Canon 5 & 12 (legal ethics)

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G.R. No. L-33037-42 August 17, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellantvs.DEMETRIO JARDIN, accused-appellee.

The Solicitor-General for plaintiff-appellant.

Marcos C. Lucero, Jr. for accused-appellee.

GUTIERREZ, JR., J.:

Two constitutional rights—speedy trial and freedom from double jeopardy—are interposed asdefenses by the accused in this petition for review on certiorari.

The petitioner asks us to review and annul the orders of the Court of First Instance of Quezon,Branch V, which dismissed the criminal cases against accuse Demetrio Jardin because hisconstitutional right to speedy trial was allegedly violated.

The criminal prosecutions originated from a letter complaint of the Provincial Auditor of Quezonrequesting the Provincial Fiscal to file the necessary criminal action under Article 217 of theRevised Penal Code against Demetrio Jardin for malversation of public funds thru falsification ofpublic documents on six counts.

The cases were assigned to Assistant Fiscal Meliton V. Angeles who set them for preliminaryinvestigation.The accused moved to postpone the investigation twice. On the third time that theinvestigation was re-set, the accused and his counsel failed to appear.

On the fourth resetting, the accused and his counsel again failed to appear. Inspire of theirabsence, the preliminary investigation was conducted and shortly afterwards, six informationswere filed against the accused before the Court of First Instance of Quezon, Branch II, docketed

as Cases Nos. 16052 (0043-M), 16053 (0044-M), 16054 (0045-ML 16055 (0046-M), 16056(0047-M), and 16057 (0048-M). The arraignment was set for May 9, 1967.

The records show that from May 9, 1967, the arraignment was re-set for June 6; then re-set forJune 26; then from August 16, the same was re-set for September 5, all because of the motionsfor postponement filed at the instance of the accused. (Original records [0043-M] pp. 54, 61, 66and 69).

When the arraignment of the accused was called on September 5, 1967, counsel for the accusedverbally moved for reinvestigation on the ground that the accused was not given the opportunityto present his defense during the preliminary investigation. This was granted by the court and thefirst reinvestigation was set on November 24, 1967. On this date, however, the InvestigatingFiscal motu proprio postponed said reinvestigation due to the non-appearance of accused and hiscounsel and re-set the date for December 21, 1967.

A series of postponements was again filed by the accused causing further. delays of thereinvestigation. On June 27, 1968, accused and his counsel appeared together but requested fora period of fifteen (15) days within which to file a memorandum.

In view of the expiration of the 15-day period, the Investigating Fiscal filed a manifestation beforethe court that the records of these cases be returned and the trial on the merits of the same beset.



The court without acting on said manifestation, issued an order transferring the six (6) cases tothe new branch (Branch V) of the Court of First Instance at Mauban, Quezon. Upon receipt by thelatter of the records of these cases, the arraignment and trial were set for December 3, 1968.

On the latter date, the counsel for the accused sought again the postponement of the arraignmentand this was followed by more postponements, all at the instance of the accused. (Original

records, [0043-M] pp. 90,93,120 and 125).

On March 31, 1969, counsel for the accused moved for the postponement of the arraignment andrequested the court that the records be returned again to the Office of the Fiscal for furtherreinvestigation. This was granted and the reinvestigation was again set for May 5, 1969. Theaccused and his counsel, however, failed to appear and thus, the said reinvestigation was re-setfor June 2, 1969. On this date, counsel for accused requested that he be given five (5) dayswithin which to file a written sworn statement of the accused which would constitute the defenseof the latter, subject to the cross-examination of the Investigating Fiscal.

Considering the fact that the period to file such sworn statement had already expired withoutanything being filed, the records of the cases were returned to the court which set said cases forarraignment and trial on September 2, 1970. On this date, the accused again moved for

postponement.

When these cases were called for arraignment on September 8, 1970, Demetrio Jardin, pleadednot guilty to the crime as charged, after which he requested that the trial be postponed and re-setfor September 29, 1970.

On September 29, 1970, the trial scheduled on that day was postponed again on motion ofcounsel for the accused. The trial was re-set for October 12, 1970, with notice to both parties.

On October 12, 1970, when the said criminal cases were called for hearing, no one appeared forthe prosecution, except a state witness, Mr. Cesar Alcala of the Provincial Auditor's office whoremained silent during the proceedings.

Invoking his client's constitutional right to speedy trial and seizing the opportunity to takeadvantage of the prosecution's failure to appear on that day, the defense counsel moved for thedismissal of the cases. The respondent court granted the oral motion for dismissal "for reasons ofconstitutional rights of the accused Demetrio Jardin. "

Two questions are now raised by the People in this appeal:

I. Considering the factual setting in the criminal cases at bar, was the respondentCourt correct in dismissing the cases and in predicating the dismissal on the rightof the defendant to a speedy trial?

II. Does the present appeal place the respondent accuse in double jeopardy?

The respondent court committed a grave abuse of discretion in dismissing the cases and inbasing the dismissal on the constitutional right of the accused to speedy trial. The right to aspeedy trial means that the accused is free from vexatious, capricious, and oppressive delays, itssalutary objective being to assure that an innocent person may be free from anxiety and expenseof a court litigation or, if otherwise, of having his guilt determined within the shortest possible timecompatible with the presentation and consideration of whatever legitimate defense he mayinterpose. (See Andres v. Cacdac, 113 SCRA 216)



[From a perusal of the facts, it is readily seen that all the delays in the prosecution of the caseswere caused by the accused himself.] All the postponements of proceedings were made at hisinstance and for his behalf. Hence, the constitutional right to a speedy trial afforded to an accusedby our Constitution cannot be invoked. From the start of the preliminary investigation of the casesup to the trial on the merits, the accused always managed to delay the proceedings throughpostponements and requests for reinvestigation. [It would, therefore, be a mockery of the criminal

justice system if the accused would be allowed to benefit from his own wrongdoings or tacticalmaneuvers intended to frustrate the administration of justice. By his own deliberate acts, he isdeemed to have waived or abandoned his right to a speedy trial. In the case of Andres v.Cacdac, 113 SCRA 216, we ruled:]

In this case, however, there was a waiver or abandonment of the right to aspeedy trial in the first case when the herein petitioners sought and obtainedseveral postponements of the trial: first, when they asked for the deferment of thearraignment because the accused Ladislao Tacipit was not present; second,when they asked for the postponement of the trial for March 5, 1968 upon theground that they have requested the Provincial Fiscal of Cagayan for areinvestigation of the case; and finally, when they agreed, with the prosecution,to postpone the hearing set for November 28, 1968 to January 4, 1969..

The dismissal of the criminal cases against the accused by the respondent court on the groundthat his right to speedy trial had beer violated was devoid of factual and legal basis. The orderdenying the motion for reconsideration is similarly infirm. There being no basis for the questionedorders, they are consequently null and void.

Would a reinstatement of the dismissed cases place the accused in double jeopardy?

In order that the protection against double jeopardy may inure to the benefit of an accused, thefollowing requisites must be present in the first prosecution: (a) a valid complaint or information;(b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant wasacquitted, or convicted, or the case against him was dismissed or otherwise terminated withouthis express consent. (Rule 117, Section 9, Rules of Court; People v. Ledesma, 73 SCRA 77).

The last requisite assumes a valid acquittal and a valid acquittal presupposes a valid judgment bya court of competent jurisdiction. Since in the instant cases, the dismissal was void for havingbeen issued without legal basis, it follows that the acquittal brought about by the dismissal is alsovoid. Hence, no jeopardy can attach from such acquittal. The act of respondent judge indiscussing the cases amounted to lack of jurisdiction which would prevent double jeopardy fromattaching. In the case of People v. Court of appeals (10 1 SCRA 450) we ruled:

Private respondents further argue that a judgment of acquittal ends the casewhich cannot be appealed nor reopened, otherwise, they would be put twice in

jeopardy for the same offense. That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution ofacquittal was a void judgment for having been issued without jurisdiction Nodouble jeopardy attaches, therefore. A void judgment is, in legal effect, no

judgment at all. (Comia v. Nicolas, 29 SCRA 492 [1969]) By it no rights aredivested Through it, no rights can be attains & Being worthless, all proceedingsfounded upon it are equally worthless It neither binds nor bars anyone. All actsperformed under it and all claims flowing out of it are void. (Gomez v.Concepcion, 47 Phil. 717, 722.[1925]; Chavez vs. Court of Appeals, 24 SCRA663, 685 [1968]; Parades v. Moya, 61 SCRA 526, [1974]). ...

We also note that the dismissall of the criminal cases was upon motion and with the wxpressconsent of respondent Demetrio Jardin. For double jeopardy to attach, the general rule is that thedismissal of the case must be without the express consent of the accused. (People v. Salico, 84



Phil. 722; People v. Obsania, 23 SCRA 1249; People v. Pilpa, 79 SCRA 81; and People v.Cuevo, 104 SCRA 312).

If the accused had been denied his right to speedy trial or if some other basic right had beenimpaired, the doctrine of waiver of the right to invoke double jeopardy would not apply even if theaccused had expressly moved for the termination of proceedings. In the instant case, however,

the defendant had deliberately used all the available dilatory tactics he could utilize and abusedthe principle that the accused must be given every opportunity to disprove the criminal charge.The doctrine of double jeopardy was never intended for this purpose.

Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke theattorneys for both the defense and the prosecution and to a certain extent, the court itselfbecause of the breach of duties to the courts and to the administration of justice apparent in thiscase.

The duties of an attorney found in Rule 138, Section 20 include: -

xxx xxx xxx

(d) To employ, for the purpose of maintaining the causes confided to him, suchmeans only as are consistent with truth and honor,...

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(g) Not to encourage either the commencement or the continuance of an actionor proceeding, or delay any man's cause, from any corrupt motive or interest.

xxx xxx xxx

The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to takeeffective counter measures to obviate the delaying acts constitute obstruction of justice.

As aptly stared:

12.09 Obstructing the administration of justice

An attorney as an officer of the court is called upon to assist in the dueadministration of justice. Like the court itself, he is an instrument to advance itscause. (Surigao Mineral Reservation Board vs. Cloribel, G.R. No. 11071, Jan. 9,1972, 31 SCRA 1; In re Climaco, G.R. Adm. Case No. 134-J, Jan. 21, 1974, 55SCRA 107) For this reason, any act on the part of a lawyer that obstructs,perverts or impedes the administration of justice constitutes misconduct and

justifies disciplinary action against him. (Cantorne vs. Ducasin 57 Phil, 23 [1932];De los Santos vs. Sagalongos 69 Phil. 406 [1940]).

Acts which amount to obstruction in the administration of justice may take manyforms. They include such acts as instructing a complaining witness in a criminalaction not to appear at the scheduled hearing so that the case against the client,the accused, would be dismissed. (Cantorne vs. Ducasin supra) asking a client toplead guilty to a crime which the lawyer knows his client did not commit, (Nuenov. Santos, 58 Phil. 557 [1933]) advising a client who is detained for a crime toescape from prison, (Cf. Medina v. Yan, G.R. No. 30978, Sept. 30, 1974)employing dilatory tactics to frustrate satisfaction of clearly valid claims, Pajares



vs. Abad Santos, G.R. No. 29543, Nov. 29, 1969, 30 SCRA 748) prosecutingclearly frivolous cases or appeals to drain the resources of the other party andcompel him to submit out of exhaustion (Samar Mining Co. vs. Arnado, G.R. No.22304. July 30, 1968) and filing multiple petitions or complaints for a cause thathas been previously rejected in the false expectation of getting favorable action.(Gabriel vs. Court of Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173;Ramos vs. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74 SCRA 345; Macias v.Uy Kim, G.R. No. 31174, May 30, 1972, 45 SCRA 251) Acts of this or similarnature are grounds for disciplinary action." Agpalo Legal Ethics, U.P. Law Center,1980 Edition, pp. 405-406)

The invocation of constitutional rights by the private respondent is without merit.

WHEREFORE, the petition is GRANTED and the questioned orders of the respondent court arehereby SET ASIDE. Criminal Cases Nos. 0043-M, 0044-M, 0045-M, 0046M, 0047-M, and 0048-M are reinstated and the proper regional trial court is ordered to proceed with all deliberate speedin these cases.

SO ORDERED.

CAPT. CONRADO M. CABAGUI, Petitioner , v. HON. COURT OF APPEALS, THIRD DIVISION,and THE PEOPLE OF THE PHILIPPINES, Respondents , EUGENIO M.MILLADO, Respondent .

SYNOPSIS

Under its Resolution of November 20, 1974, the Supreme Court ordered the third petition forreview of a Court of Appeals decision filed by respondent counsel expunged from the records,and required him "to SHOW CAUSE within (10 days from notice hereof why disciplinary actionshould not be taken against him for trifling with the Court by filing his third petition despiteprevious resolutions of this Court." The Supreme Court previously dismissed the second petitionwhich was in the guise of a new petition for certiorari with preliminary injunction but which merely

raised the same questions in his first petition (which was dismissed for late filing) seeking to setaside his client’s conviction of malversation of public funds.

For failure to submit the explanation within the required period, counsel was suspended from thepractice of law. Thereafter, he filed a petition for "Relief from Resolutions and Compliance"pleading inter alia "mistake and/or excusable negligence" and that he was seeking to render"optimum legal service" to his client, adding that he begged "the indulgence and tolerance of theCourt, and he condescendingly (sic) APOLOGIZES therefor . . ."cralaw virtua1aw library

The Supreme Court found that respondent was grossly negligent in failing to comply, within therequired period, with the Court’s show-cause resolution, and that his explanation for his havingfiled multiple petitions one after the other was unsatisfactory and untenable. However,considering the suspension so far served by respondent to be sufficient penalty for the serious

infractions committed by him, the Court lifted the suspension order.

SYLLABUS

1. LEGAL ETHICS; COUNSEL AND LITIGANTS WARNED AGAINST FILING MULTIPLEPETITIONS. — Litigants and counsels are cautioned not to file in the Supreme Court multiplepetitions for the same cause in the false expectation of getting favorable action from one divisionas against the adverse action of the other division, since such conduct would tend to trifle with the



Court and impede, obstruct, and degrade the administration of justice.

2. ID.; ID.; MISCONDUCT; FILING MULTIPLE PETITIONS. — Where respondent counsel in hismemorandum urged that either of his three petitions be given due course, notwithstanding that heknows that the Supreme Court’s resolutions denying and dismissing the first two petitions havelong become final and entries of judgment made, and that his third petition was orderedexpunged from the records, i.e. stricken from the records and therefore considered non-existent,it was held that his interjection of the same irrelevant matter denotes either a stubborn refusal tocomprehend or abide by the Court’s injunction that he cannot be filing one petition after anotherfor the same cause or worse a deliberate attempt to drag out the case and impede the executionof the judgment of conviction against his client which had become final and executory. Suchmisconduct on the part of a member of the bar cannot be tolerated.

3. ID.; ID.; SUSPENSION; SUSPENSION OF COUNSEL MAY BE LIFTED WHERE THECOUNSEL HAD BEEN SUFFICIENTLY PUNISHED. — Counsel’s gross negligence in failing tocomply with the Supreme Court’s show-cause order within the period required warrants hissuspension. However where counsel had been under suspension for about eight months, theCourt would be inclined to view with liberality his plea that "he has been sufficiently punished" andthat "his suspension . . . is substantial enough as to make him improve his professional service tohis client and duties to the bench," and would thus consider the suspension so far served by himas sufficient penalty for the serious infractions committed by him.

R E S O L U T I O N

TEEHANKEE, J. :

The Court finds respondent, Attorney Eugenio M. Millado, guilty of gross negligence in not havingcomplied with a "show-cause" resolution and of abusing the right to recourse to the Court by filingmultiple petitions for the same cause in the false expectation of getting favorable action from onedivision as against the adverse action of the other division. The Court deems his suspension from

the practice of law since February, 1975 as sufficient penalty and now lifts his suspension withthe warning that the commission in the future by respondent of the same or other infractions shallbe dealt with severely.

Under its Resolution of November 20, 1974, the Court, acting on a third petition for review of aCourt of Appeals decision affirming petitioner’s conviction of the crime of malversation of publicfunds, as filed on November 13, 1974 by his attorney, Eugenio M. Millado, with address atKoronadal, South Cotabato, ordered that said petition be expunged from the records and required"Atty. Eugenio Millado to SHOW CAUSE within ten (10) days from notice hereof why disciplinaryaction should not be taken against him for trifling with the Court by filing this third petition despiteprevious resolutions of this Court."cralaw virtua1aw library

In its previous Resolution of May 8, 1974 referring to the first two petitions filed by respondent

Millado on behalf of the same petitioner, 1 the Court had dismissed the second petition (filed onMarch 18, 1974) by respondent Millado in the guise of a new petition for certiorari with preliminaryinjunction but which merely raised again the same questions in his first petition (filed on January9, 1974) seeking to set aside petitioner’s conviction for malversation of public funds, by decisionof the court of first instance of Misamis Oriental dated June 20, 1963 as affirmed with modificationby the Court of Appeals’ decision dated June 8, 1973, for alleged lack of jurisdiction and prayingfor reversal of the conviction or for a reduction of his criminal liability by finding appellant-petitioner guilty of technical malversation only for the amount of P1,161.65. Said. first petition hadbeen denied on January 15, 1974 by virtue of the petition having been filed late by 4 months and25 days beyond the last date for filing which fell due since August 15, 1973. The Court therein



reiterated its warning to litigants and counsels against the filing of multiple petitions for the samecause in the false expectation of getting favorable action from one division as against the adverseaction of the other division, since "such conduct would tend to trifle with the Court and impede,obstruct and degrade the administration of justice," as follows:jgc:chanrobles.com.ph

"In a similar case (L-37411, Teodoro Fojas v. CA), the Court per its resolution of March 20, 1974admonished that ‘(L)itigants and their counsels are warned under pain of contempt anddisciplinary action that a party who has already failed to have a decision of the Court of Appealsset aside through a petition for review by certiorari with the denial of his petition (by the FirstDivision to which such petitions for review are assigned under the Court’s standing resolution ofNovember 15, 1973) should not under the guise of a special civil action file a second petition forthe same purpose of setting aside the same Court of Appeals’ decision to be acted upon by theSecond Division (to which special civil actions are assigned under the Court’s resolution ofNovember 15, 1973), and vice-versa, for such conduct would tend to trifle with the Court andimpede, obstruct and degrade the administration of justice.’" 2

For failure on the part of respondent to submit the explanation required under the Court’sResolution of November 20, 1974, notwithstanding the lapse on January 3, 1975 of the periodtherein given him, the Court per its Resolution of February 7, 1975 resolved to suspendrespondent from the practice of law effective immediately and until further action in the premises.

On April 14, 1975, respondent filed his "Petition for Relief from Resolutions and Compliance"pleading inter alia "mistake and/or excusable negligence" for his failure to take note of and attendto the filing of the explanation required in the Court’s Resolution of November 20, 1974 and thathe was seeking to render "optimum legal service" to petitioner and "to exhaust all remaining legalremedies." He added with reference to the third petition that "if, however, there is any portionthereof that can suggest that its filing trifles with this Honorable Court, he respectfully begs theindulgence and tolerance thereof, and he condescendingly (sic) APOLOGIZES therefor,respectfully assuring that he will be more cautious hereafter." 3

The Court set the petition for relief for hearing on June 2, 1975 on which date it heard respondentand further granted him time to submit his memorandum.

In respondent’s memorandum filed on June 27, 1975, he again urges that either of his threepetitions be given due course, notwithstanding that he well knows that the Court’s Resolutionsdenying and dismissing the first two petitions have long become final and entries of judgmentmade since March 12, 1974 and May 13, 1974, respectively, and that his third petition wasordered expunged from the records, i.e. stricken from the records and therefore considered non-existent. Respondent’s interjection of the same irrelevant matter here denotes either a stubbornrefusal to comprehend or abide by the Court’s injunction that he cannot be filing one petition afteranother for the same cause or worse a deliberate attempt to drag out the case and impede theexecution of the judgment of conviction against his client which had become final and executorysince August 15, 1973, date of finality of the Court of Appeals’ decision of June 8, 1973 affirmingthe conviction. Such misconduct on the part of a member of the bar cannot be tolerated.

The Court thus finds that respondent was grossly negligent, to say the least, in failing to comply

within the required period with the Court’s Resolution requiring him to show cause whydisciplinary action should not be taken against him for filing multiple petitions for the same causenotwithstanding the Court’s previous adverse resolutions. His original period to file the requiredexplanation expired on January 3, 1975 and more than a month elapsed thereafter without hishaving done anything until the Court took note thereof en February 7, 1975 and ordered hissuspension. As already indicated, the Court also finds respondent’s explanation for his havingfiled multiple petitions one after the other to be unsatisfactory and untenable.

Considering, however, that respondent has been under suspension since the Court’s Resolutionof February 7, 1975 since after respondent filed his belated compliance, the Court as per its



Resolution of April 21, 1975 ordered that respondent remain under suspension until it could hearthe matter on the merits, the Court is inclined to view with liberality respondent’s plea that "he hasbeen sufficiently punished" and that "his suspension .. is substantial enough as to make himimprove his professional service to his client and duties to the bench .." The Court will thusconsider the suspension so far served by respondent as sufficient penalty for the seriousinfractions committed by him.

ACCORDINGLY, respondent’s suspension from the practice of law is lifted effective as of thepromulgation of this Resolution with the warning that the commission in the future by respondentof the same infractions or other violations of his duties as a lawyer shall be dealt with severely.

LIBERATO V. CASALS, and JOSE T. SUMCAD, petitioners,vs.HON. VICENTE N. CUSI, JR., Presiding Judge of the Court of First Instance of Davao, BR.1, REBECCA T. PALANCA and GRECAN CO., INC., respondents.

Ortile Law Office for petitioners.

Delante, Orellan and Associates for private respondents.

R E S O L U T I O N

TEEHANKEE, J.:

The Court imposes a three-months suspension from the practice of law upon counsel ofrespondents for improper conduct and abuse of the Court's good faith by his acts in the case atbar manifesting gross disrespect for the Court's processes and a willful disregard of his solemnduty to conduct himself with all good fidelity to the Court and tending to embarrass gravely theadministration of justice.

Upon the filing on November 2, 1972 of the petition at bar for certiorari and prohibition with prayerfor writ of preliminary injunction, the Court as per its resolution of November 9, 1972 resolved,without giving due course to the petition, to require respondents to comment thereon within tendays from notice and to issue a temporary restraining order restraining respondent court interalia from proceeding with the hearing of the case 1 pending before it below.

Under date of December 8, 1972 , Atty. Leonido C. Delante as counsel for respondents, statingthat while he had received on November 15, 1972 notice of the Court's resolution of November 9,1972, "no accompanying copy of the petition has been attached thereto, hence the undersignedcounsel would not be able to prepare the comments of the respondents as directed in saidresolution without said copy." filed his first motion for a ten-day extension of time from receipt of

such petition within which to submit respondents' comment. The Court granted such firstextension per its resolution of December 15, 1972 .

Under date of December 14, 1972 , Atty. Primo O. Orellan on behalf of Delante, Orellan & Associates as counsel for respondents filed a verified second motion for extension of ten daysfrom December 15, 1972 within which to submit respondents' comment on the ground "2. That

Atty. L.C. Delante, counsel of record, got sick on December 6, 1972 and had not reported to workas yet" as per verified medical certificate attached to the motion and "3. That Atty. Delante has

just recovered from his ailment, and has requested the undersigned to specially make this motion



for another extension of TEN (10) days in order to enable him to finish the comments for therespondents."

Under date of December 28, 1972 , Atty. Leonido C. Delante filed a third motion for "a lastextension of fifteen days from December 29, 1972 to submit the required comment, stating "Thatthe undersigned counsel has already prepared the final draft of the desired comments, but due to

pressure of work in his office and matters occasioned by the Christmas season, the same has notbeen finalized and typed out in a clean copy," for filing by the expiry date on December 28, 1972.

The Court per its resolution of January 15, 1973 granted the said extensions totalling twenty-fivedays. Having noted respondents' failure to file their comment notwithstanding the numerousextensions sought by and granted to their counsel, which expired on January 12, 1973 , the Courtas per its resolution of April 12, 1973 resolved to require Atty. Delante as counsel for respondentsto explain and show cause within ten days from notice why they failed to file the requiredcomment.

Atty. Delante filed in due course his explanation dated May 7, 1973, wherein he claimed for thefirst time that "in view of (his) pressing professional commitments," he requested his clients "tohave the answer ... prepared by another lawyer for which reason (respondents) took delivery of

the records of the said case from his office and contracted the services of Atty. AntonioFernandez."

Atty. Delante goes on to claim that it was only upon receipt of the Court's resolution of April 12,1973 requiring his explanation that he learned that Atty. Fernandez who had contracted "toprepare an answer, underwent a surgical operation," attaching a copy of Atty. Fernandez' affidavittogether with a medical certificate which certified however to the latter's confinement at the DavaoDoctors' Hospital only from "Dec. 23-26, 1972 " and "(D)aily follow up: Dec. 26, 1972 Jan. 15,1973." Atty. Fernandez in his affidavit however stated that after his services had been retained byrespondents "sometime on December 12, 1972 " he "had been confined in the Davao Doctors'Hospital and subsequently operated on for sinusitis" (on December 23-26, 1972) and thatGregorio Cañeda, president of respondent Grecan Co. Inc. "saw me in the hospital and askedfrom me the answer and I told him that I may not be able to proceed and prepare the answer

because of the operation that I just had, hence he got the records of the case G.R. No. L-35766from me."

Atty. Delante further submitted the so-called "affidavit" dated May 5, 1973 of Gregorio Cañeda,president and general manager of respondent Grecan Co. Inc. supporting his belated claim nowthat their corporation contracted the services of Atty. Fernandez "to prepare the answer to meetthe deadline" and delivered the records of the case to the latter. The so-called "affidavit" ishowever not sworn to before any official authorized to administer oaths but merely carries thestatement "(T)hat the foregoing facts are true and correct as what actually transpired" under thesignature of one Rebecca T. Palanca (Secretary-Treasurer)."

Atty. Delante pleads that "it is far from (his) intention to cause any undue delay in the dispositionof the above-entitled case," and "(T)hat this is the first time it happened to him, and that if given

an opportunity to prepare the answer, he will try his best to do it within the period granted by thisHonorable Tribunal, and that he assures this Honorable Tribunal that there would be no repetitionof this similar incident in the future." He prays that his explanation be accepted and withoutblinking an eye — notwithstanding that the required comment has long been overdue for almostfour months at the time — that he "be given an opportunity to prepare the necessary answer forthe respondents."

Counsel for petitioners promptly filed their comments dated May 11, 1973 citing theinconsistencies and contradictions in Atty. Delante's explanation, opposing his plea to still be



allowed to file respondents' comment after his "gross and inexcusable negligence" and prayingthat the petition be considered submitted for resolution by the Court.

In an earlier resolution of July 9, 1973, the Court took action on the petition and dismissed thesame for insufficient showing of grave abuse of discretion on the part of respondent court indenying petitioners' motion to dismiss the case below and appeal in due course from any adverse

decision on the merits being the merits being the proper and adequate remedy.

The present resolution concerns Atty. Delante's explanation which the Court finds to beunsatisfactory.

Atty. Delante's present explanation that his failure to file respondents' comment is due to thefailure of the other lawyer, Atty. Fernandez, contracted by his clients at his instance because ofhis pressing professional commitments "to do so, because of a surgical operation," is unworthy ofcredence because it is contrary to the facts of record:

— In his previous motions for extension, he never mentioned his belated allegation nowthat another lawyer had been retained to file the required comment, and no other lawyer, muchless Atty. Fernandez, ever entered an appearance herein on behalf of respondents;

— In his second motion for extension, supra , Atty. Delante's law office cited as reason the factthat he had gotten sick on December 6, 1972 and had just recovered and needed the additional10-day extension "in order to enable him to finish the comments for the respondents;"

— In his third motion for a last 15-day extension, Delante assured the Court "that (he)has already prepared the final draft of the desired comments" and cited "pressure of work in hisoffice" and the Christmas Season for not having "finalized and typed out (the comments) in aclean copy" — which comments never came to be submitted to this Court;

— His present explanation is not even borne out by Atty. Fernandez' medical certificate whichshows that he was confined in the hospital for sinusitis only from December 23-26, 1972 andtherefore had sufficient time and opportunity to submit the comments by the extended deadlineon January 12, 1973;

— Atty. Fernandez' own affidavit as submitted by Atty. Delante belies the latter's claim that therecords of the case had been given to the former, for Atty. Fernandez swore therein that whenGregorio Cañeda of respondent corporation saw him at the hospital (sometime betweenDecember 23-26, 1972) he advised Cañeda of his inability to prepare the "answer" and Cañedagot back the records of the case from him;

— He submits no explanation whatsoever, why if his "final draft of the desired comments" was"already prepared" since year-end of 1972 and only had to be "finalized and typed out" he utterlyfailed to submit the same notwithstanding the lapse of over six months — and worse, in his"explanation" of May 7, 1973 asked yet for "an opportunity to prepare the anser [which] he will try

his best to do it within the period granted by the Honorable Tribunal" when he had utterly ignoredand disregarded the numerous extensions granted him which lapsed on January 12, 1973; and

— He likewise submits no explanation for his gross neglect in not seeing to it, assuming that Atty.Fernandez was to prepare the required comment, that the required comment was filed within thelast extension (that expired on January 12, 1973) secured by him from the Court on hisassurance that the final draft was ready and did nothing for three months until after he receivedthe Court's resolution of April 12, 1973 requiring his explanation.



The Court thus finds unsatisfactory Atty. Delante's explanation for his having allowed hisextended period to lapse without submitting the required comment nor extending to the Court thecourtesy of any explanation or manifestation for his failure to do so. His inaction unduly preventedand delayed for a considerable period the Court's prompt disposition of the petition. Worse, whenthis was noted and the Court required his explanation, he gave an explanation that is devious andunworthy of belief since it is contradicted by his own previous representations of record as well asby the "supporting" documents submitted by him therewith, as shown hereinabove.

Furthermore, notwithstanding the lapse of over six months which he let pass without submittingthe required comment which according to his motion of December 28, 1972 was "alreadyprepared" by him and was only to be typed in clean, Atty. Delante in his explanation still brazenlyasked the Court for a further period to submit respondents' comment which supposedly had beenreadied by him for submittal six months ago. His cavalier actions and attitude manifest grossdisrespect for the Court's processes and tend to embarrass gravely the administration of justice.

In Pajares vs. Abad Santos 2 the Court reminded attorneys that "There must be more faithfuladherence to Rule 7, section 5 of the Rules of Court which provides that "the signature of anattorney constitutes a certificate by him that he has read the pleading and that to the best of hisknowledge, information and belief, there is good ground to support it; and that it is not interposed

for delay" and expressly admonishes that "for a willful violation of this rule an attorney may besubjected to disciplinary action."

It should also not be necessary to remind attorneys of their solemn oath upon their admission tothe Philippine Bar, that they will do no falsehood and conduct themselves as lawyers according tothe best of their knowledge and discretion good fidelity to the courts and their clients.

The unsatisfactory explanation given by Atty. Delante as against the pleadings of record in thecase at bar evinces a willful disregard of his solemn duty as an attorney to employ in the conductof a case "such means only as are consistent with truth and honor, and never seek to mislead"the courts "by an artifice or false statement of false statement of fact or law." 3

The Court has ever stressed that a lawyer must do his best to honor his oath, as there would be a

great detriment to, if not a failure of the administration of justice if courts could not rely on thesubmissions and representations made by lawyers in the conduct of a case. As stated by theCourt in one case, "Time and time again, lawyers have been admonished to remember that theyare officers of the court, and that while they owe their clients the duty of complete fidelity and theutmost diligence, they are likewise held to strict accountability insofar as candor and honestytowards the court is concerned." 4

Hence, the Court has in several instances suspended lawyers from the practice of law for failureto file appellants' briefs in criminal cases despite repeated extensions of time obtained by them,(except to file the missing briefs), with the reminder that "the trust imposed on counsel inaccordance not only with the canons of legal ethics but with the soundest traditions of theprofession would require fidelity on their part."

Considering, however, that counsel's record shows no previous infractions on his part since hisadmission to the Philippine Bar in 1959, the Court is inclined to act in a spirit of leniency.

ACCORDINGLY, the Court hereby suspends Atty. Leonido C. Delante from the practice of law fora period of three (3) months effective from his receipt of notice hereof, with the warning thatrepetition of the same or similar acts shall be dealt with more severely. The clerk of court isdirected to circularize notice of such suspension to the Court of Appeals and all courts of firstinstance and other courts of similar rank.



Let copies of this resolution be filed in his personal record and furnished to the Integrated Bar ofthe Philippines.

Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ.,concur.

A. CARMINIA C. ROXAS, petitioner, vs. HON. COURT OF APPEALS and JOSE ANTONIO F.ROXAS, respondents.

D E C I S I O N

DE LEON, JR., J .:

Before us is a petition for review on certiorari of the Decision [1] dated April 21, 1999 andResolution [2] dated July 20, 1999 of the Court of Appeals nullifying the Orders [3] dated May 13,1998, May 19, 1998 and September 23, 1998 of the Regional Trial Court of Parañaque City,Branch 260, which found private respondent Jose Antonio F. Roxas liable to paysupport pendente lite and subsequently in contempt of court after failing to tender the requiredamount of support pendente lite .

The antecedent facts are as follows:

On November 4, 1997, petitioner Ma. Carminia C. Roxas filed with the Regional Trial Courtof Parañaque City, Civil Case No. 97-0523, which is an action for declaration of nullity of marriageon the ground of psychological incapacity on the part of her husband, Jose Antonio F. Roxas,private respondent herein, with an application for support pendente lite for their four (4) minorchildren. The case was raffled to Branch 257 of the Regional Trial Court of Parañaque Citypresided by Judge Rolando C. How. But the petitioner, soon thereafter, filed in the said RTCBranch 257 a Notice of Dismissal dated November 20, 1997, to dismiss the complaint, withoutprejudice, pursuant to the provision of Section 1, Rule 17, of the 1997 Rules of Civil Procedure,considering that summons has not yet been served and no responsive pleading has yet beenfiled.

The same complaint, now docketed as Civil Case No. 97-0608, was re-filed on November25, 1997. It was raffled in due course to Branch 260 of the Regional Trial Court of ParañaqueCity presided by Judge Helen Bautista-Ricafort.

On May 13, 1998, when the case was called for a pre-trial conference, the matter ofplaintiff’s (petitioner’s) application for support pendente lite of their four (4) minor children wastaken up. Judge Bautista-Ricafort received evidence on the application forsupport pendente lite . The private respondent and her counsel, Atty. Alberto Diaz, participated inthat proceedings by conducting an extensive cross-examination of the petitioner. The trial courtthen issued its Order dated May 13, 1998 declaring the proceedings on the application forsupport pendente lite terminated and deemed submitted for resolution; and as prayed for by theparties, also set the case for pre-trial on June 15, 1998 at 8:30 a.m.

On May 19, 1998, Judge Bautista-Ricafort, issued an Order [4]

granting the application forsupport pendente lite , the pertinent portion of which reads:

xxx xxx xxx

The plaintiff, testifying under oath, submitted Exhibit “A” itemizing the expenses incurred for thesupport of the children over a period of time during their stay at Ayala-Alabang; and showed thattheir total monthly average expense is P84,585.00, or P42,292.50 per month, perspouse. Interestingly, the defendant did not adduce any evidence to dispute the figures



presented to the Court by the plaintiff, nor did he present proof of his financial incapacity tocontribute more than 50% of the children’s school tuition fees.

The court has painstakingly reviewed the item included in Exhibit “A”, and found the samereasonable, xxx.

Under Art. 49 of the Family Code, there being no written agreement between the plaintiff and thedefendant for the adequate support of their minor children xxx, this Court finds the prayer forsupport pendente lite to be in order. Accordingly, the defendant is hereby ordered to contribute tothe support of the above-named minors, (aside from 50% of their school tuition fees which thedefendant has agreed to defray, plus expenses for books and other supplies), the sum ofP42,292.50 per month, effective May 1, 1998, as his share in the monthly support of the childrenuntil further orders from this Court. xxx. All expenses for books and other school supplies shallbe shouldered by the plaintiff and the defendant, share and share alike. Finally, it is understoodthat any claim for support-in-arrears prior to May 1, 1998, may be taken up later in the course ofthe proceedings proper.

On July 22, 1998, the petitioner filed a manifestation and motion praying the trial court to citeprivate respondent in contempt of court in accordance with Section 5, Rule 61 of the 1997 Rules

of Civil Procedure, after the latter failed to comply with the said Order dated May 19, 1998 of thetrial court. Private respondent, through his counsel, Atty. Alberto Diaz, filed a counter-manifestation and motion admitting that “xxx there is really no genuine issue as to his obligationand willingness to contribute to the expenses for the support of his minor children xxx. He simplywants to make sure that whatever funds he provides for the purpose will go to the expenses forwhich they are intended.” [5] Thus, he prayed that the manner and mode of payment of hiscontribution to the expenses of his minor children be modified such that he will pay directly to theentities or persons to which the payment for such expenses are intended. On September 23,1998, Judge Bautista-Ricafort issued an Order [6] directing the private respondent “to comply fullywith the Order of this Court dated May 19, 1998 by updating payment of his share in the supportof the minor children, pendente lite , covering the period May 1998 to September 1998, within five(5) days from his receipt hereof xxx under pain of legal sanctions if he still fails to do so. xxx.”

On September 28, 1998, or about four (4) months later, private respondent, through his newcounsel, Atty. Francisco Ma. Guerrerro, filed an Omnibus Motion (1) applying to be authorized todischarge Atty. Alberto Diaz as his counsel and to substitute him with the new counsel; (2) to re-open hearing on the Motion for Support Pendente Lite ; and (3) to temporarily stay execution of theOrders dated May 19, 1998 and September 23, 1998. The omnibus motion was set for hearingon October 2, 1998. Private respondent requested that before the omnibus motion is heard theMay 19, 1998 Order be temporarily suspended. When the presiding judge did not grant thatrequest of private respondent, the latter’s new counsel refused to proceed with the hearing of hisomnibus motion.

On October 8, 1998, Judge Bautista-Ricafort issued an Order giving private respondent ten(10) days to comply with the May 19, 1998 Order, otherwise, he would be cited for contempt ofcourt.

On October 23, 1998, private respondent filed with the Court of Appeals a petition forcertiorari questioning the Orders of the trial court dated May 19, 1998, September 23, 1998 andOctober 8, 1998.

Meanwhile, on November 27, 1998, Judge Bautista-Ricafort issued another Order, [7] thedispositive portion of which reads:

xxx xxx xxx

Accordingly, and on the strength of the provisions of Sec. 5 Rule 61 of the 1997 Rules of CivilProcedure, the defendant (herein private respondent) is hereby pronounced guilty of Contempt of



Court, and is hereby ordered arrested and confined at the City Jail of Parañaque City, MetroManila, without bail, and as long as he has not complied with and obeyed in full the Order of thisCourt dated May 19, 1998 by updating his monthly contribution of P42,292.50 for the period ofMay 1998 to the date, giving the said amount directly to the plaintiff, or depositing it with the Clerkof Court, who shall therefor (issue) the corresponding receipts.

xxx xxx xxxPrivate respondent was arrested by the agents of the National Bureau of Investigation (NBI)

on December 14, 1998 but he was released on the following day after the appellate courttemporarily enjoined Judge Bautista-Ricafort from enforcing her November 27, 1998 Order aswell as her Orders dated May 19, 1998, September 23, 1998, and October 8, 1998. When thetemporary restraining order lapsed on March 11, 1998, the respondent was again arrested byvirtue of a warrant of arrest issued by Judge Bautista-Ricafort. After depositing with the clerk ofcourt of the trial court the amount of support in arrears stated in the Orders of the trial court,private respondent was released from custody.

On April 21, 1999, the Court of Appeals rendered a Decision in favor of private respondent,the dispositive portion of which states:

WHEREFORE, being meritorious, the instant petition is GRANTED. Consequently, all theproceedings/actions taken by respondent Judge on the matter of support pendente lite in CivilCase No. 97-0608 (formerly Civil Case No. 97-0523) are hereby declared NULL and VOID, andsaid CASE is ordered RETURNED to Branch 257 of the Regional Trial Court of Parañaque City,for appropriate proceedings.

SO ORDERED. [8]

The appellate court nullified the Orders and the proceedings of the trial court for the reason thatthe certificate of non-forum shopping of the petitioner did not mention the prior filing of Civil CaseNo. 97-0523 before the sala of Judge How and the dismissal thereof without prejudice. Thedecision of the appellate court elaborated the reasons for the granting of the petition, to wit:

xxx xxx xxx

While a complaint may be dismissed by the plaintiff by filing a notice of dismissal at any timebefore service of the answer (Sec. 1, Rule 17), there is however a need to state the fact of priorfiling and dismissal thereof in the certification on non-forum shopping, in the event the complaintis refiled, as in this case. This must be so in order to prevent the plaintiff or principal party frominvoking Section 1 of Rule 17 in the hope that, if and when refiled, the complaint will be raffled toa more sympathetic judge.

To the mind of the Court, private respondent availed of Section 1 of Rule 17 not for any otherreason or purpose than to take the case out of the sala of Judge How and to have it assigned toanother. This belief finds support from the fact that private respondent’s lawyer and respondentJudge were classmates at the UP College of Law.

Not only that. While private respondent actually resides in Ayala Alabang, Muntinlupa City, it wasmade to appear in the complaint that she is a resident of Parañaque City, where respondentJudge is one of the RTC Judges. While the question of venue was not properly raised on time,this circumstance is being cited to support petitioner’s charge of forum-shopping.

xxx xxx xxx



Needless to say, forum-shopping merits such serious sanctions as those prescribed in Section 5,Rule 7 of the 1997 Rules of Civil Procedure. Considering, however, that when the complaint waswithdrawn, no substantial proceedings had as yet been taken by the court to which it was firstraffled, and that the dismissal thereof was then a matter or (sic) right, the Court is not inclined toimpose any of the said sanctions. Instead, for the peace of mind of petitioner who entertainssome doubts on the impartiality of respondent Judge, the annulment case should be returned toBranch 257 of the RTC of Parañaque City, to which it was originally raffled. And, to enable thePresiding Judge of said Branch to act on the matter of support pendente lite, which gave rise tothis petition for certiorari and disqualification, the proceedings/actions taken by respondent Judgerelative thereto should be set aside, the same having been attended with grave abuse ofdiscretion. [9]

xxx xxx xxx

In the instant petition the petitioner poses the following statement of issues, to wit:

I

DID THE HONORABLE COURT OF APPEALS ERR IN HOLDING THE HEREIN PETITIONERGUILTY OF FORUM SHOPPING?

II

DID THE HONORABLE COURT OF APPEALS ERR IN NULLIFYING JUDGE RICAFORT’SORDER OF SUPPORT PENDENTE LITE AND HER RELATED IMPLEMENTING ORDERSWHICH IT WAS HER JUDICIAL DUTY TO ISSUE UNDER ART. 49 OF THE FAMILY CODE

AND OTHER RELATED PROVISIONS OF LAW?

III

DID THE HONORABLE COURT OF APPEALS ERR IN NULLIFYING THE PROCEEDINGS ALREADY HELD BEFORE JUDGE RICAFORT AFFECTING HER QUESTIONED ORDERS, ATTHE SAME TIME IMPLIEDLY UPHOLDING THE VALIDITY OF THE REST OF THEPROCEEDINGS INCLUDING THE TRIAL ON THE MERITS OF THE CASE FOR ANNULMENTOF MARRIAGE?

IV

DID THE HONORABLE COURT OF APPEALS ERR IN ORDERING THAT CIVIL CASE NO. 97-0523 RAFFLED TO JUDGE RICAFORT BE “RETURNED” TO JUDGE HOW OF BRANCH 257OF THE RTC OF PARANAQUE CITY?

In other words, if a case is dismissed without prejudice upon the filing by the plaintiff of anotice of dismissal pursuant to Section 1 of Rule 17, before the service of the answer orresponsive pleading, would the subsequent re-filing of the case by the same party require that the

certificate of non-forum shopping state that a case involving the same issues and parties wasfiled and dismissed without prejudice beforehand? Would the omission of such a statement in thecertificate of non-forum shopping render null and void the proceedings and orders issued by thetrial court in the re-filed case?

It is our considered view and we hold that the proceedings and orders issued by JudgeBautista-Ricafort in the application for support pendente lite (and the main complaint forannulment of marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were not renderednull and void by the omission of a statement in the certificate of non-forum shopping regarding



the prior filing and dismissal without prejudice of Civil Case No. 97-0523 which involves the sameparties and issues.

Section 5 of Rule 7 of the 1997 Rules of Civil Procedure provides that:

SEC. 5. Certification against forum shopping. – The plaintiff or principal party shall certify underoath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworncertification annexed thereto and simultaneously filed therewith: (a) that he has not theretoforecommenced 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 pendingtherein; (b) if there is such other pending action or claim, a complete statement of the presentstatus thereof; and (c) if he should thereafter learn that the same or similar action or claim hasbeen filed or is pending, he shall report that fact within five (5) days therefrom to the courtwherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of thecomplaint or other initiatory pleading but shall be cause for the dismissal of the case withoutprejudice, unless otherwise provided, upon motion and after hearing. The submission of a falsecertification or non-compliance with any of the undertakings therein shall constitute indirectcontempt of court, without prejudice to the corresponding administrative and criminal actions. Ifthe acts of the party or his counsel clearly constitute willful and deliberate forum shopping, thesame shall be ground for summary dismissal with prejudice and shall constitute direct contemptas well as a cause for administrative sanctions. (n)

Forum shopping is an act of a party against whom an adverse judgment has been renderedin one forum of seeking and possibly getting a favorable opinion in another forum, other than byappeal or the special civil action of certiorari, or the institution of two or more actions orproceedings grounded on the same cause on the supposition that one or the other court wouldmake a favorable disposition. The language of the Supreme Court circular (now the above-quoted Section 5, Rule 7, 1997 Rules of Civil Procedure) distinctly suggests that it is primarilyintended to cover an initiatory pleading or an incipient application of a party asserting a claim forrelief.[10] The most important factor in determining the existence of forum shopping is the“vexation caused the courts and parties-litigants by a party who asks different courts to rule onthe same or related causes or grant the same or substantially the same reliefs.” [11]

Since a party resorts to forum shopping in order to increase his chances of obtaining afavorable decision or action, it has been held that a party cannot be said to have sought toimprove his chances of obtaining a favorable decision or action where no unfavorable decisionhas ever been rendered against him in any of the cases he has brought before thecourts. [12] Forum shopping exists where the elements of litis pendencia are present, and where afinal judgment in one case will amount to res judicata in the other. [13] For the principle of res

judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court ofcompetent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties,subject matter and causes of action. [14]

In the case at bar, there was no adverse decision against the petitioner in Civil Case No. 97-0523 which was the first case filed and raffled to the sala (Branch 257) of Judge How. Thedismissal without prejudice of the complaint in Civil Case No. 97-0523 at the instance of thepetitioner was pursuant to Section 1, Rule 17 of the 1997 Rules of Civil Procedure [15] consideringthat it was done before service of answer or any responsive pleading. The dismissal does notamount to litis pendencia nor to res judicata . There is no litis pendencia since the first casebefore Judge How was dismissed or withdrawn by the plaintiff (herein petitioner), withoutprejudice, upon her filing of a notice of dismissal, pursuant to Section 1, Rule 17 of the 1997Rules of Civil Procedure. To use the wording of that rule, Judge How’s order is one merely“confirming the dismissal” of the complaint by the plaintiff (herein petitioner). Neither is there res



judicata for the reason that the order of dismissal was not a decision on the merits but a dismissal“without prejudice”.

Thus, private respondent’s apprehension that the case was dismissed in order to betransferred to the sala of a judge who is allegedly more sympathetic to the petitioner’s cause isbaseless and not a valid reason to declare the petitioner guilty of forum shopping. First, thepetitioner is not assured that the case would be raffled to a more sympathetic judge. There arefive (5) RTC branches in Parañaque, namely, branch nos. 257, 258, 259, 260 and 274. Second,Judge Bautista-Ricafort of RTC of Parañaque, Branch 260, is presumed to be fair and impartialdespite private respondent’s claim that she is an alleged law school classmate of the petitioner’scounsel. In any event, at the slightest doubt of the impartiality of the said trial judge, privaterespondent could have filed before the same judge a motion for her inhibition on that ground. Butprivate respondent did not.

Private respondent is also estopped in questioning the proceedings and orders of JudgeBautista-Ricafort. He tacitly acknowledged the validity of the proceedings and the orders issuedby the said trial judge by participating actively in the hearing on the application forsupport pendente li te and by praying for the modification of the Order of May 19, 1998 in that heshould be allowed to directly pay to the persons or entities to which payments of such expensesare intended in connection with the required support pendente lite of their minor children. Privaterespondent cannot validly claim that he was not ably and sufficiently represented by his firstcounsel, Atty. Diaz, especially during the hearing on that incident on May 13, 1998 when hehimself was present thereat.

It is also too late for the private respondent to claim wrong venue in the Regional Trial Courtof Parañaque City as a alleged proof of forum shopping. He should have raised that ground inhis answer or in a motion to dismiss. But he did not, so it is deemed waived. Besides, petitioneris also a resident of Parañaque where the family of her parents reside.

Considering that the complaint in Civil Case No. 97-0523 was dismissed without prejudice byvirtue of the plaintiff’s (herein petitioner’s) Notice of Dismissal dated November 20, 1997 filedpursuant to Section 1, Rule 17, of the 1997 Rules of Civil Procedure, there is no need to state inthe certificate non-forum shopping in Civil Case No. 97-0608 about the prior filing and dismissalof Civil Case No. 97-0523. In Gabionza v. Court of Appeals, [16] we ruled that it is scarcelynecessary to add that Circular No. 28-91 (now Section 5, Rule 7 of the 1997 Rules of CivilProcedure) must be so interpreted and applied as to achieve the purposes projected by theSupreme Court when it promulgated that Circular. Circular No. 28-91 was designed to serve asan instrument to promote and facilitate the orderly administration of justice and should not beinterpreted with such absolute literalness as to subvert its own ultimate and legitimate objective orthe goal of all rules or procedure – which is to achieve substantial justice as expeditiously aspossible. The fact that the Circular requires that it be strictly complied with merely underscoresits mandatory nature in that it cannot be dispensed with or its requirements altogetherdisregarded, but it does not thereby interdict substantial compliance with its provisions under

justifiable circumstances. [17]

Thus, an omission in the certificate of non-forum shopping about any event that would notconstitute res judicata and litis pendencia as in the case at bar, is not fatal as to merit thedismissal and nullification of the entire proceedings considering that the evils sought to be

prevented by the said certificate are not present. It is in this light that we ruled in MaricalumMining Corp. v. National Labor Relations Commission [18] that a liberal interpretation of SupremeCourt Circular No. 04-94 on non-forum shopping would be more in keeping with the objectives ofprocedural rules which is to “secure a just, speedy and inexpensive disposition of every actionand proceeding.”

For a party to be adjudged guilty of forum shopping in the trial courts, a motion to dismiss onthe ground of either litis pendencia or res judicata must be filed before the proper trial court and ahearing conducted thereon in accordance with Section 5, Rule 7 of the 1997 Rules of CivilProcedure. The same ground cannot be raised in a petition for certiorari before the appellate



court while the main action in the trial court is still pending for the reason that such ground fora motion to dismiss can be raised before the trial court any time during the proceedings and isnot barred by the filing of the answer to the complaint. [19]

The petition for certiorari in the case at bar on the ground of alleged forum shopping in thetrial court is premature for the reason that there is an adequate and speedy remedy available inthe ordinary course of law to private respondent, i.e ., a motion to dismiss or a motion forreconsideration on the ground of either litis pendencia or res judicata before the trial court. Butprivate respondent did not file such a motion based on either of said grounds. And where theground is short of res judicata or litis pendencia , as in the case at bar, the Court of Appeals actedwith grave abuse of discretion amounting to excess of jurisdiction when it granted the petition forcertiorari filed by herein private respondent. The trial court should have been given anopportunity to rule on the matter of alleged forum shopping in consonance with the hierarchy ofcourts.

WHEREFORE , the Decision and Resolution dated April 21, 1999 and July 20, 1999respectively, of the Court of Appeals are hereby REVERSED, and the Orders dated May 13,1998, May 19, 1998 and September 23, 1998 of the Regional Trial Court of Parañaque City,Branch 260, are REINSTATED.

SO ORDERED.

THE PHILIPPINE NATIONAL BANK, plaintiff-appellant,vs.UY TENG PIAO, defendant-appellee.

Nat. M. Balboa and Dominador J. Endriga for appellant. Antonio Gonzales for appellee.

VICKERS, J.:

This is an appeal by the plaintiff a decision of the Court of First Instance of Manila absolving thedefendant from the complaint, without a special finding as to costs.

The appellant makes the following assignments of error:

The trial court erred:

1. In finding that one Mr. Pecson gave a promise to appellee Uy Teng Piao to condonethe balance of the judgment rendered against the said Uy Teng Piao and in favor of thePhilippine National Bank in civil case No. 26328 of the Court o First Instance of Manila.

2. In finding that merely in selling the property described in certificate of title No. 11274situated at Ronquillo Street, Manila, to Mariano Santos for P8,600 (Exhibit 2), theappellant had undoubtedly given the alleged promise of condonation to appellee Uy TengPiao.

3. In finding that the consideration of document Exhibit 1 is the condonation of thebalance of the judgment rendered in said civil case No. 26328.

4. In finding that said Mr. Pecson, granting that the latter has actually given such promiseto condone, could bind the appellant corporation.



5. In holding that the absence of demand for payment upon appellee Uy Teng Piao forthe balance of the said judgment from February 11, 1925 up to the year 1930 is "unasenal inequivoca una prueba evidente" of the condonation of the balance of the said

judgment.

6. In finding that by the sale of the said property to Mariano Santos for the sum of P8,600,

the said judgment in civil case No. 26328 has been more than fully paid even discountingthe sum of P1,300 which appellant paid as the highest bidder for the said property.

7. In declaring that the offer of appellee Uy Teng Piao as shown by Exhibits D and D-1,reflects only the desire of the said appellee Uy Teng Piao to avoid having a case with theappellant bank.

8. In finally absolving appellee Uy Teng Piao and in not sentencing him to pay theamount claimed in the complaint with costs.

On September 9, 1924, the Court of First Instance of Manila rendered a judgment in favor of thePhilippine National Bank and against Uy Teng Piao in civil case No. 26328 for the sum ofP17,232.42 with interest at 7 per cent per annum from June 1, 1924, plus 10 per cent of the sumamount for attorney's fees and costs. The court ordered the defendant to deposit said amountwith the clerk of the court within three months from the date of the judgment, and in case of hisfailure to do so that the mortgaged properties described in transfer certificates of title Nos. 7264and 8274 should be sold at public auction in accordance with the law and the proceeds applied tothe payment of the judgment.

Uy Teng Piao failed to comply with the order of the court, and the sheriff of the City of Manila soldthe two parcels of land at public auction to the Philippine National Bank on October 14, 1924 forP300 and P1,000 respectively.

On February 11, 1925, the Philippine National Bank secured from Uy Teng Piao a waiver of hisright to redeem the property described in Transfer Certificate of Title No. 8274, and on the samedate the bank sold said property to Mariano Santos for P8,600. 1awphil.net

Evidently the other parcel, Transfer Certificate of Title No. 7264, was subsequently resold by thebank for P2,700, because the account of the defendant was credited with the sum of P11,300. Inother words, the bank credited the defendant with the full amount realized by it when it resold thetwo parcels of land.

The bank brought the present action to revive the judgment for the balance of P11,574.33, withinterest at 7 per cent per annum from August 1, 1930.

In his amended answer the defendant alleged as a special defense that he waived his right toredeem the land described in transfer certificate of title No. 8274 in consideration of anunderstanding between him and the bank that the bank would not collect from him the balance of

the judgment. It was on this ground that the trial court absolved the defendant from the complaint.

In our opinion the defendant has failed to prove any valid agreement on the part of the bank notto collect from him the remainder of the judgment. The alleged agreement rests upon theuncorroborated testimony of the defendant, the pertinent part of whose testimony on directexamination was as follows:

P. En este documento aparece que usted, por consideracion de valor recibido del BancoNacional demandante en la presente causa, renuncia a su derecho de recompra de la



propiedad vendida por el Sheriff en publica subasta el catorce de octubre de milnovecientos veintecuatro a favor del Banco Nacional; ¿quiere usted explicar alHonorable Juzgado, cual es esta consideracion de valor? — R. Si, señor. Esto desde milnovecientos veintitres o mil novecientos veintecuatro, no recuerdo bien, me haba dicho elseñor Pecson, porque algunas veces yo no podia pagar esos intereses mensuales.Entonces me dijo Pecson, "¿como puede usted recibir alquileres y no paga ustedintereses?"

P. ¿Quien es ese señor Pecson? — R. Era encargado de este asunto.

P. ¿Que era el del Banco Nacional, usted sabe? — R. Era encargado de estastransacciones. Cuando tenia necesidad siempre llamaba yo al señor Pecson. Entonceshable al señor Pecson que somos comerciantes, algunas veces los alquileres no puedencobrarse por anticipado.

Sr. ENDRIGA. No es responsiva la contestacion a la pregunta.

Sr. GONZALEZ. Si esta explicando y no ha terminado el testigo su contestacion.

JUZGADO. Que la termine.

TESTIGO. Me dijo el señor Pecson que es cosa mala para mi "¿por que usted cobraalquileres y no paga los intereses? Mejor deje usted ya todos sus bienes para cubrir susdeudas.

P. El señor Pecson le dijo a usted "mejor deje usted ya todos sus bienes," ¿a que bienesse referia el ? — R. Al terreno de Ronquillo y al terreno de Paco.

P. ¿Cual de esos terrenos, el de Ronquillo o el de Paco, el que se refiere aqui en elExhibit 1? — R. Paco, primeramente, los dos ambos.

P. Pero este Exhibit 1, ¿a que se refiere; al de Paco o al de Ronquillo? — R. Parece quePaco.

P. ¿No recuerda usted muy bien? — R. No recuerdo.

P. Y cuando le dijo a usted el señor Pecson mejor que dejara todos sus bienes, ¿le dijo austed a favor de quien iba usted a dejar sus bienes? — R. Al Banco Nacional.

P. ¿Y que le dijo a usted, si le dijo a usted algo el señor Pecson con respecto al saldodeudor que usted todavia era en deber a favor del Banco Nacional? — R. No recuerdomas; pero mas o menos de catorce mil pesos.

P. ¿Que le dijo el con respeto al saldo, si el cobraria todavia o se le condonaria?

Sr. ENDRIGA. Es alternativa la pregunta. Me opongo.

JUZGADO. Cambiese la pregunta.

P. ¿Que le dijo a usted con respeto al saldo, una vez otorgado este Exhibit 1?

SR. ENDRIGA. La pregunta no tiene ninguna base. Nos openemos.



Sr. GONZALES. Si dice el que se havian vendido todos los terrenos.

JUZGADO. Puede contestar.

Sr. ENDRIGA. Excepcion.

R. Me dijo que para que usted no cobre alquileres y no pague intereses deje usted esosterrenos de Ronquillo y terreno de Paco para cubrir ya todas mis deudas. Entonces dijeya, si, como yo tengo buena fe con este Banco. Hasta que al fin yo dije que queria yocomprar.

P. Cuando usted firmo el once de febrero de mil novecientos veintecinco este documentoExhibit 1, ¿recibio usted algun centimo de dinero del Banco? — R. Nada, absolutamente.

When asked on cross-examination if Pecson was not in Iloilo at the time of the execution ofdefendant's waiver of his right to redeem, the defendant answered that he did not know; askedwhen Pecson had spoken to him about the matter, the defendant replied that he did notremember.

One of the attorneys for the plaintiff testified that the defendant renounced his right to redeem theparcel of land in Calle Ronquillo, Exhibit 1, because a friend of the defendant was interested inbuying it.

The bank ought to have presented Pecson as a witness, or his deposition, if he was not residingin Manila at the time of the trial.

With respect to the testimony of the bank's attorney, we should like to observe that although thelaw does not forbid an attorney to be a witness and at the same time an attorney in a cause, thecourts prefer that counsel should not testify as a witness unless it is necessary, and that theyshould withdraw from the active management of the case. (Malcolm, Legal Ethics, p. 148.) Canon19 of the Code of Legal Ethics reads as follows:

When a lawyer is a witness for his client, except as to merely formal matters, such as theattestation or custody of an instrument and the like, he should leave the trial of the caseto other counsel. Except when essential to the ends of justice, a lawyer should avoidtestifying in court in behalf of his client.

Defendant's testimony as to the alleged agreement is very uncertain. There is no mention inExhibit 1 as to such an agreement on the part of the bank. Exhibit 1 relates only to the land inCalle Ronquillo. If Pecson had made any such agreement as the defendant claims, it isreasonable to suppose that he would have required the defendant to waive his right to redeemboth parcels of land, and that the defendant, a Chines business man, would have insisted uponsome evidence of the agreement in writing. It appears to us that the defendant waived his right toredeem the land in Calle Ronquillo, because a friend of his wished to purchase it and was willing

to pay therefor P8,600, and the bank agreed to credit the defendant with the full amount of thesale.

Furthermore, if it be conceded that there was such an understanding between Pecson and thedefendant as the latter claims, it is not shown that Pecson was authorized to make any suchagreement for the bank. Only the board of directors or the persons empowered by the board ofdirectors could bind the bank by such an agreement. There is no merit in the contention that sincethe bank accepted the benefit of the waiver it cannot now repudiate the alleged agreement. Thefact that the bank after having bought the land for P1,000 resold it at the instance of the



defendant for P8,600 and credited the defendant with the full amount of the resale was asufficient consideration for the execution of defendant's waiver of his right to redeem.

For the foregoing reasons, the decision appealed from is reversed, and the defendant iscondemned to pay the plaintiff the sum of P11,574.38 with interest thereon at the rate of 7 percent per annum from August 1, 1930, and the costs of both instances.

Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Imperial and Butte, JJ., concur.

FELICITAS BERBANO, complainant, vs . ATTY. WENCESLAO BARCELONA, respondent .

D E C I S I O N

PER CURIAM :

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trustand confidence necessarily reposed by clients require in the attorney a high standard and

appreciation of his duty to his clients, his profession, the courts and the public. The bar shouldmaintain a high standard of legal proficiency as well as of honesty and fair dealing. Generallyspeaking, a lawyer can do honor to the legal profession by faithfully performing his duties tosociety, to the bar, to the courts and to his clients. To this end, nothing should be done by anymember of the legal fraternity which might tend to lessen in any degree the confidence of the

public in the fidelity, honesty and integrity of the profession. [1]

In a sworn Affidavit-Complaint dated March 11, 1999 filed before the Integrated Bar of thePhilippines (IBP), complainant Felicitas Berbano seeks the disbarment of Atty. WenceslaoBarcelona for Malpractice and Gross Misconduct Unbecoming a Lawyer, Dereliction of Duty andUnjust Enrichment. [2]Complainant alleges:

1. I am one of the heirs of Rufino Esteban Hilapo, owner of a 244-hectare lot situated at Alabang, Muntinlupa, which property is being claimed by Filinvest Dev. Corp. in a

case pending with the Commission on the Settlement of Land Problems (COSLAP),Quezon City. The heirs of REH has appointed Mr. PORFIRIO DAEN as theirattorney-in-fact giving him authority to prosecute the case for and in their behalf.

2. On January 26, 1999, Mr. Porfirio Daen was arrested by a Muntinlupa police on thestrength of an expired warrant of arrest-it was issued on February 1990-andsubsequently detained at the Muntinlupa City Jail, Tunasan, Muntinlupa City, untilhis release on February 18, 1999.

3. Since Mr. Daen needed the assistance of a lawyer for his release from incarceration,we tried to look for one. We told our friend Naty Sibuya, about the predicament ofMr. Daen, who recommended Atty. Wenceslao Barcelona to us, his wife beingNaty’s cousin/relative.

4. So on January 26, 1999, at about 10:30 in the evening, Atty. Wenceslao Barcelonaarrived at the Muntinlupa City Jail and conferred with Mr. Daen. We learned laterthat Mr. Daen has engaged the services of Atty. Barcelona for the latter to securethe release of the former from prison. After their conversation, Atty. Barcelona toldus that if you could produce the amount of FIFTY THOUSAND (P50,000.00) Pesoshe will cause the release of Mr. Daen from prison the following day. I told him that itwas already late in the evening and I cannot any more produce the amount. But heinsisted that I must produce even just a small amount. So, what I did was ask myrelatives who were with me at the time to contribute and we were able to raiseFIFTEEN THOUSAND SEVEN-HUNDRED (P15,700.00) Pesos. In the meantime,



Atty. Barcelona proceeded to Chowking Restaurant which is just located across thecity jail where he waited for us there.

5. At the aforesaid restaurant, I handed to Atty. Barcelona the amount who acceptedthe same. He reiterated his promise to secure the release of Mr. Daen the followingday. Before he left, he asked us to meet him at Max’ Restaurant at around 12:00noon at EDSA Crossing. He thereafter left because according to him, he would goand see somebody, (a justice) from the Supreme Court who could help the releaseof Mr. Daen. It was already about 12:30 in the early morning of January 27, 1999.

6. As agreed upon, I, together with Romana Soriano, proceeded to Max’Restaurant. We arrived at around 12:00 noon. Atty. Barcelona came at around 1:00P.M. He even told us that he just came from the Supreme Court where he “fixed”the case of Mr. Daen. It surprised me though, that he did not have with him anysingle document at the time. Then, I handed him a “pay-to-cash” check forTWENTY-FOUR THOUSAND (P24,000.00) Pesos, dated January 29, 1999. Wetold him that the check may be encashed on the said date. Although, he said thatthe Justices of the Supreme Court do not accept check he nonetheless, accepted itsaying that he will have the same rediscounted. We thereafter left.

7. The following morning, January 28, 1999, at around 7:00 o’clock Atty. Barcelonacalled me up by phone to say that since he was unable to have the checkrediscounted, I must produce the amount of P5,000.00 and give the amount to himat Max’ Restaurant at EDSA Crossing at around 12:00 noon. We were unable tomeet him because we arrived at about 1:00 o’clock already. Nonetheless, wewaited for him until 3:00 in the afternoon. Thereafter, I called him through his pagersaying that we were waiting for him at Max’. I also called up our house and inquire(sic) if a lawyer has called up. I was able to talk to my husband who informed methat a certain Atty. Barcelona called up. That Atty. Barcelona wanted to meet us atMcDonald’s at Barangka Drive, Mandaluyong. So we rushed to the place but hewas not there. I again paged him informing him that we were already at McDonald’sand to return my call through my cell phone. After a while, his wife called up toinform us to proceed to their house which was just five houses away fromMcDonald’s. When we reached their house, we were met by his daughter who

called her mother. We were ushered inside the house and after introducingourselves, we gave not only P5,000.00, but TEN THOUSAND (P10,000.00) Pesosin cash to his wife in the presence of his daughter. Then we went to Putatan,Muntinlupa, hoping that he might be there.

8. We arrived at Putatan, Muntinlupa at around 4:30 in the afternoon and there we saw Atty. Barcelona. We informed him that we left the P10,000.00 with his wife at theirhouse. Since Atty. Barcelona informed us that he could not secure the release ofMr. Daen because the check had not been encashed, Mr. Gil Daen, a nephew ofPorfirio Daen, gave him FIFTEEN THOUSAND (P15,000.00) Pesos in cash. I alsogave him an additional P1,000.00 for his gasoline expenses.

9. The next time that we saw Atty. Barcelona was on February 3, 1999, Wednesday ataround 6:00 in the evening at Putatan, Muntinlupa. He informed us that he just

came from the city jail where he had a conversation with Mr. Daen. He told us thathe is going to release Mr. Daen from prison tomorrow, February 4, 1999. However,in the morning of February 4, we learned from the wife of Atty. Barcelona when shereturned my call that her husband had left for Mindanao early that morning on boarda private plane owned by Chiongbian allegedly to attend a peace talk with theMuslims.

10. After more than a week, I went to Putatan, Muntinlupa, because I was informed bythe son of Mr. Daen that he saw Atty. Barcelona there. When I saw him, Iconfronted him about his undertaking to release Mr. Daen from prison, but he only



advised us not to worry and promised (again) that he will return the entire amount ofP64,000.00 more or less, on Thursday, February 18, 1999. But I never saw himagain since then. I have repeatedly paged him to return my call but he neverreturned any of my calls. [3]

In an Order dated April 15, 1999, Investigating Commissioner J. Virgilio A. Bautista of theCommission on Bar Discipline of the IBP, required respondent to submit his answer to thecomplaint, with a warning that he will be considered in default and the case will be heard ex parte ,if he fails to do so. [4] Despite due notice, [5] respondent failed to file his answer. Thus, complainantfiled a motion to declare respondent in default, [6] resolution of which was held in abeyance by theInvestigating Commissioner who required the parties to appear for hearing before theCommission on August 13, 1999. [7] On said date, respondent again failed to appear despite duereceipt of notice. [8] Commissioner Bautista was thus constrained to consider respondent in defaultand complainant was allowed to present her evidence ex parte . Complainant testified andaffirmed under oath the truthfulness and veracity of her Affidavit-Complaint. [9] Complainant alsomanifested that she will present the check in the amount of P24,000.00 [10] at the next date ofhearing.

Further hearings were set by the Commissioner, on October 1, 1999, November 19, 1999,October 12, 2001, December 14, 2001 and June 28, 2002, but both parties failed to appear onsaid dates despite due notice. [11]

Commissioner Bautista submitted his Final Report and Recommendation on December 23,2002 finding respondent guilty of malpractice and serious breach of the Code of ProfessionalResponsibility and recommending that respondent be disbarred and ordered to return tocomplainant the amount of P64,000.00. The IBP Board of Governors adopted CommissionerBautista’s findings but reduced the penalty to suspension from the practice of law for six years.

The Court disagrees with the IBP Board of Governors in reducing the penalty and upholdsthe findings and recommendation of Commissioner Bautista. Under the facts established bycomplainant, respondent should not only be suspended, but disbarred from practice.

The object of a disbarment proceeding is not so much to punish the individual attorneyhimself, as to safeguard the administration of justice by protecting the court and the public fromthe misconduct of officers of the court, and to remove from the profession of law persons whosedisregard for their oath of office have proved them unfit to continue discharging the trust reposedin them as members of the bar. [12]

In In re Almacen , the Court expounded on the nature of disbarment proceedings, viz.:

. . . Disciplinary proceedings against lawyers are sui generis . Neither purely civil nor purelycriminal, they do not involve a trial of an action or a suit, but rather investigations by the Courtinto the conduct of one of its officers. Not being intended to inflict punishment, [they are] in nosense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutortherein. [They] may be initiated by the Court motu propio . Public interest is [their] primaryobjective, and the real question for determination is whether or not the attorney is still a fit personto be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Courtmerely calls upon a member of the Bar to account for his actuations as an officer of the Court with

the end in view of preserving the purity of the legal profession and the proper and honestadministration of justice by purging the profession of members who by their misconduct haveprove[n] themselves no longer worthy to be entrusted with the duties and responsibilitiespertaining to the office of an attorney. . . . [13]

As in the Ricafort case, [14] herein respondent chose to forget that by swearing the lawyer’soath, he became a guardian of truth and the rule of law, and an indispensable instrument in thefair and impartial administration of justice – a vital function of democracy a failure of which isdisastrous to society. [15] In disbarment proceedings, the burden of proof rests upon thecomplainant, and for the court to exercise its disciplinary powers, the case against the respondent



must be established by clear, convincing and satisfactory proof. [16] Considering the seriousconsequence of the disbarment or suspension of a member of the Bar, this Court has consistentlyheld that clear preponderant evidence is necessary to justify the imposition of the administrativepenalty. [17]

Complainant’s evidence consists solely of her Affidavit-Complaint and testimony before theCommission attesting to the truth of the allegations laid down in her affidavit. CommissionerBautista and the IBP Board of Governors found her testimony together with her affidavit sufficientto support the finding that respondent committed the acts complained of . The matter ofassigning values to the testimony of witnesses is best done by the investigating body (which inthis case is the Investigating Commissioner) because unlike appellate courts, it can weigh suchtestimony in light of the demeanor, conduct and attitude of the witnesses at the trial. [18] Witnessesare weighed not numbered, and the testimony of a single witness may suffice if trustworthy andreliable. [19]

The non-presentation of the check given to respondent does not affect complainant’s caseas it will merely serve to corroborate her testimony and there is no law which requires that thetestimony of a single witness needs corroboration except where the law expressly mandates suchcorroboration [20]which is not so required in administrative cases.

The act of respondent in not filing his answer and ignoring the hearings set by theInvestigating Commission, despite due notice, emphasized his contempt for legalproceedings. Thus, the Court finds no compelling reason to overturn the InvestigatingCommissioner’s judgment.

Respondent is guilty of culpable violations of several Canons of the Code of ProfessionalResponsibility, to wit:

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

CANON 7 – A lawyer shall at all times upholds the integrity and dignity of the legal profession,and support the activities of the integrated bar.

CANON 11 – A lawyer shall observe and maintain the respect due to the courts and to judicialofficers and should insist on similar conduct by others.

CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may comeinto his possession.

Rule 16.01 – A lawyer shall account for all money or property collected or received for or from theclient.

The Code exacts from lawyers not only a firm respect for law, legal processes and the courtsbut also mandates the utmost degree of fidelity and good faith in dealing with clients and themoneys entrusted to them pursuant to their fiduciary relationship. Instead of promoting respectfor law and the legal processes, respondent callously demeaned the legal profession by takingmoney from a client under the pretext of having connections with a Member of this Court.

The Court has taken into consideration the penalties imposed in other administrative casesinvolving similar offenses, e. g.:

In Judge Angeles vs. Atty. Uy, Jr. ,[21] the respondent was suspended from the practice of lawfor one month for failing to promptly report and remit the amount of P16,500.00 he received onbehalf of his client.



In Gonato vs. Atty. Adaza ,[22] the respondent was suspended from the practice of law for sixmonths for charging his clients the amount of P15,980.00 as filing fees when in fact no such feeswere due.

In Dumadag vs. Lumaya ,[23] the Court ordered the indefinite suspension of a lawyer for notremitting to his client the amount of P4,344.00 that he had received pursuant to an execution.

In Gatchalian Promotions Talents Pool, Inc., vs. Atty. Naldoza ,[24]

the respondent wasdisbarred for obtaining from his client the amount of US$2,555.00 allegedly as cash bond in anappealed case before this Court, when in fact no such amount has been paid or that the Courtrequired such payment.

In the present case, respondent collected money from the complainant and the nephew ofthe detained person in the total amount of P64,000.00 for the immediate release of the detaineethrough his alleged connection with a Justice of the Supreme Court. He deserves to be disbarredfrom the practice of law.

This is not the first time that respondent has been charged with and found guilty of conductunbecoming a lawyer. In Gil T. Aquino vs. Atty. Wenceslao C. Barcelona ,[25] respondentmisrepresented to the complainant that he could secure the restructuring of the complainant’sloan with the PNB through his connection with a certain Gonzalo Mericullo, legal assistant in the

PNB. Based on such misrepresentation, respondent asked and received the amount ofP60,000.00 from the complainant allegedly to be paid to the PNB. It turned out that there was nosuch employee in the PNB by the name Gonzalo Mericullo and the complainant’s property waseventually foreclosed. As in the present case, respondent did not appear before the IBPCommission on Bar Discipline despite receipt of the notices sent and duly received by him. Afterdue proceedings, the IBP Board of Governors found respondent guilty of professionalmisconduct, and recommended that he be suspended from the practice of law for six months andordered to render the accounting and restitute whatever remained of the P60,000.00 to thecomplainant. The Court adopted such finding and recommendation and respondent was orderedsuspended from the practice of law for six months, effective immediately.

Respondent has demonstrated a penchant for misrepresenting to clients that he has theproper connections to secure the relief they seek, and thereafter, ask for money, which willallegedly be given to such connections. In this case, respondent misrepresented to complainantthat he could get the release of Mr. Porfirio Daen through his connection with a Supreme CourtJustice. Not only that, respondent even had the audacity to tell complainant that the Justices ofthe Supreme Court do not accept checks.

In so doing, respondent placed the Court in dishonor and public contempt. In SurigaoMineral Reservation Board vs. Cloribel, [26] the Court expounded on a lawyer’s duty to the courts,viz.:

A lawyer is an officer of the courts; he is, “like the court itself, and instrument or agency toadvance the ends of justice.’ [People ex rel. Karlin vs. Culkin, 60 A.L.R. 851, 855]. His duty is touphold the dignity and authority of the courts to which he owes fidelity, ‘not to promote distrust inthe administration of justice.” [In re Sotto, 82 Phil. 595, 602]. Faith in the courts a lawyer shouldseek to preserve. For, to undermine the judicial edifice “is a disastrous to the continuity of the

government and to the attainment of the liberties of the people.” [Malcolm Legal and JudicialEthics, 1949 ed., p. 160]. Thus has it been said a lawyer that “[a]s an officer of the court, it is hissworn and moral duty to help build and not destroy unnecessarily that high esteem and regardtowards the courts so essential to the proper administration of justice.”

The Judiciary has been besieged enough with accusations of corruption andmalpractice. For a member of the legal profession to further stoke the embers of mistrust on the

judicial system with such irresponsible representations is reprehensible and cannot betolerated. Respondent made a mockery of the Judiciary and further eroded public confidence incourts and lawyers when he ignored the proceedings in the Aquino case and in the present



case. More so, when he misrepresented to complainant that he has connections with a Memberof the Court to accommodate his client and that Justices of the Court accept money. Indubitably,he does not deserve to remain a member of the Bar any minute longer.

The practice of law is a privilege burdened with conditions. Adherence to the rigid standardsof mental fitness, maintenance of the highest degree of morality and faithful compliance with therules of the legal profession are the conditions required for remaining a member of good standingof the bar and for enjoying the privilege to practice law. The Supreme Court, as guardian of thelegal profession, has ultimate disciplinary power over attorneys. This authority to discipline itsmembers is not only a right but a bounden duty as well . . . That is why respect and fidelity to theCourt is demanded of its members. [27]

WHEREFORE , for gross misconduct, respondent Wenceslao C. Barcelona is DISBARREDfrom the practice of law. His name is ordered STRICKEN from the Roll of Attorneys. He isfurther directed to return to complainant Felicitas Berbano the amount of Sixty Four ThousandPesos (P64,000.00) within thirty (30) days from notice of this Decision.

This Decision shall take effect immediately.

Let copies hereof be furnished the Office of the Bar Confidant, to be appended torespondent’s personal record; the Integrated Bar of the Philippines; the Office of the President;

the Department of Justice; the Philippines Judges Association; and all courts of the land for theirinformation and guidance.

SO ORDERED.

MANUEL S. SEBASTIAN, complainant,vs.ATTY. EMILY A. BAJAR, respondent.

D E C I S I O N

CARPIO, J. :

The Case

On 18 October 1991, Manuel S. Sebastian (complainant) filed a disbarment complaint against Atty. Emily A. Bajar (respondent) for "obstructing, disobeying, resisting, rebelling, and impedingfinal decisions of Regional Trial Courts, the Court of Appeals and of the Honorable SupremeCourt, and also for submitting those final decisions for the review and reversal of the DARAB, anadministrative body, and for contemptuous acts and dilatory tactics."

The Facts

Complainant alleged the following:

1. Respondent is a lawyer of the Bureau of Agrarian Legal Assistance (BALA) of theDepartment of Agrarian Reform who represented Fernando Tanlioco (Tanlioco) innumerous cases which raised the same issues. 1Tanlioco is an agricultural lessee of aland owned by complainant’s spouse and sister-in-law (landowners). The landownersfiled an Ejectment case against Tanlioco on the basis of a conversion order of the landuse from agricultural to residential. The Regional Trial Court (RTC) rendered judgmentordering Tanlioco’s ejectment subject to the payment of disturbance compensation. 2 TheRTC’s judgment was affirmed by the Court of Appeals 3 and the Supreme Court. 4



2. Respondent, as Tanlioco’s counsel, filed another case for Specific Performance toproduce the conversion order. The RTC dismissed the complaint due to res judicata andlack of cause of action. 5

3. Respondent filed a case for Maintenance of Possession with the Department of Agrarian Reform Adjudication Board. The case raised the same issues of conversion and

disturbance compensation.6

4. Respondent has violated Rule 10.03 of the Code of Professional Responsibility sinceshe misused the rules of procedure through forum-shopping to obstruct theadministration of justice. 7

On 18 November 1991, the Court issued a resolution requiring respondent to comment on thecomplaint lodged against her. 8

After a second Motion for Extension of Time to Submit Comment, 9 respondent submitted herComment alleging the following:

1. Complainant is not the real party-in-interest. He is also not authorized to prosecute thedisbarment suit. 10

2. Respondent has fulfilled allegiance to the "Attorney’s Oath" and performed duties inaccordance with Section 20 of Rule 138 of the Revised Rules of Court. 11

3. Respondent’s client, Tanlioco, merely availed of all legal remedies to obtain benefitssecured for him by law. 12

On 10 March 1992, complainant filed his Reply. Complainant alleged that respondent did notconfront the issues of her disbarment squarely but raised issues that were decided upon withfinality by the courts. 13

On 25 March 1992, the Court issued a Resolution requiring respondent to file a Rejoinder within10 days from notice. 14

On 3 June 1992, complainant filed a Manifestation dated 2 June 1992 stating that respondentfailed to comply with the 25 March 1992 Court Resolution to file a Rejoinder. 15

On 7 October 1992, the Court ordered respondent to show cause why she should not besubjected to disciplinary action for failure to comply with the Court’s 25 March 1992 Resolution.The Court also required respondent to Comment on the complainant’s 2 June 1992Manifestation. 16

On 3 February 1993, respondent filed a Manifestation alleging that she had substantiallycomplied with the Court’s orders relative to her defenses. She advised the Court that she hadtransferred to the Public Attorney’s Office and since she was no longer a "BALA lawyer," thecases involved in this proceeding had become moot and academic. 17

On 1 March 1993, the Court issued a Resolution stating that the administrative case againstrespondent "has not been mooted and nothing set out in her ‘Manifestation’ excuses her failure toobey this Court’s Resolutions of 25 March 1992 and 7 October 1992." 18 The Court had alsoresolved to impose a fine of P500 or imprisonment of five days and to require respondent tocomply with the 25 March 1992 and 7 October 1992 Resolutions. 19



On 24 August 1993, complainant filed a Manifestation stating that respondent had not compliedwith the Court’s orders. 20

On 29 September 1993, the Court issued a Resolution ordering the arrest of respondent fordetention at the National Bureau of Investigation (NBI) for five days. The Court reiterated thatrespondent should comply with the 25 March 1992 and 7 October 1992 Resolutions. 21

On 20 October 1993, the NBI arrested respondent. The NBI detained respondent for five daysand released her on 25 October 1993. 22

On 10 November 1993, the Court issued a Resolution referring the case to the Integrated Bar ofthe Philippines (IBP) for hearing and decision. 23

On 11 November 1993, respondent filed a Rejoinder. Respondent claimed that complainant hadno legal personality to file this case. 24 Respondent also alleged that she was merely protectingthe interest of Tanlioco as she was sworn to do so in her oath of office. Respondent contendedthat "she had comported herself as [an] officer of the court, at the risk of being disciplined by thelatter if only to impart truth and justice." 25

On 22 November 1995, Investigating Commissioner Plaridel C. Jose (Investigating CommissionerJose) submitted his report and recommendation to the IBP. Investigating Commissioner Joseenumerated respondent’s violations of the Code of Professional Responsibility that rendered herunfit to continue the practice of law:

1. Respondent appealed a case for purposes of delay which amounted to an obstructionof justice. 26

2. Respondent abused her right of recourse to the courts. The duplication ormultiplication of suits should be avoided, 27 and respondent’s acts were tantamount toforum-shopping which is a reprehensible manipulation of court processes andproceedings. 28

3. Respondent uttered disrespectful language and shouted at everybody during thehearing on 25 May 1995. 29 The want of intention is not an excuse for the disrespectfullanguage used.

On 4 October 1996, the IBP transmitted to the Court a copy of IBP Resolution No. XII-96-149dated 30 March 1996. The IBP Board of Governors adopted and approved InvestigatingCommissioner Jose’s recommendation that respondent be "suspended indefinitely from thepractice of law for Unethical Practices and attitude showing her propensity and incorrigiblecharacter to violate the basic tenets and requirements of the Code of Professional Responsibilityrendering her unfit to continue in the practice of law." 30 Governor Angel R. Gonzalesrecommended her "outright disbarment." 31

In its 20 January 1997 Resolution, the Court noted the IBP Resolution suspending respondentindefinitely. 32

On 13 April 1999, the Court issued a Resolution directing the Office of the Court Administrator(OCA) to circularize the resolution of the IBP dated 30 March 1996 suspending respondentindefinitely from the practice of law. 33

On 7 June 1999, the OCA, through Court Administrator Alfredo L. Benipayo, issued Circular No.30-99 informing all courts that respondent had been suspended indefinitely.



On 30 January 2003, respondent filed a Motion to Consider the Case Closed and Terminated.Respondent apologized for her demeanor and prayed that the suspension be lifted. 34

On 16 June 2003, the Court issued a Resolution referring the case to the IBP for report andrecommendation. 35

On 29 August 2003, Investigating Commissioner Demaree J.B. Raval (InvestigatingCommissioner Raval) conducted a hearing. Respondent claimed that she did not receive anynotice of the OCA’s Circular on her indefinite suspension. 36 Respondent alleged that the CourtResolution which she received merely noted the IBP’s Resolution on her indefinitesuspension. 37 Respondent claimed that she only knew of the suspension when she filed anapplication for a judicial position in Mandaluyong City. 38

In the hearing, respondent admitted that she continued to practice law as a Prosecutor inMandaluyong City despite her suspension because she believed that a notation by the Court inthe 20 January 1997 Resolution did not mean an implementation of the IBP’s Resolution on herindefinite suspension. 39

Due to the absence of complainant and his counsel, another hearing was held on 19 September2003. Complainant’s counsel asserted that respondent had been practicing law in the midst of hersuspension and this constituted a violation of the suspension order which she wanted to belifted.40 Investigating Commissioner Raval asked respondent to present a valid ground to lift thesuspension order. 41 Respondent requested that her detention for five days at the NBI beconverted into a five-year suspension, one year for every day of detention such that she wouldhave served five years of indefinite suspension. 42

Investigating Commissioner Raval then directed the parties to file simultaneously their VerifiedPosition Papers. 43

In his Position Paper and Comment, complainant posited that respondent’s motion did not statevalid grounds to convince the Court to lift the suspension order. Complainant stated that bycontinuing to practice law, "she is flaunting her defiance of the Supreme Court by showing thatshe can hoodwink another branch of government." 44Complainant also prayed for respondent’sdisbarment due to the gravity of her offense. 45

In respondent’s Position Paper, she reiterated that complainant is not the real party-in-interestsince the property that was litigated was owned by complainant’s wife. She asserted that shenever betrayed her client’s cause, she was never unfaithful to her oath, and it was complainantwho filed this case for harassment. Respondent prayed that the case be considered closed andterminated due to lack of merit. 46

Respondent also sent a letter to Investigating Commissioner Raval and attached a copy of aResolution in a Preliminary Investigation case which she handled. Respondent contended that inthis Preliminary Investigation case, she recommended its dismissal because the offended partywas not the real party-in-interest. 47

Respondent insisted that complainant did not have the personality to file the disbarmentcomplaint against her; hence, it should have been dismissed outright. 48

After the parties filed their position papers, the IBP Board of Governors issued Resolution No.XVI-2004-229 dated 16 April 2004. The IBP adopted Investigating Commissioner Raval’s Reportand Recommendation that respondent be disbarred for her "manifest flagrant misconduct indisobeying the SC Order of her Indefinite Suspension." 49



As culled from the records, the Court had merely noted IBP Resolution No. XII-96-149 whichrecommended respondent’s indefinite suspension. "The term ‘noted’ means that the Court hasmerely taken cognizance of the existence of an act or declaration, without exercising a judiciousdeliberation or rendering a decision on the matter — it does not imply agreement orapproval." 50 Hence, the penalty of indefinite suspension imposed by the IBP Board of Governorshas not attained finality. Section 12 of Rule 139-B provides:

Section 12. Review and Decision by the Board of Governors . —

x x x

(b) If the Board, by the vote of a majority of its total membership, determines that therespondent should be suspended from the practice of law or disbarred, it shall issue aresolution setting forth its findings and recommendations which, together with the wholerecord of the case, shall forthwith be transmitted to the Supreme Court for finalaction . (Emphasis supplied)

Necessarily, the Court will now give its "final action" on this complaint.

The Ruling of the Court

After a careful review of the records, the Court finds the evidence on record sufficient to supportthe IBP’s findings. However, the Court disagrees with the penalty imposed on respondent.

Administrative proceedings against lawyers are sui generis 51 and they belong to a class of theirown. 52 They are neither civil nor criminal actions but rather investigations by the Court into theconduct of its officer. 53 They involve no private interest and afford no redress for privategrievance. 54

A disciplinary action against a lawyer is intended to protect the administration of justice from themisconduct of its officers. This Court requires that its officers shall be competent, honorable, and

reliable men in whom the public may repose confidence.55

"Lawyers must at all times faithfullyperform their duties to society, to the bar, to the courts, and to their clients. Their conduct mustalways reflect the values and norms of the legal profession as embodied in the Code ofProfessional Responsibility. On these considerations, the Court may disbar or suspend lawyersfor any professional or private misconduct showing them to be wanting in moral character,honesty, probity, and good demeanor — or to be unworthy to continue as officers of the Court." 56

Clear preponderant evidence is necessary to justify the imposition of the penalty in disbarment orsuspension proceedings. 57

The evidence presented shows that respondent failed to comply with the Court’s lawful orders intwo instances:

1. In the 25 March 1992 Court Resolution, respondent was required to file a rejoinderwithin 10 days from notice. However, she only submitted the rejoinder on 11 November1993 after she was detained at the NBI for five days for failure to heed the Court’s order.

2. In the 7 October 1992 Court Resolution, respondent was required to comment oncomplainant’s manifestation. She instead submitted a manifestation on 3 February 1993or almost four months thereafter. In her manifestation, respondent alleged that she hadsubstantially complied with the Court’s orders. However, the Court in its 1 March 1993



Resolution stated that nothing set out in respondent’s manifestation excused her failureto obey the Court’s Resolutions.

These acts constitute willful disobedience of the lawful orders of this Court, which under Section27, Rule 138 58 of the Rules of Court is in itself a sufficient cause for suspension or disbarment.Respondent’s cavalier attitude in repeatedly ignoring the orders of the Supreme Court constitutes

utter disrespect to the judicial institution.59

Respondent’s conduct indicates a high degree ofirresponsibility. A Court’s Resolution is "not to be construed as a mere request, nor should it becomplied with partially, inadequately, or selectively." 60 Respondent’s obstinate refusal to complywith the Court’s orders "not only betrays a recalcitrant flaw in her character; it also underscoresher disrespect of the Court’s lawful orders which is only too deserving of reproof." 61

Lawyers are called upon to obey court orders and processes and respondent’s deference isunderscored by the fact that willful disregard thereof will subject the lawyer not only topunishment for contempt but to disciplinary sanctions as well. In fact, graver responsibility isimposed upon a lawyer than any other to uphold the integrity of the courts and to show respect totheir processes. 62

Respondent’s failure to comply with the Court’s directive to file a Rejoinder and to file a Comment

also constitutes gross misconduct. The Court defined gross misconduct as "any inexcusable,shameful, flagrant, or unlawful conduct on the part of the person concerned in the administrationof justice which is prejudicial to the rights of the parties or to the right determination of a cause." Itis a "conduct that is generally motivated by a premeditated, obstinate, or intentional purpose." 63

In Bernal Jr. v. Fernandez ,64 the Court held that failure to comply with the Court’s directive tocomment on a letter-complaint constitutes gross misconduct and insubordination, or disrespect.In Cuizon v. Macalino ,65 a lawyer’s failure to comply with the Court’s Resolutions requiring him tofile his comment was one of the infractions that merited his disbarment.

Furthermore, respondent’s defenses are untenable. Firstly, respondent contends thatcomplainant is not the real party-in-interest since the property that was litigated was owned bycomplainant’s wife. The Court is not persuaded with this defense.

The procedural requirement observed in ordinary civil proceedings that only the real party-in-interest must initiate the suit does not apply in disbarment cases. In fact, the person who calledthe attention of the court to a lawyer’s misconduct "is in no sense a party, and generally has nointerest in the outcome." 66 "A compromise or withdrawal of charges does not terminate anadministrative complaint against a lawyer." 67

In Heck v. Santos ,68 the Court held that "any interested person or the court motu proprio mayinitiate disciplinary proceedings." The right to institute disbarment proceedings is not confined toclients nor is it necessary that the person complaining suffered injury from the allegedwrongdoing. Disbarment proceedings are matters of public interest and the only basis for the

judgment is the proof or failure of proof of the charges. 69

Secondly, respondent avers that she merely availed of all the legal remedies for her client.In Suzuki v. Tiamson ,70the Court enunciated that "while lawyers owe their entire devotion to theinterest of their clients and zeal in the defense of their client’s rights, they should not forget thatthey are first and foremost, officers of the court, bound to exert every effort to assist in the speedyand efficient administration of justice." Respondent’s act of filing cases with identical issues inother venues despite the final ruling which was affirmed by the Court of Appeals and theSupreme Court is beyond the bounds of the law. "To permit lawyers to resort to unscrupulouspractices for the protection of the supposed rights of their clients is to defeat one of the purposesof the state — the administration of justice." 71



Respondent abused her right of recourse to the courts. Respondent, acting as Tanlioco’scounsel, filed cases for Specific Performance and Maintenance of Possession despite the finalityof the decision in the Ejectment case which involves the same issues. The Court held that "animportant factor in determining the existence of forum-shopping is the vexation caused to thecourts and the parties-litigants by the filing of similar cases to claim substantially the samereliefs. 72 Indeed, "while a lawyer owes fidelity to the cause of his client, it should not be at theexpense of truth and administration of justice." 73

Canon 19 of the Code of Professional Responsibility mandates lawyers to represent their clientswith zeal but within the bounds of the law. It is evident from the records that respondent filedother cases to thwart the execution of the final judgment in the Ejectment case. Clearly,respondent violated the proscription in Canon 19.

The penalty of suspension or disbarment is meted out in clear cases of misconduct that seriouslyaffect the standing and character of the lawyer as an officer of the court. In this case, respondenthas shown her great propensity to disregard court orders. Respondent’s acts of wantonlydisobeying her duties as an officer of the court show an utter disrespect for the Court and thelegal profession. However, the Court will not disbar a lawyer if it finds that a lesser penalty willsuffice to accomplish the desired end.

Respondent’s acts constitute gross misconduct and willful disobedience of lawful orders of asuperior court. Respondent also violated Canon 19 of the Code of Professional Responsibility.Her suspension is consequently warranted.

WHEREFORE , respondent Atty. Emily A. Bajar is hereby SUSPENDED from the practice of lawfor a period of THREE YEARS effective from notice, with a STERN WARNING that a repetition ofthe same or similar acts will be dealt with more severely.

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

JOHN CHRISTEN S. HEGNA, Complainant ,

- versus -

ATTY. GOERING G.C. PADERANGA, Respondent .

A.C. No. 5955

Present:

YNARES-SANTIAGO, J .,Chairperson,

CHICO-NAZARIO,VELASCO, JR.,

NACHURA, andPERALTA, JJ.

Promulgated:

September 8, 2009



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

D E C I S I O N

PERALTA, J. :

Before this Court is a letter-complaint [1] dated June 3, 2002, filed by complainant John

Christen S. Hegna with the Office of the Bar Confidant (OBC) against respondent Atty. Goering

G.C. Paderanga for deliberately falsifying documents, which caused delay in the execution of the

decision rendered by the Municipal Trial Courts in Cities (MTCC), Branch 8, Cebu City, in Civil

Case No. R-45146, entitled John Hegna v. Mr. & Mrs. Eliseo Panaguinip .

Herein complainant was the lessee of a portion of Lot No. 5529, situated at Barangay Quiot

Pardo, Cebu City, which was owned by the heirs of Sabina Baclayon. The heirs of Baclayon,

through their representative Gema Sabandija, entered into a contract of lease with complainantfor a period of ten (10) years, commencing from June 26, 1994, with a rental of P3,000.00 per

year, or P250.00 per month.

On September 26, 2001, complainant filed a complaint for forcible entry against therein

defendants docketed as Civil Case No. R-45146, entitled John Hegna v. Mr. & Mrs. Eliseo

Panaguinip , with the Municipal Trial Court in Cities (MTCC), Branch 8 of Cebu City. In said

complaint, he alleged that in about the second week of March 1996, therein defendants entered

the vacant portion of the leased premises by means of force, intimidation, threat, strategy or

stealth; destroyed the barbed wire enclosing the leased premises of complainant, then built ashop on the said premises without complainant’s consent. He averred that despite his demands

upon therein defendants to vacate the premises and demolish the structure built thereon, the

latter failed and refused to comply. [2]

When therein defendants failed to file their Answer, complainant filed a motion that

judgment be rendered in default.

On December 21, 2001, the MTCC rendered a Decision in favor of complainant, ordering

therein defendants to vacate the leased premises and to pay complainant compensatory

damages for illegal occupation and use of the subject property, as well as attorney’s fees and

costs of suit. The dispositive portion of the decision reads as follows:

WHEREFORE, this Court directs judgment against Defendants MR. &MRS. ELISEO PANAGUINIP and directs them to vacate Lot No. 5529 over theportion in an area of 1,596 square meters thereof, as leased to herein Plaintiff,situated at Barangay Quiot Pardo, Cebu City, and to pay Plaintiff the sum ofPESOS: ONE THOUSAND (P1,000) per month from the second week of March



1996 until the present date by way of compensatory damages for the illegaloccupation and use of the contested property, subject to 12% annual legalinterest until fully paid, and thereafter pay the same amount per month until theyvacate the subject property hereof, and to further pay Plaintiff the sumof P5,000.00 by way of Attorney’s Fees, and the costs of this suit.

SO ORDERED. [3]

On February 8, 2002, the MTCC granted the Motion for Execution of Judgment filed by

complainant, and issued a Writ of Execution onFebruary 18, 2002.

On February 21, 2002, Sheriff Edilberto Suarin of the MTCC, Branch 8 of Cebu City levied

on certain personal properties of therein defendants. [4]

On March 1, 2002, therein defendants requested the complainant to move for the dismissal

of the complaint against them so as to prevent the issuance of the writ of execution thereon.While therein defendants wanted to amicably settle the case, however, they failed to mention the

proposed settlement amount stated in the decision dated December 21, 2001.

Subsequently, respondent Atty. Goering G.C. Paderanga filed an Affidavit of Third-Party

Claim [5] dated March 5, 2002 before Sheriff Suarin, the sheriff executing the judgment in the said

civil case. In the said affidavit, respondent claimed that he was the owner of Lot No. 3653-D-1

and a FUSO (Canter series) vehicle, which he bought from therein defendants on November 27,

2001, [6] and December 12, 2001, [7]respectively, both of which could be erroneously levied by a

writ of execution issued in the civil case.

On April 3, 2002, Sheriff Suarin tried to levy therein defendants’ parcel of land and motor

vehicle, but failed to do so because of the third- party claim filed by respondent. [8] Subsequently,

on April 24, 2002, respondent filed a Complaint [9] for Annulment of Judgment with prayer for the

issuance of an injunction and temporary restraining order (TRO) with damages against

complainant before the Regional Trial Court (RTC), Branch 13 of Cebu City, docketed as Case

No. CEB-27614, entitled Mr. Eliseo Panaguinip, Mrs. Ma. Teresa Panaguinip and Goering G.C.

Paderanga v. John Hegna, Mila Hegna, Judge Edgemelo C. Rosales and Edilberto R. Suarin .

In an Order [10] dated May 13, 2002, the RTC issued a writ of preliminary injunction

enjoining the MTCC to desist from further proceeding with the civil case, and the Sheriff to desist

from conducting a public auction of the levied properties of therein defendants. The RTC

subsequently dismissed respondent’s complaint for annulment of judgment in its

Decision [11] dated June 29, 2006.



In a letter dated June 3, 2002, filed with the OBC, complainant alleged that he was filing a

complaint against respondent for “deliberately falsifying documents, causing delay and a possible

denial of justice to be served in Civil Case No. R-45146.” He alleged that after the decision in the

said civil case was rendered, therein defendants called him on the telephone, requesting the stay

of the execution of judgment, as the latter would be settling their accounts within ten days, butthey failed to comply.

On March 14, 2003, complainant filed a criminal complaint [12] for falsification of public

documents against respondent; false testimony and perjury against therein defendants; and

falsification under paragraph 6, Article 171 of the Revised Penal Code against Atty. Elena Marie

Madarang, notary public, before the Office of the City Prosecutor of Cebu City. Anent the

complaint against respondent, complainant averred that the third-party claim was full of

irregularities, to wit: (a) the Deed of Absolute Sale involving Lot No. 3653-D-1, covered by TCT

No. T-11127, dated November 27, 2001, had no record of transfer in the Register of Deeds of

Cebu City; (b) the registration of the motor vehicle allegedly owned by respondent by virtue of the

Deed of Absolute Sale dated December 21, 2001 did not reflect any change of ownership from

May 4, 2001; (c) the two Deeds of Absolute Sale dated November 27, 2001 and December 21,

2001 showed that both were notarized under Series of 2000 of the notary public; (d) Notarial

Register No. 177 on page 37, Book II showed erasures and tampering done by substituting the

intended entry of Joint Affidavit of Two Disinterested Person to a Deed of Absolute Sale under the

names of the spouses Eliseo and Ma. Teresa Panaguinip, therein defendants, representing the

sale of Lot No. 3653-D-1 under TCT No. 11127; and Notarial Register No. 188 on Page 39, Book

II of Atty. Madarang also had tampering and erasures, as the entry of Affidavit of Loss was

substituted with a Deed of Absolute Sale under the name of Ma. Teresa Panaguinip representing

the sale of the FUSO (Canter series); and (e) the Community Tax Certificate number appearing in

both Deeds of Absolute Sale was actually issued to another person, not to therein defendant Ma.

Teresa Panaguinip.

On April 28, 2003, the Office of the City Prosecutor of Cebu City dismissed the criminal

complaint for falsification of public documents against respondent for lack of prima facie evidence

of guilt, as the allegations therein were similar to the instant administrative complaint. [13]

In his Comment[14]

dated April 29, 2003 on the administrative complaint filed against him,respondent argued that he did not falsify any document and maintained that he had already

satisfactorily explained the irregularities before the Office of the City Prosecutor. He added that

the genuineness and due execution of the deeds of sale had not been affected by the fact that he

failed to register the same. Also, he alleged that the MTCC Decision dated December 21,

2001 was unjust and void due to lack of jurisdiction, and for being based on spurious claims.



In a Resolution [15] dated July 9, 2003, the Court referred the administrative complaint to the

Integrated Bar of the Philippines (IBP) for investigation, report and recommendation/decision

within ninety (90) days from receipt of the record.

On November 21, 2003, the parties appeared in a mandatory preliminary conference and,upon termination thereof, were ordered to submit their respective verified position papers within

ten (10) days, after which the case would be deemed submitted for resolution. [16] Complainant

and respondent submitted their position papers on December 11, 2003, [17] and December 2,

2003, [18] respectively.

On June 1, 2005, the Investigating Commissioner of the IBP submitted his Report and

Recommendation, which contained the following observations:

III. FINDINGS:

Based on the resolution of the City Prosecutor’s office in Cebu City, thecomplaint against the Panaguinip spouses and Attys. Paderanga and Madarang(the notary public) was dismissed for lack of prima facie of guilt. Such resolutionis accorded great weight but certainly not conclusive considering theadministrative nature of this instant complaint. In criminal prosecutions, a primafacie evidence is necessary but in this instant case, substantial evidence is allthat [is] necessary to support a guilty verdict.

According to the Respondent, it was perfectly normal for him to obtainproperties without registering the same under his own name. In his PositionPaper, he even cited several other transactions where he merely possessedDeeds of Sale but not Certification of Registration or Transfer Certificates of Title.

He alleged that for ESTATE PLANNING purposes, he intentionally left theseproperties in the name of the previous owner. The alleged discrepancies in thenotarization were fully explained as well. The notary public explained that theerasures in her Notarial Register were made to correct mistakes so that entrieswill speak the truth. These corrections include the entries under entry number177 to indicate the correct entry which was the Deed of Sale executed [by] thespouses Panaguinip. The original entry, Affidavit of Two Disinterested Persons,was actually notarized but was later cancelled at the request of the same affiants.The full explanation of these affiants, very doubtful and highly suspect, wasnevertheless taken into consideration by the Prosecutor for reasons known onlyto him. The Respondents also managed to convince the Cebu Prosecutor thatthe discrepancy in the Residence Certificates was due to human error!

Not necessarily disagreeing with the findings of the City Prosecutor ofCebu City, the Resolution dismissing the case for falsification is not entirelyconvincing. There were certainly evidentiary matters which could have beenbetter addressed by a judge, namely, the affidavit of the secretary of the notarypublic, the explanation in the incorrect entries in notarial register, the affidavit ofthe two (2) witnesses who sought the cancellation of their original affidavit, andthe explanation of Paderanga himself regarding the difference in the dates.

Complainant is a layman who filed his own Position Paper unaided bycounsel while Respondent is a lawyer. Nevertheless, Complainant managed to



present one (1) piece of evidence not squarely addressed by RespondentPaderanga: the letter handwritten by Respondent’s clients, written in Cebuano,asking the Complainant for mercy and forgiveness in relation to the forcible entrycase. Such letter was no longer necessary if indeed there was a GENUINEtransfer of ownership of properties owned by the Panaguinip spouses to theirlawyer, Respondent Paderanga. This letter, attached to the Complaint, wasnever refuted in any way by Respondent Paderanga who may have skirted theissue by inadvertence or by design. The letter dated March 1, 2002 indicates thatthe Panaguinip spouses still believe and assert ownership over these propertiesdespite the existence of a Deed of Sale allegedly datedMarch 5, 2002.Complainant also went further by attaching an Affidavit by a Third Person whostated that the Panaguinip spouses still assert ownership over the parcel of landand vehicle.

Moreover, Complainant alleged that Respondent invited him consecutivetimes after the issuance of the writ of execution in the lower court; the first was atthe Majestic Restaurant, the second was at Club Cebu at Waterfront Hotel. Therewas an offer to settle the judgment award of P100,000. During the first meeting,the offer was P3,000, on the second meeting, this time with the Panaguinipspouses, the offer was P10,000. When Complainant refused to settle withRespondent, he received a copy of the Affidavit of Third-Party Claim a few dayslater.

The parties did not stipulate this particular issue; however, thisCommissioner feels that for the final disposition of this case, it is worthy tomention Article 1491 of the Civil Code. It specifically states that:

Art. 1491. The following persons cannot acquire bypurchase, even at public or judicial auction, either in person orthrough the mediation of another:

x x x

(5) Justices, judges, prosecuting attorneys, clerks of superior

and inferior courts, and other officers and employees connectedwith the administration of justice, the property and rights inlitigations or levied upon execution before the court within whose

jurisdiction or territory they exercise their respective functions;this prohibition includes the act of acquiring by assignment andshall apply to lawyers, with respect to the property and rightswhich may be the object of any litigation in which they may takepart by virtue of their profession.x x x

This is a classic case where a lawyer acquired the interests of his client incertain properties subject for execution. Regardless of the court’s apparent lackof jurisdiction, Respondent Paderanga acquired the two (2) matters subject for

execution in the forcible entry case in violation of [the] Canon of Legal Ethics. Athing is said to be in litigation not only if there is some contest or litigation over itin court, but also the moment that becomes subject to the judicial action of the

judge. x x x

In all likelihood, although Complainant failed to get a favorable resolutionfrom the City Prosecutor’s office in Cebu City, the Affidavit of Third Party Claimwas simulated to defeat the rights of Complainant herein. It is immaterial that thedecision of the lower court granting a judgment award was subsequentlyreversed or nullified. It is immaterial that the City Prosecutor did not find a prima



facie case of falsification. The fact remains that there was a MULTITUDE ofirregularities surrounding the execution of the Affidavit and, coupled with theletter sent by the Panaguinip spouses left unrebutted by Respondent Paderanga,there is substantial evidence that the Affidavit of Third Party Claim was purposelyfiled to thwart the enforcement of the decision in the forcible entry case.

It is worthy to note that the proceedings before the prosecutor’s office didnot take into consideration the handwritten letter from the Panaguinip spouses.For whatever reason, Complainant did not present such letter, which if he did, theprosecutor may come up with a different resolution.

IV. RECOMMENDATION

While Complainant cannot fully prove the existence of falsity in theexecution of the Affidavit of Third Party Claim, this Commissioner is convincedthat there was indeed an anomaly which constitutes a violation of the Canons ofProfessional Responsibility.

A lawyer ought to have known that he cannot acquire the property of hisclient which is in litigation. x x x Respondent necessitates a heavy penalty sincethe circumstances surrounding the transfer of ownership of properties tend toindicate an anomalous transfer aimed to subvert the proper administration of

justice. The numerous discrepancies in the transfer document, some dismissedas clerical errors and other explained by incredulous stories by way of affidavits,compounded by the letter left uncontested by Respondent Paderanga, inevitablylead a rational person to conclude that Paderanga may not have acquired theproperties prior to the judicial action of execution. Even if the City Prosecutorfound no prima facie case of falsification, this Commissioner finds substantialevidence to support a conclusion that Respondent Paderanga committed anethical violation and should be meted the penalty of suspension of five (5) yearsfrom the practice of law. [19]

In a Resolution dated December 17, 2005, the IBP Board of Governors adopted andapproved, with modification, the Report and Recommendation of the Investigating

Commissioner, viz :

x x x finding the recommendation fully supported by the evidence on record andthe applicable laws and rules, and considering that a lawyer ought to know thathe cannot acquire the property of his client which is in litigation, Atty. GoeringPaderanga is hereby SUSPENDED from the practice of law for one (1) year. [20]

On March 23, 2006, respondent filed with the Court a Motion for Reconsideration of the

Resolution of the IBP Board of Governors and, onAugust 18, 2006, a Supplemental Motion for

Reconsideration.

In a Resolution dated August 23, 2006, the Court referred the motion for reconsideration to

the IBP.



not to pertain exclusively to the performance of a lawyer’s professional duties. [24] In previous

cases, [25] the Court has held that a lawyer may be disbarred or suspended for misconduct,

whether in his professional or private capacity, which shows him to be wanting in moral character,

honesty, probity and good demeanor; or unworthy to continue as an officer of the court.

Notably, in the falsification case earlier filed, complainant was able to cite several

irregularities in the documents evidencing the deeds of sale in question: the non-registration by

respondent of the sale transactions; a Community Tax Certificate number appearing on said

deeds which was different from that issued to defendant Ma. Teresa Panaguinip; and the

erasures of the entries pertaining to said deeds from the Notarial Register.

Of these irregularities, only one can directly be attributable to respondent – his non-

registration of the sale transaction. He argues that the sales were valid despite non-registration,

and maintained that it was perfectly normal and regular for a lawyer like him to choose not to

register and cause the transfer of title of the land and the FUSO jeepney after the execution of the

Deeds of Sale, so the transactions would not appear in the records of the Bureau of Internal

Revenue, the City Assessor or the Register of Deeds, on the Land Registration Office. He added

that he had also bought four lots, which had not yet been transferred to his name, for estate

planning or speculation purposes. He claimed that he found it legally wise not to immediately

register after buying so that he would not pay for the expenses of the sale and transfer twice,

once he decided to sell; or place them in his children’s name, and avoid paying estate and

inheritance taxes upon his death. [26]

While the act of registration of a document is not necessary in order to give it legal effect as

between the parties, requirements for the recording of the instruments are designed to prevent

frauds and to permit and require the public to act with the presumption that a recorded instrument

exists and is genuine. [27] However, while the RTC was correct in holding that said omission on

respondent’s part may not be considered falsification, he had shown an intent to defraud the

government, which had the right to collect revenue from him, as well as from other persons who

may have an interest in said properties.

Respondent violated the Lawyer’s Oath, which mandates that he should support the

Constitution, obey the laws as well as the legal orders of the duly constituted authorities therein,and do no falsehood or not consent to the doing of any in court. Further, he has also failed to live

up to the standard set by law that he should refrain from counseling or abetting activities aimed at

defiance of the law or at lessening confidence in the legal system. [28] Respondent’s act of non-

registration of the deeds of sale to avoid paying tax may not be illegal per se ; but, as a servant of

the law, a lawyer should make himself an exemplar for others to emulate. The responsibilities of a

lawyer are greater than those of a private citizen. He is looked up to in the



community. [29] Respondent must have forgotten that a lawyer must refrain from committing acts

which give even a semblance of impropriety to the profession.

In cases wherein lawyers have similarly engaged in deceitful and dishonest conduct, the

Court has imposed the penalty of suspension from the practice of law ranging from six (6) monthsto one (1) year.

In Spouses Donato v. Asuncion, Sr. ,[30] where therein respondent lawyer filed a complaint

for reformation of instrument to obtain financial gain, and prepared a contract which did not

express the true intention of the parties, he was found guilty of gross misconduct and suspended

from the practice of law for six (6) months.

In Yap-Paras v. Paras ,[31] where therein respondent lawyer applied for free patents over

lands owned by another person and not in the former’s physical possession, he was found guiltyof committing a falsehood in violation of the Lawyer’s Oath and the Code of Professional

Responsibility and suspended from the practice of law for one (1) year, with a warning that the

commission of the same or similar offense in the future would result in the imposition of a more

severe penalty.

In the present case, the Investigating Commissioner and the IBP Board of Governors

recommended a penalty of suspension to be imposed upon respondent for five (5) years and one

(1) year, respectively. The Court, however, believes that a penalty of one (1) year is more

commensurate to respondent’s deceitful and dishonest conduct.

WHEREFORE, respondent Atty. Goering G.C. Paderanga is found guilty of engaging in

dishonest and deceitful conduct, and is SUSPENDED from the practice of law for one (1) year,

with a stern warning that a repetition of the same or similar offense in the future would result in

the imposition of a more severe penalty.

Let a copy of this Decision be entered into respondent’s record as a member of the Bar,

and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of

the Court Administrator for circulation to all courts in the country.

This Decision shall be immediately executory.

PLUS BUILDERS, INC., and EDGARDO C. GARCIA, Complainants,vs.ATTY. ANASTACIO E. REVILLA, JR., Respondent.



R E S O L U T I O N

NACHURA, J.:

Before us is a motion for reconsideration of our Decision dated September 13, 2006, findingrespondent guilty of gross misconduct for committing a willful and intentional falsehood before the

court, misusing court procedure and processes to delay the execution of a judgment andcollaborating with non-lawyers in the illegal practice of law.

To recall, the antecedents of the case are as follows:

On November 15, 1999, a decision was rendered by the Provincial Adjudicator of Cavite(PARAD) in favor of herein complainant, Plus Builders, Inc. and against the tenants/farmersLeopoldo de Guzman, Heirs of Bienvenido de Guzman, Apolonio Ilas and Gloria MartirezSiongco, Heirs of Faustino Siongco, Serafin Santarin, Benigno Alvarez and Maria Esguerra, whowere the clients of respondent, Atty. Anastacio E. Revilla, Jr. The PARAD found that respondent’sclients were mere tenants and not rightful possessors/owners of the subject land. The case waselevated all the way up to the Supreme Court, with this Court sustaining complainant’s rights overthe land. Continuing to pursue his clients’ lost cause, respondent was found to have committedintentional falsehood; and misused court processes with the intention to delay the execution ofthe decision through the filing of several motions, petitions for temporary restraining orders, andthe last, an action to quiet title despite the finality of the decision. Furthermore, he allowed non-lawyers to engage in the unauthorized practice of law – holding themselves out as hispartners/associates in the law firm.

The dispositive portion of the decision thus reads:

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

Let copies of this Decision be entered in the record of respondent as attorney and served on theIBP, as well as on the court administrator who shall circulate it to all courts for their informationand guidance. 1

Respondent duly filed a motion for reconsideration within the reglementary period, appealing tothe Court to take a second look at his case and praying that the penalty of suspension of twoyears be reduced to mere reprimand or admonition for the sake of his family and the poor clientshe was defending. 2

Respondent maintains that he did not commit the acts complained of. The courses of action hetook were not meant to unduly delay the execution of the DARAB Decision dated November 19,1999, but were based on his serious study, research and experience as a litigation lawyer formore than 20 years and on the facts given to him by his clients in the DARAB case. He believes

that the courses of action he took were valid and proper legal theory designed to protect therights and interests of Leopoldo de Guzman, et. al. 3 He stresses that he was not the originallawyer in this case. The lawyer-client relationship with the former lawyer was terminated becauseLeopoldo de Guzman, et. al. felt that their former counsel did not explain/argue their position verywell, refused to listen to them and, in fact, even castigated them. As the new counsel, respondentcandidly relied on what the tenants/farmers told him in the course of his interview. Theymaintained that they had been in open, adverse, continuous and notorious possession of the landin the concept of an owner for more than 50 years. Thus, the filing of the action to quiet title wasresorted to in order to determine the rights of his clients respecting the subject property. He aversthat he merely exhausted all possible remedies and defenses to which his clients were entitled



under the law, considering that his clients were subjected to harassment and threats of physicalharm and summary eviction by the complainant. 4 He posits that he was only being protective ofthe interest of his clients as a good father would be protective of his own family, 5 and that hisservices to Leopoldo de Guzman, et. al were almost pro bono. 61avvphi1

Anent the issue that he permitted his name to be used for unauthorized practice of law, he

humbly submits that there was actually no sufficient evidence to prove the same or did he fail todispute this, contrary to the findings of the Integrated Bar of the Philippines (IBP). He was counselof Leopoldo de Guzman, et al. only and not of the cooperative Kalayaan DevelopmentCooperative (KDC). He was just holding his office in this cooperative, together with Attys.Dominador Ferrer, Efren Ambrocio, the late Alfredo Caloico and Marciano Villavert. He signed theretainer agreement with Atty. Dominador to formalize their lawyer-client relationship, and thecomplainants were fully aware of such arrangement. 7

Finally, he submits that if he is indeed guilty of violating the rules in the courses of action he tookin behalf of his clients, he apologizes and supplicates the Court for kind consideration, pardonand forgiveness. He reiterates that he does not deserve the penalty of two years’ suspension,considering that the complaint fails to show him wanting in character, honesty, and probity; infact, he has been a member of the bar for more than 20 years, served as former president of the

IBP Marinduque Chapter, a legal aide lawyer of IBP Quezon City handling detention prisonersand pro bono cases, and is also a member of the Couples for Christ, and has had strict training inthe law school he graduated from and the law offices he worked with. 8 He is the sole breadwinnerin the family with a wife who is jobless, four (4) children who are in school, a mother who isbedridden and a sick sister to support. The family’s only source of income is respondent’s privatepractice of law, a work he has been engaged in for more than twenty-five (25) years up to thepresent. 9

On August 15, 2008, the Office of the Bar Confidant (OBC) received a letter from respondent,requesting that he be issued a clearance for the renewal of his notarial commission. Respondentstated therein that he was aware of the pendency of the administrative cases 10 against him, butpointed out that said cases had not yet been resolved with finality. Respondent soughtconsideration and compassion for the issuance of the clearance -- considering present

economic/financial difficulties -- and reiterating the fact that he was the sole breadwinner in thefamily.

It is the rule that when a lawyer accepts a case, he is expected to give his full attention, diligence,skill and competence to the case, regardless of its importance and whether he accepts it for a feeor for free. 11 A lawyer’s devotion to his client’s cause not only requires but also entitles him todeploy every honorable means to secure for the client what is justly due him or to present everydefense provided by law to enable the latter’s cause to succeed. 12 In this case, respondent maynot be wanting in this regard. On the contrary, it is apparent that the respondent’s actscomplained of were committed out of his over-zealousness and misguided desire to protect theinterests of his clients who were poor and uneducated. We are not unmindful of his dedicationand conviction in defending the less fortunate. Taking the cudgels from the former lawyer in thiscase is rather commendable, but respondent should not forget his first and foremost responsibilityas an officer of the court. We stress what we have stated in our decision that, in support of thecause of their clients, lawyers have the duty to present every remedy or defense within theauthority of the law. This obligation, however, is not to be performed at the expense of truth and

justice. 13 This is the criterion that must be borne in mind in every exertion a lawyer gives to hiscase. 14 Under the Code of Professional Responsibility, a lawyer has the duty to assist in thespeedy and efficient administration of justice, and is enjoined from unduly delaying a case byimpeding execution of a judgment or by misusing court processes. 15

Certainly, violations of these canons cannot be countenanced, as respondent must have realizedwith the sanction he received from this Court. However, the Court also knows how to show



compassion and will not hesitate to refrain from imposing the appropriate penalties in thepresence of mitigating factors, such as the respondent’s length of service, acknowledgment of hisor her infractions and feeling of remorse, family circumstances, humanitarian and equitableconsiderations, and respondent’s advanced age, among other things, which have varyingsignificance in the Court’s determination of the imposable penalty. Thus, after a carefulconsideration of herein respondent’s motion for reconsideration and humble acknowledgment ofhis misfeasance, we are persuaded to extend a degree of leniency towards him. 16 We find thesuspension of six (6) months from the practice of law sufficient in this case

IN VIEW OF THE FOREGOING, the letter-request dated August 15, 2008 is NOTED.Respondent’s Motion for Reconsideration is PARTIALLY GRANTED. The Decision datedSeptember 13, 2006 is hereby MODIFIED in that respondent is SUSPENDED from the practice oflaw for a period of six (6) months, effective upon receipt of this Resolution. Respondent isDIRECTED to inform the Court of the date of his receipt of said Resolution within ten (10) daysfrom receipt thereof.

Let copies of this Decision be entered in the record of respondent as attorney and served on theIBP, as well as on the Court Administrator, who shall circulate it to all courts for their informationand guidance.

ANTONIO EDUARDO B. NACHURA Associate Justice

FIL-GARCIA, INC., A.C. No. 7129represented by its President, Filomeno Garcia,

Complainant,

Present:

PUNO, C.J. , Chairperson,

- versus - CARPIO,CORONA, AZCUNA, andLEONARDO-DE CASTRO, JJ .

ATTY. FERNANDO CRESENTE C. HERNANDEZ, Promulgated:

Respondent. July 16, 2008x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

PUNO, C.J .:

Before the Court is an administrative complaint filed by complainant Fil-Garcia, Inc.,

represented by its President and General Manager, Filomeno T. Garcia, against respondent Atty.



Fernando Cresente C. Hernandez charging the latter of malpractice, gross misconduct and for

violation of his oath as a lawyer.

The facts are of record.

Sometime in 1990, complainant entered into an agreement with Magdalena T. Villasi

(Villasi) for the completion of the construction of a condominium building owned by the latter

located in Quezon City. During the progress of the construction, controversy arose between

complainant and Villasi regarding the billing and payments. On March 11, 1991, complainant

filed an action for recovery of sum of money with damages against Villasi before the Regional

Trial Court (RTC) of Quezon City, Branch 77. At that stage, complainant was represented by

Atty. Bernardo F. Ligsay (Atty. Ligsay). On June 26, 1996, the RTC rendered judgment in favor

of complainant and against Villasi. The dispositive portion of the Decision [1] states:

WHEREFORE, judgment is hereby rendered:

1. ordering the defendant to pay plaintiff the sum of P2,865,000.00 as actualdamages and unpaid accomplishment billings;

2. ordering the defendant to pay plaintiff the amount of P500,000.00representing the value of unused building materials;

3. ordering the defendant to pay plaintiff the amount of P100,000.00 asmoral damages and P100,000 as attorney’s fees.

SO ORDERED. [2]

Aggrieved by the RTC’s decision, Villasi filed an appeal to the Court of Appeals

(CA). On November 20, 2000, the CA granted Villasi’s appeal and reversed the decision of the

RTC. The dispositive portion of the Decision [3] states:

WHEREFORE, premises considered, the present appeal is herebyGRANTED and the appealed decision in Civil Case No. Q-91-8187 is herebyREVERSED and SET ASIDE and judgment is hereby rendered ordering theplaintiff-appellee to return to defendant-appellant the sum of P 1,244,543.33 asoverpayment under their contract, and the further sum of P 425,004.00representing unpaid construction materials obtained by it from defendant-

appellant. Plaintiff-appellee is likewise hereby declared liable for the payment ofliquidated damages in the sum equivalent to 1/10 of 1% of the contract price foreach day of delay computed from March 6, 1991.

No pronouncement as to costs.

SO ORDERED. [4]



On December 14, 2000, complainant filed a Motion for Reconsideration. [5] This time,

complainant engaged the legal services of a new counsel in the person of respondent.

In its April 27, 2001 Resolution, [6] the CA denied complainant’s motion for reconsideration

and noted the appearance of respondent as counsel for complainant in substitution of Atty.

Ligsay. Respondent received a copy of the resolution on May 8, 2001. Thus, he had until May

23, 2001 within which to file an appeal in accordance with Rule 45 in relation to Rule 56 of the

Rules of Court.

However, instead of filing an appeal within the reglementary period, respondent filed

three (3) successive motions for extension of time with the Court.

On May 22, 2001, respondent filed a Motion for Extension of Time to File Appeal byCertiorari. [7] In his motion, he alleged that he was engaged as counsel by a mayoralty candidate

and a senatorial candidate which required his presence in the canvassing of votes. Due to the

“enormous time pressure from these commitments,” [8] respondent prayed for an extension of

thirty (30) days or until June 21, 2001 to file complainant’s appeal.

On June 21, 2001, respondent filed a Second Motion for Extension of Time to File Appeal

by Certiorari. [9] He alleged that “[he] fell ill” [10] and that “[h]e sought medical consultation, which

revealed that he needs extended bed rest.” [11] He prayed for an extension of twenty (20) days or

until July 11, 2001 to file the appeal.

On July 11, 2001, respondent filed a Third Motion for Extension of Time to File Appeal by

Certiorari, [12] alleging that “[he] severely underestimated the time needed to complete the petition

because he had to work on other equally urgent legal matters, which were unattended to during

his illness.” [13] He prayed for an extension of ten (10) days or until July 21, 2001 to file the

appeal.

Thereafter, respondent filed complainant’s Petition for Review on Certiorari dated July 21,2001. [14]

On August 6, 2001, respondent received a copy of the Court’s Resolution [15] dated July 2,

2001 denying his first motion for extension of time, viz :

G.R. No. 147960 ( Fil-Garcia Construction, Inc., represented by itsPresident-General Manager Filomeno Garcia vs. Magdalena T. Villasi).-



Petitioner’s motion for extension of thirty (30) days from 22 May 2001 withinwhich to file petition for review on certiorari is DENIED for petitioner’s failure toshow that it has not lost the fifteen (15)-day reglementary period within which toappeal pursuant to Section 2, Rule 45 of the 1997 Rules of Civil Procedure, asamended, in view of the lack of statement of material dates of receipt of theassailed judgment of the Court of Appeals and of filing of the motion forreconsideration of said judgment. [16]

Hence, on August 17, 2001, respondent filed a Motion for Reconsideration [17] of the

above resolution.

On August 20, 2001, the Court issued a Resolution [18] denying respondent’s second and

third motions for extension of time considering that the first motion for extension had already been

denied in the resolution dated July 2, 2001. On September 28, 2001, respondent filed a Motion

for Reconsideration [19] of the resolution.

On October 1, 2001, the Court issued a Resolution [20] denying respondent’s motion for

reconsideration of the resolution dated July 2, 2001 and complainant’s petition for review on

certiorari, viz :

G.R. No. 147960 (Fil-Garcia Construction, Inc., represented by itsPresident-General Manager, Filomeno Garcia v. Magdalena T. Villasi) –

Acting on petitioner’s motion for reconsideration of the resolution of 02 July 2001which denied its motion for extension of time to file petition for review oncertiorari for lack of showing that it has not lost the 15-day period to appeal dueto lack of statement of the dates of receipt of assailed judgment of the Court of

Appeals and of filing of motion for reconsideration of said judgment, the CourtResolves to DENY the motion with FINALITY, no compelling reason having beenadduced to warrant the reconsideration sought. Respondent’s comment andopposition to said motion is NOTED.

In accordance with Rule 45 in relation to Rule 56 and other pertinentprovisions of the 1997 Rules of Civil Procedure, as amended, governing appealsby certiorari to the Supreme Court, only petitions which are accompanied by orcomply strictly with the requirements specified therein shall be entertained. Onthe basis thereof, the Court further Resolves to DENY the petition for review oncertiorari for petitioner’s failure to:

a) take the appeal within the reglementary period of fifteen (15) days in

accordance with Section 2, Rule 45 in relation to Section 5(a), Rule 56, in view ofthe denial of the first, second and third motions for extension of time to file saidpetition in the resolution of 02 July 2001 and 20 August 2001; and

b) state the material date of filing of the motion for reconsideration of theassailed Court of Appeals decision pursuant to Sections 4 (b) and 5, Rule 45 inrelation to Section 5 (d), Rule 56. [21]



On November 21, 2001, the Court issued a Resolution [22] denying with finality respondent’s

motion for reconsideration of the resolution dated August 20, 2001.

On November 27, 2001, the Court issued an Entry of Judgment [23] rendering the decision of

the CA final and executory.

As admitted by respondent, he received a copy of the Court’s resolution dated October 1,

2001 denying complainant’s appeal on November 15, 2001 .[24] However, respondent forwarded a

copy of the same to complainant’s office only on June 16, 2002 .[25]

Feeling aggrieved by the fate of its appeal, complainant filed a Complaint [26] for disbarment

before the Integrated Bar of the Philippines (IBP) on April 21, 2004. Complainant alleged that

respondent’s act of filing three (3) motions for extension of time within which to file the appeal andhis wrong choice in the mode of appeal in the petition that he belatedly filed exemplify gross

incompetence and caused serious prejudice to complainant. Complainant also alleged that the

lapse of seven (7) months from the time the resolution dated October 1, 2001 was received by

respondent before he informed complainant of the same constitutes inexcusable negligence.

On June 16, 2004, respondent filed his Answer. [27]

In his answer, respondent alleged that the filing of a motion for extension of time to file

petition for review is allowed under Section 2, Rule 45 of the Rules of Court provided that the

same is filed and the docket and other lawful fees and deposit of cost are paid within the

reglementary period. Hence, respondent contends that he exercised due prudence when he filed

his first motion for extension of time. Moreover, he was in the honest belief that the allegation of

the date of receipt of the resolution denying the motion for reconsideration would suffice

considering that the pertinent rules do not require that a motion for extension of time must contain

a statement of material dates. Respondent claims that the filing of several motions and within the

reglementary period to do so clearly speaks of due diligence of the legal matter entrusted to

him. He argues that the filing of his motions for extension of time was based on meritoriousgrounds and the denial of the same was based solely on the ground that his first motion was

wanting of material dates.

As to complainant’s allegation on his erroneous mode of appeal, respondent claims that it

is speculative at this point since the determination of the same is better left to the Court.



Lastly, respondent admits that he failed to immediately inform complainant of the

development of the case. However, the said omission was not deliberate nor prompted by malice

or intent to injure the complainant but was brought about by “the sudden unexpected

technicalities that besieged the appeal of the case to the Supreme Court” [28] which caused him

dismay and made it “hard” [29] for him to inform complainant of the same.

After a mandatory conference, Commissioner Milagros V. San Juan, the investigating

commissioner of the IBP Committee on Bar Discipline, submitted her report and recommended to

the IBP Board of Governors that respondent be disbarred from the practice of law.

The Board, in its Resolution [30] No. XVII-2006-04 dated January 28, 2006, adopted and

approved with modification the Report and Recommendation of Commissioner San Juan. It

reduced the penalty of disbarment to suspension for six (6) months; hence, the transmittal of thecase and its records to this Court for final resolution pursuant to Rule 139-B, Section 12(b) of the

Rules of Court, viz :

Review and Decisions by the Board of Governors. - x x x x (b) If theBoard, by the vote of a majority of its total membership, determines that therespondent should be suspended from the practice of law or disbarred, it shallissue a resolution setting forth its findings and recommendations which, togetherwith the whole record of the case, shall forthwith be transmitted to the SupremeCourt for final action.

After a careful review of the records and evidence, we find no cogent reason to deviate

from the findings and the recommendation of the IBP Board of Governors. Respondent’s conduct

relative to the belated filing of complainant’s petition for review on certiorari falls short of his

obligation to serve his client with competence and diligence under Canon 18 of the Code of

Professional Responsibility.

Respondent’s act of filing three (3) successive motions for extension of time to file the

petition on the careless assumption that each motion will be granted by the Court, and without

taking care of informing himself of the Court’s action thereon, constitutes inexcusablenegligence. Moreover, respondent knowingly referred to Rule 65 in the petition he belatedly filed

as an afterthought in his desperate attempt to salvage the appeal.

Rule 18.03 of the Code of Professional Responsibility enjoins a lawyer not to “neglect a

legal matter entrusted to him, and his negligence in connection therewith shall render him liable.”



IN VIEW WHEREOF , the January 28, 2006 Resolution of the IBP Board of Governors in

CBD Case No. 04-1230 is AFFIRMED.

Let a copy of this Decision be attached to the personal record of respondent with the

Office of the Bar Confidant. Likewise, let copies of this Decision be furnished the Integrated Bar

of the Philippines and all its chapters, and to all the courts in the land.

Canon 5 & 12 (legal ethics)

Documents

Transcript of Canon 5 & 12 (legal ethics)