favor. This conduct is not acceptable in the legal profession. Canon 13 of the Code of Professional Responsibility enjoins it:

Canon 13. A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence or gives the appearance of influencing the court.

While the alleged attempted bribery may perhaps not be supported by evidence other than Judge Reyes’ statements, there is nevertheless enough proof to hold Atty. Singson liable for unethical behavior of attempting to influence a judge, itself a transgression of considerable gravity.