Republic of the PhilippinesSupreme Court

Manila  

SECOND DIVISION 

SALLY V. BELLOSILLO,Petitioner,   - versus -   THE BOARD OF GOVERNORS OF THE INTEGRATED BAR OF THEPHILIPPINES and ANICETO G. SALUDO, JR.,Respondents.

  G.R. No. 126980 Present: PUNO, J., Chairperson,SANDOVAL-GUTIERREZ,CORONA,AZCUNA, andGARCIA, JJ. Promulgated:  March 31, 2006

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R E S O L U T I O N 

GARCIA, J.:

 

Under consideration is this petition for certiorari assailing the

Resolution,[1] dated March 30, 1996, of the respondent Board of

Governors of the Integrated Bar of the Philippines (IBP Board of

Governors), adopting and approving the Report and

Recommendation[2] of the Investigating Commissioner in a

complaint for disbarment filed by the herein petitioner Sally V.

Bellosillo against respondent Atty. Aniceto G. Saludo, Jr. in

Administrative (Adm.) Case No. 3297. The assailed Resolution

reads:

 RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, hereinmade part of this Resolution/Decision as Annex A; and, finding the recommendation therein to be fully supported by the evidence on record and the applicable laws and rules, the complaint against Respondent is hereby DISMISSED.  

The records of the case disclose the following:

 

On January 31, 1989, the petitioner filed a complaint[3] for

disbarment against the respondent for alleged gross professional

misconduct and malpractice. Essentially, petitioner charged

respondent of pocketing the settlement money in the Philippine

Plaza bombing incident; improper financial dealings through

borrowings of cash and post-dated checks; and unwarranted

solicitations in the form of gifts, pianos, lechon, and wallpapering

of respondents house. 

In his Answer,[4] dated May 31, 1989, with a number of documents

attached thereto, respondent denied all the charges and

dismissed them as deliberate falsehoods. He asserted that it was

he, not the petitioner, who was the lender of money.

 

On August 4, 1989, the petitioner filed a Reply.[5]

 

In answer to said Reply, respondent filed a motion to dismiss[6] the

charges for failure to show a prima facie case against

him. Respondent argued that despite the challenge to produce

receipts and documents, the petitioner could not produce any

document or evidence that he settled the claims of the Philippine

Plaza bombing victims and misappropriated the proceeds thereof

for his benefit; that with respect to the post-dated checks, the

petitioner has changed her theory by alleging that it was she who

was lending money to the respondent and the checks issued to

her by the respondent were payments of said borrowings; and

assuming arguendo the change in theory to be true, the parties

transactions were ordinary business transactions where conflicts

do not provide grounds for disbarment.

 

Respondents motion to dismiss as well as his subsequent motion

for reconsideration were denied by the Hearing Commissioner.

 

From such denial, respondent then filed a petition for

review[7] with the IBP Board of Governors. The petition, however,

was likewise denied by the latter which even ordered the

investigation to proceed with deliberate speed.

 

Respondent then went to this Court by way of a petition

for certiorari and prohibition with prayer for preliminary

injunction, challenging the above-mentioned orders of the IBP

Board of Governors, and insisting that the pleadings of the parties

on record, affidavits and admissions would clearly show lack

of prima faciecase against him, so that the case should be

dismissed outright.

 

On October 13, 1992, the Court issued a Resolution[8] dismissing

respondents petition, but directing the IBP Board of Governors, as

follows: 

The IBP Board is directed to look into whether or not, on the basis of all the records before it, there is a prima facie case, or, as claimed by the [respondent], circumstances warrant the outright dismissal of the case. If the interests of justice require it, reception of evidence may then proceed giving due process to both parties involved.[9] (Word in bracket supplied).

 

On March 30, 1996, the IBP Board of Governors issued the

herein assailed Resolution[10] which adopted and approved the 31-

page Report and Recommendation[11] of the Investigating

Commissioner, dated November 22, 1995, pertinent portions of

which read:

 

In sum, it appears that complainants actuations were motivated by vengeance, hatred and ill-will acting as she did only after the aforesaid civil cases were filed against her, for which she blamed the respondent.

 Complainant has already made a history of issuing bouncing checks. In the

case of Philippine National Bank vs. Sally Bellosillo, CA. G.R. No. 67070-12, involving bouncing checks issued by the complainant, the Court of Appeals found that

 Sally V. Bellosillo was deliberately lying.   And a person

who is shown to be committing a deliberate falsehood to the court should not be believed.

 xxx xxx xxx

 xxx The fact that the appellants Bellosillo and Villamora, Sr. issued checks and had caused them to be encashed and the proceeds thereof to be received by the last endorsees, knowing fully well that they have no sufficient cash deposit, or that they did not intend to, or did not deposit funds sufficient to back up the checks they issued, is substantial basis for their liability to answer for their fraudulent schemes and actions. It is an insult to human decency for these appellants to now unashamedly claim that the successful encashment of the checks was at the risk of their co-defendants Ortiz and that they are not liable for cheating the bank. It is just saying that it is the cheated person who is to blame for allowing himself to be cheated and that the cheater is free from blame. In other words, the said appellants seem to justify their cheating by implying that there would be no cheater if no person allows himself to be cheated, and that the cheater should be rewarded with an impunity of his act. (Exh. 2 of Answer.)

 Finally, we are not unmindful of the other imputations leveled against respondent which are mere fangless embellishments to the more demeaning charges already discussed. Thus, the charge for supposed unwarranted solicitations in the form of gift certificates, lechon and expensive attach cases, is negated by complainants admission that she gave those gifts in appreciation of respondents concerns for their interest (pp. 5-6 of Complaint). The related charge that respondent requested for, and got, two pianos in 1985 is completely belied by the checks evidencing payment thereof which are dated 1980, 1981 and 1982 (Annexes A-3, A-4 and A-5 of Complaint).We find no prima facie case against respondent. For this reason, further investigation is not warranted. (Lacsamana vs. De la Pena, 57 SCRA 22, 23 (1974); also, Requio vs. Dy-Liaco, 75 SCRA 118 (1977). For to subject respondent to further investigation, even in the absence of a prima facie case, will

be to unnecessarily prolong his agony, unfairly expose his name and reputation as a lawyer to erroneous conclusions and unfavorable innuendos, the charges that he was unfaithful, even as they were unfounded, being unfortunately not without their adverse effects (Aragon vs. Matol, 30 SCRA 1 (1969). For as the Supreme Court ruled: 

There is this additional point to consider. As Cardozo aptly observed: ~Reputation (in the legal profession) is a plant of tender growth, and its bloom, once lost, is not easily restored. This Court, certainly is not averse to having such risk minimized. Where, as in this case, the good name of counsel was traduced by an accusation made in reckless disregard of the truth, an action prompted by based ingratitude, the severest censure is called for. Certainly, this is not easy to say that if a case were presented showing nonfeasance or malfeasance on the part of a lawyer, appropriate disciplinary action would not be taken.This is not such a case however. Respondent, as has been so clearly shown, was in no wise culpable; there is no occasion for the corrective power of this Court coming into play. (Albano v. Coloma, 21 SCRA 411, 420 [1967]).

 WHEREFORE, finding no prima facie case to justify a full dress hearing, it is hereby recommended that the present administrative case be dismissed.

In its Resolution[12] of January 15, 1997, the Court noted the herein

assailed Resolution dated March 30, 1996 of the IBP Board of

Governors.

On December 3, 1996, the petitioner went to this Court by

way of this petition for certiorari challenging the March 30, 1996

Resolution of the IBP Board of Governors. Petitioner imputes

grave abuse of discretion on the part of IBP Board of Governors

for allegedly not ruling on her several charges against the

respondent. Petitioner demands that a full-dress investigation and

hearing be conducted because the challenged Resolution of the

IBP Board of Governors is biased for the reason alone that the

Investigating Commissioner and the respondent are both

members of the U.P. Sigma Rho Fraternity.  

On July 14, 1997, the Court issued a Resolution[13] treating the

present petition as one filed under Rule 45 of the Rules of Court,

and requiring the respondent to file his Comment thereon. 

After the respondent has filed his Comment, petitioner filed her

Reply thereto on November 14, 1997. 

The petition must be denied.

Petitioner considers the assailed Resolution of the IBP Board

of Governors as generally a biased judgment due to her

perception that because the Investigating Commissioner, Atty.

Plaridel C. Jose, and the respondent are both members of the U.P.

Sigma Rho Fraternity, the former must, as a matter of course,

favor the latter. In its April 6, 1989 Resolution,[14] the Court has

earlier rejected this erroneous perception when, resolving

petitioners letter for this Court to direct any member of the U.P.

Sigma Rho Fraternity to desist from participating in the IBP

proceedings on the case against respondent, the Court stated:

 Membership in a college fraternity, by itself, does not constitute a ground to disqualify an investigator, prosecutor or judge from acting on the case of a respondent who happens to be a member of the same fraternity. A trial Judge, appellate Justice, or member of this Court who is or was a member of a college fraternity, a university alumni association, a socio-civic association like Jaycees or Rotary, a religion oriented organization like Knights of Columbus or Methodist Men, and various other fraternal organizations is not expected to automatically

inhibit himself or herself from acting whenever a case involving a member of his or her group happens to come before him or her for action. A member in good standing of any reputable organization is expected all the more to maintain the highest standards of probity, integrity, and honor and to faithfully comply with the ethics of the legal profession. 

 

Petitioner next imputes grave abuse of discretion against the IBP

Board of Governors for not ruling on her several charges, thereby

invoking her theory that her present petition could be treated

both as a petition for review under Rule 45 and a petition for

certiorari under Rule 65 of the Rules of Court. But these remedies

are mutually exclusive and not alternative or successive; when

the first is available, the second cannot be resorted to.

[15] Moreover, we have already stated in our Resolution[16] of

October 13, 1992 that only issues originally pleaded in the

complaint, there having been no amendment to it, are the issues

to be tried.Accordingly, the alleged other misdeeds of the

respondent, namely: attempting to bribe a deportation hearing

officer in respect to the Philippine Plaza bombing incident;

pocketing of the grease money intended for the above attempted

bribery; having abetted the perpetuation of fraud in the case for

dissolution of petitioners conjugal partnership; and receiving

privilege from a party whose interest is adverse to that of the

petitioner, need not be inquired into nor may this Court re-

examine and re-evaluate whatever evidence, if any, has been

presented by the petitioner before the IBP Board of Governors.

 

We now proceed to address petitioners contentions that the

finding of no prima facie case against the respondent is contrary

to the facts and circumstances disclosed by the records.

 

Generally, a prima facie case consists of that amount of evidence

which would be sufficient to counterbalance the general

presumption of innocence and warrant a conviction, if not

countered and contradicted by evidence tending to contradict it

and render it improbable, or to prove other facts inconsistent with

it.[17] It is in this context that, in its Resolution of October 13,

1992, the Court directed the IBP Board of Governors to look into

whether or not, on the basis of all the records before it, there

is prima facie case to warrant reception of evidence or if

circumstances warrant the outright dismissal of the

administrative complaint against the respondent. The challenged

Resolution of the IBP Board of Governors shows faithful

compliance with this Courts directive.

 

Contrary to petitioners allegations that the finding of lack of

a prima facie case insofar as the charge of massive borrowing of

post-dated checks by the respondent is derived solely from

speculations and averments unsubstantiated by documentary

proof, and also contrary to the nature of the checks submitted by

the petitioner, there are telling circumstances found by the

Investigating Commissioner which fully and correctly support the

contested findings of the IBP Board of Governors. To quote a few

of such circumstances:Complainant claims that when she discovered in late 1986 that Atty. Saludo had not been funding all the checks since 1984, she issued stop-payment orders and/or reduced account balances. In other words, it took her two (2) years to discover that he was not funding the checks. We find this unbelievable considering that complainant being, as she claims, a business woman. Moreover, by such assertion, she implies that prior to 1984, Atty. Saludo was funding his checks. xxx

 Complainant likewise contradicted her foregoing allegations in her

verified Reply, in which she made a comparison of the checks which she issued to respondent and vice-versa and she came up with the following comparative analysis: 

COMPLAINANT RESPONDENT   

  Number Value Number Value         1979 - - 10 P 1,155,000.001980 - -   760,000.001981 8 P 15,206.00 6 795,000.001982 48 631,860.50 18 1,453,000.001983 175 2,532,277.00 24 3,761,500.001984 227 10,732,495.00 31 9,850,000.001985 21 1,846,000.00 1 230,000.001986 8 310,500.00             Total   P16,068,338.50   P 18,004,500.00

 

The foregoing data, however, shows that complainant owes respondent the sum of P1,936,161.50. It appears contrary to complainants allegations that it was Atty. Saludo who was borrowing checks from me and pretending to repay my capital plus interest. Following complainants theory that she was the one lending respondents money from 1981 to 1985, it is unbelievable that she still continue to lend him money after 1981 if he stopped being proper in his financial dealings with her in 1981. 

xxx xxx xxx

 More significantly, the records show that complainant received checks in huge amounts from respondent and, in turn, complainant gave respondent several checks in small, identical amounts with consecutive check numbers and in intervals of fixed periods which are features of installment payments. It shows that it was respondent who was lending money to complainant in her money market operations and the checks she issued were installment payments of her borrowings xxx.[18]

 The fact that complainant was the one borrowing from respondent and not the other way around is also shown by the fact that she issued replacement checks for her dishonored checks. xxx

 If said replacement checks were issued to replace dishonored checks, she would not have been issuing them, placing the word replacement on the face thereof, which she claims as mere accommodation.[19]

 

The transactions involving post-dated checks could not then, as

advanced by the petitioner, constitute a prima facie case for

grave professional misconduct by the respondent. Even from the

viewpoint of petitioners submission that she was the lender of

post-dated checks and respondent was the borrower, still it is

clearly evident that such arose from the parties personal dealings

and relationship, and not from an attorney-client relationship.

These alleged transactions involved a purely personal interest, a

civil transaction.

 

In Uy vs. Gonzales,[20] we held that a proceeding for suspension or

disbarment is not in any sense a civil action; it involves no private

interest and affords no redress for private grievance. They are

undertaken and prosecuted solely for public welfare. Nonetheless,

a lawyer may be disbarred or suspended for any 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. In

the present case, the petitioner failed to prove any of the

circumstances enumerated above, by the subject post-dated

checks transactions, and by the other charges against the

respondent as hereunder noted.

 

The IBP Board of Governors dismissed the charge that the

respondent pocketed the settlement money due to Nonoy Zuiga

and Sammy Villarin from the Philippine Plaza for their injuries in

the bombing incident in 1980, on its findings that the petitioners

complaint stating that we later learned that Atty. Saludo got all

the money that the victims and we were entitled to is plainly

hearsay; that the joint affidavit of Messrs. Zuiga and Villarin never

imputed the alleged appropriation of the money by the

respondent; and that the unexplained delay of nine years before

the complaint for disbarment was filed casts suspicion on the

motive of the petitioner.

 

Moreover, it appears that despite the order of the Investigating

Commissioner requiring petitioner to submit receipts from the

Philippine Plaza for payments to the victims received by Atty.

Saludo, she failed to comply therewith. Such assessments indeed

justify the outright dismissal of that imputation.

 

On the alleged cash borrowings of the respondent from the

petitioner, we see no reason to depart from the findings of the IBP

Board of Governors that the charge was incredulous and contrary

to normal human behavior. As pointed out by the Investigating

Commissioner in his Report and Recommendation:

 

The complaint also states that these borrowings accumulated over a period of years from 1981 and that 1981 marked the start of the period when he stopped being very proper in his dealings with us concerning money matters. (Complaint, p. 4). If it were so, we find difficult to understand why she continued, as she claims, lending him cash and checks in 1982, 1983, 1984 and 1985.She further claims in one breath that [respondents] cash borrowings amounted to not less than P50,000 each time, and because of her trust on him, she did not ask him to issue receipts. Yet in another breath, she claims to have check receipts evidencing alleged gifts of lechon to [respondent] with value less than a thousand pesos (Annex A-1, Complaint). Why she did not ask for receipts of [respondents] cash borrowing amounting, as she claims, from P50,000.00 and to as high as P500,000.00 cash is something we could not comprehend.

 

The incredible aspect of the charge is further shown by her assertion that at one instance, respondent borrowed cash from her in the amount of half a million pesos, and that her maid or yayadelivered to him said cash of P500,000.00. We find it contrary to normal behavior for the complainant to entrust to her yaya that amount of cash for delivery to the respondent.[21] (Words in brackets supplied).

 

Finally, we agree with the IBP Board of Governors that

the charge relative to the supposed unwarranted solicitations in t

he form of gift certificates, lechon and expensive attach

cases, is negated by the petitioners own admission that she

gave those gifts in appreciation of respondents concerns for her a

nd her familysinterests. The related charge that

the respondent requested for, and got, two pianos in 1985 is

completely belied by the checks dated 1980, 1981 and 1982,

evidencing respondents payment therefor.[22] Besides,

these were plainly personal dealings, not professional

misconduct.

 

The Court reiterates that the power to disbar must be

exercised with great caution, and only in a clear case of

misconduct that seriously affects the standing and character of a

lawyer as an officer of the court and as a member of the Bar. To

be the basis of disciplinary action, the lawyers conduct must not

only be immoral but grossly immoral. That is, it must be so

corrupt as to constitute a criminal act or as unprincipled as to be

reprehensible to a high degree or committed under such

scandalous or revolting circumstances as to shock the common

sense of decency.[23] For the Court to exercise its disciplinary

powers, the case against the respondent must be established by

clear, convincing and satisfactory proof. Indeed, considering the

serious consequences of disbarment or suspension of a member

of the Bar, the Court has consistently held that clear

preponderant evidence is necessary to justify the imposition of

the administrative penalty.[24]

 

In Estrella Real Estate Corporation vs. Court of Appeals,

[25] the Court declared that in the absence of any showing that the

findings of the IBP are totally devoid of support in the record or

that they are so glaringly erroneous as to constitute serious abuse

of discretion, such findings must stand.  Consequently, absent

any showing that there is grave abuse of discretion in dismissing

the complaint, the Court must give credence to the findings and

recommendation of the Investigating Commissioner and the IBP

Board of Governors that the complaint must be dismissed for lack

of merit.

 

Given the foregoing, the Court finds petitioners demand for

a full-dress hearing to be without basis. It is only when the

complaint bears  merit, or when theanswer fails to show that

the complaint indeed lacks merit, or when the respondent fails to

file an answer that an investigation shall proceed.  Otherwise, if

thecomplaint is bereft of merit, either on its face or as proven by

respondents answer, it will be unjust to mandate the Investigator

to conduct a full-dress investigation.[26] Here, the petitioner has

not even carried well enough the burden of establishing a prima

facie case against the respondent.

 

WHEREFORE, the petition is DENIED and the assailed Resolution

of the IBP Board of Governors, dated March 30, 1996, dismissing

the complaint against respondent in Adm. Case No. 3297

is AFFIRMED.

 

SO ORDERED.

 

 

 

  

CANCIO C. GARCIAAssociate Justice

 

 WE CONCUR:    

REYNATO S. PUNOAssociate Justice

Chairperson  

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

RENATO C. CORONAAssociate Justice

  

ADOLFO S. AZCUNAAssociate Justice

  

 

A T T E S T A T I O N I attest that the conclusions in the above resolution were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.  

REYNATO S. PUNOAssociate Justice

Chairperson, Second Division  

C E R T I F I C A T I O N Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above resolution were reached in consultation

before the case was assigned to the writer of the opinion of the Court.  

ARTEMIO V. PANGANIBANChief Justice

 

[1] Rollo, p. 50.[2] Id. at 51-82.[3] Record, Volume 1, pp. 1-23.[4] Record, Volume II-B, pp. 381-428.[5] Record, Volume II-B, pp. 513-564.[6] Record, Volume II-B, pp. 573-589.[7] Record, Volume II-B, pp. 718-728.[8] Record, Volume II-B, pp. 769-771.[9] Record, Volume II-B, p. 769.[10] Rollo, pp. 80-82.[11] Id. at 51-82.[12] Record, Volume I, p. 245.[13] Rollo, p. 129.[14] Record, Volume II, pp. 2-3.[15] Banco Filipino and Mortgage and Savings Bank vs. Court of Appeals, G.R. No. 132703, June 23, 2000, 334

SCRA 305.[16] Record, Volume II-B, pp. 769-771.[17] Bautista vs. Sarmiento, G.R. No. L-45137, September 23, 1985, 138 SCRA 592.[18] Rollo, pp. 66-68.[19] Id. at 75-76.[20] Adm. Case No. 5280, March 30, 2004, 426 SCRA 422, 430.[21] Rollo, pp. 63-64.[22] Petitioners Complaint, Record, Volume I, pp. 5-6.[23] Dante vs. Dante, A.C. No. 6486, September 22, 2004, 438 SCRA 582.[24] Lilia Tabang and Concepcion Tabang vs. Atty. Glenn C. Gacott, Adm. Case No. 6490, September 29, 2004, 439

SCRA 307.[25] Estrella Real Estate Corp. vs. Court of Appeals, G.R. No. 128862, September 30, 1999, 315 SCRA 650.[26] Nicanor B. Gatmaytan, Jr. vs. Atty. Isidro C. Ilao, A.C No. 6086, January 26, 2005, 449 SCRA 269.

SECOND DIVISION

[A.C. No. 5225. April 29, 2003]

SPOUSES WILFREDO BOYBOY and LYDIA BOYBOY, petitioners, vs.ATTY. VICTORIANO R. YABUT, JR., respondent.

D E C I S I O N

Ei incumbit probotio qui dicit, non qui negat.He who asserts, not he who denies,

must prove.

BELLOSILLO, J.:

This administrative case against Atty. Victoriano Yabut, Jr., stemmed from a complaint filed by spouses Wilfredo Boyboy and Lydia Boyboy accusing him of blackmail and extortion, and seeking his disbarment from the practice of law.

Complainant-spouses alleged that sometime in November 1999 respondent called complainant Dr. Lydia Boyboy at her clinic in Angeles City threatening to charge her with estafa before the NBI and cause the revocation of her physicians license unless complainant paid him P300,000.00 informing her at the same time that he was in possession of incriminatory evidence against her; on 7 December 1999 respondent went to the clinic of Dr. Boyboy and personally served on her a subpoena from the NBI requiring complainants to appear in the investigation of the case for estafa through falsification of public documents which respondent filed against the complainants; the following day, complainant Wilfredo Boyboy visited respondent at his law office to discuss the case; respondent intimidated to Wilfredo Boyboy that he had already persuaded Atty. Cris Balancio, NBI Director for Region III, to dismiss the case for a consideration ofP400,000.00.

Complainants further averred that, appalled by the increased demand, they arranged a meeting with the NBI Director to inquire about the demand for P400,000.00, and Atty. Balancio denied having made such a demand and reacted adversely to the name-dropping of respondent; that Atty. Balancio recommended an entrapment operation against respondent but, for lack of funds, the planned entrapment did not push through.Instead, complainants only filed a criminal complaint under Art. 282, The Revised Penal Code,[1] against respondent in connection with the blackmail and extortion incident.

Respondent denied the charge as unfounded, baseless and groundless, contending in his Answer that the disbarment case was deliberately resorted to by complainants to harass and make even with him as he filed criminal cases against the complaining spouses, and an administrative case against Dr. Lydia Boyboy. He narrated that he came to know complainants only when a certain Ms. Arlene Sto. Tomas sought his professional services. Ms. Sto. Tomas was a member of CHAMPUS, the entity handling the Medicare benefits of U.S. veterans and their families. He said that Ms. Sto. Tomas discovered that complainants, among other members of a syndicate, received

US$90,000.00 from CHAMPUS after filing fictitious medical claims in the name of Ms. Sto. Tomas and her family.

According to respondent, he agreed to handle the case of Ms. Sto. Tomas and filed the corresponding criminal cases for estafa through falsification of public documents and perjury, and an administrative case for the revocation of Dr. Boyboys license. In fact, complainants tried to persuade Ms. Sto. Tomas to withdraw the cases against them but in vain. As Ms. Sto. Tomas showed no sign of softening her stance against complainants, the latter started filing cases against her to force her to withdraw the cases she had filed, and against respondent to force him to withdraw as counsel for Ms. Sto. Tomas.

The Court referred this case to the IBP for its Committee on Bar Discipline to investigate which thereafter submitted its Report and Recommendation, which was adopted by the IBP, for respondents suspension from the practice of law for three (3) months.

After thoroughly going over the records, we feel very uncomfortable with the recommendation of the Committee on Bar Discipline of the Integrated Bar of the Philippines (CBD-IBP). The CBD-IBP may have arrived at its conclusion on the basis alone of affidavits and pleadings without any testimonial evidence, contrary to established procedure, despite the fact that the charges of blackmail and extortion are factual matters which must be established and proved with sufficient competent evidence.

We must emphasize that a mere charge or allegation of wrongdoing does not suffice.Accusation is not synonymous with guilt. There must always be sufficient evidence to support the charge. This brings to the fore the application of the age-old but familiar rule that he who alleges must prove his allegations. In the case before us, it is enough for respondent to deny complicity in the alleged blackmail or extortion, without more, for he is not under obligation to prove his negative averment, much less to disprove what has not been proved by complainants. Thus, we have consistently held that if the complainant/plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner the facts upon which he bases his claim, the respondent/defendant is under no obligation to prove his exception or defense.

The records are barren of any evidence that would prove respondents culpability. Other than complainants naked assertion that respondent demandedP300,000.00 from them which was later allegedly increased to P400,000.00, in exchange for the dropping of the charges against them for estafa, no other proof was presented to back up the accusation. Precisely, the absence of any evidence of blackmail and extortion prompted the CBD-IBP to resolve the case against respondent solely on the self-serving declarations of the parties set forth in their pleadings. Thus the Report and Recommendation states -

After a painstaking scrutiny and careful evaluation of the statements and counter-statementsmade by the parties in their respective pleadings, the undersigned finds

that complainants were able to sufficiently establish their charge by a clear preponderance of evidence (underscoring supplied).

The records lay bare the following documents of complainants: (a) Annex A of theComplaint, which is the cellular phone number of Atty. Cris Balancio, NBI Director, Region III; (b) Annex B of the Complaint, Complaint-Affidavit of Dr. Lydia Boyboy; (c) Annex C of the Complaint, Salaysay of Wilfredo Boyboy; (d) Annex D of the Complaint, a newspaper clipping stating that complainant Dr. Lydia Boyboy was charged with estafa thru falsification of public documents; (e) Annex E of the Complaint, letter of the Chief Attorney of the Professional Regulations Commission (PRC) requiring Dr. Boyboy to submit a counter-affidavit in connection with a complaint filed against her for unprofessional and/or dishonest conduct; (f) Annex A of the Reply, complainants Motion to Dismiss the charge for perjury filed with the City Prosecutor of Manila; (g) Annexes A-1 and A-2 of the Reply,Counter-Affidavits of spouses Wilfredo and Lydia Boyboy; (h) Annex A-3 of the Reply,Subpoena to Wilfredo Boyboy issued by the City Prosecutor of Manila in connection with a perjury case; and, (i) Annexes B - B-4, inclusive, of the Reply, Complaint-Affidavit andReply-Affidavit of Wilfredo Boyboy.

It is all too obvious from the foregoing that there is a dearth of evidence which would in any way prove the commission of blackmail and extortion, much less incriminate respondent for those offenses. Even the baseless postulations in the affidavits would certainly not carry the day for complainants in view of their lack of evidentiary value. It is not difficult to manufacture charges in the affidavits, hence it is imperative that their truthfulness and veracity be tested in the crucible of thorough examination. The hornbook doctrine is that unless the affiants themselves take the witness stand to affirm the averments in their affidavits, those affidavits must be excluded from the proceedings for being inadmissible and hearsay,[2] as in this case.

The standard of substantial evidence required in administrative proceedings is more than a mere scintilla.[3] It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. While rules of evidence prevailing in courts of law and equity shall not be controlling, the obvious purpose being to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order, this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without basis in evidence having rational probative force.[4]

Lamentably, the evidence against respondent does not meet the mandated standard.At best, complainants would indulge in presumptions which, unfortunately, cannot be a valid basis to slap respondent with administrative sanctions.

It is relevant to note at this point that on 16 October 2000 the Assistant City Prosecutor of Angeles City dismissed for lack of probable cause the criminal case against respondent Atty. Victoriano Yabut, Jr., for violation of Art. 282 of The Revised Penal Code, in connection with the alleged blackmail and extortion filed by complainants against respondent.[5] Relevant excerpts of the Assistant City Prosecutors findings follow

As regards the accusation against Atty. Yabut, the same would necessarily fail on the basis alone of the allegation that he made the demand for money right there in his law office x x x x. Nevertheless, even assuming en arguendo that this case against Atty. Yabut is given due course, the result would still be the same. The existence of a very strong motive on the part of Wilfredo Boyboy or his wife Dr. Boyboy to get back at him for exposing them in their modus operandi victimizing CHAMPUS beneficiaries, whether true or not, relegate their accusation to a mere made-up story or possibly a concoction designed to silence Atty. Yabut. Doubtful of its commission, as it is, the doubt should always favor the one accused. In addition, proof of this instant charge is uncorroborated except the lone statement of Wilfredo Boyboy. There must be positive proof of a clear and convincing evidence against Atty. Yabut considering that the charge is a very serious accusation with far reaching implications x x x x. Therefore, considering that x x x the evidence are not enough to indict the respondents of the charge, this Investigation opines for the outright dismissal of this case for lack of a prima facie case.[6]

Thus, we are perplexed: If complainants could not even hurdle the low quantum and quality of proof needed to sustain a finding of probable cause, how could the CBD-IBP conclude with definiteness that complainants evidence has crossed the much more rigid threshold of substantial evidence?

Concededly, respondents defense of denial is inherently weak. But where denial is set up as a defense, courts should not at once look upon it with wary eyes for there are occasions where it could actually be the real and untarnished truth. Indeed, what other kind of evidence must be adduced by respondent, who is asserting the non-occurrence of extortion or blackmail, if not denial?

Quite surprisingly, the very plain terms of the Report and Recommendation would show in effect that the CBD-IBP erroneously passed upon the credibility of witnesses -

In the first place, complainants have averred in chronological order and in a detailed manner the events involved in the charge. There is hardly any reason to doubt their asseverations as they contained details that only an insider or one privy to the transaction would have known.

Secondly, the undersigned had laboriously searched for any improper motive on the part of the complainants that drove them to file the instant suit but found none. The record, however, shows that complainants and respondent had no previous acquaintance and did not know each other since Adam. It was only when Ms. Sto. Tomas was referred to respondent that the latter came to know for the first time about the complainants x x x x Such being the case, it would, therefore, be utterly unthinkable and taxing to the imagination to consider the instant case as a harassment suit. Hence, it is safe to conclude that complainants have been

genuinely moved by a serious quest for justice for the wrongful and illicit conduct as shown by respondent(underscoring supplied).

The words now written in bold in the first and second paragraphs above quoted for emphasis are but puerile dialectics and conclusions devoid of evidentiary support. It is significant that in its Order of 21 August 2001, the CBD-IBP dispensed with a full-dress hearing, i.e., the presentation of testimonial evidence, purportedly to expedite the proceedings. Instead, it required the parties to simply file their respective memoranda and thereafter submit the case for resolution on the basis of the pleadings.[7] Thus, there was obviously nothing upon which an assessment on credibility of witnesses may be predicated, since the CBD-IBP never had the opportunity of hearing the witnesses, or observing their deportment and manner of testifying.

The oftentimes thin but clear line between fact and prevarication is not always discernible from a mere reading of the cold pages of the records. Certainly, only a judge who had personally heard the witnesses and observed their demeanor on the stand can arrive at an informed and intelligent judgment on whom to believe and whom not to believe.

There can be no quarrel that the act of the CBD-IBP in dispensing with the hearing is fairly within the bounds of permissible legal procedure; for after all, as observed in the ponencia, a trial-type hearing is not always de rigueur in administrative proceedings. But we emphasize that since the CBD-IBP inexorably anchored its Report and Recommendation on complainants credibility, a trial-type hearing becomes an indispensable requirement in this case.

It must be stressed that the CBD-IBP is tasked to look into and investigate beyond the serious allegations of wrongdoing purportedly committed by a member of the Bar, and thereafter recommend the imposition of the proper administrative penalty upon the culpable party, when warranted by the evidence. Failure of respondent to appear at the scheduled hearings despite notices did not relieve the CBD-IBP of the duty to diligently inquire into the factual assertions of complainants in their pleadings and affidavits. Ordinary prudence dictates that it should have proceeded with the hearings and accordingly received ex parte the testimonial evidence of complainants. If respondent failed to appear once or twice because he was abroad to have a thorough medical check-up and the long awaited relaxation from hectic schedules, he should have been warned that if he should not appear again the evidence of the complainants would be received ex parte and he may be considered to have waived his right to appear and present his evidence thereafter. But no such warning appears to have been made before this case was eventually decided on the merits.

Considering the dismal state of complainants evidence, we cannot rule out the possibility that, as asserted by respondent, the instant disbarment case was ill-motivated being retaliatory in nature and aimed at striking back at him for having filed the criminal case for estafa and an administrative case for grave misconduct, dishonesty and malpractice against Dr. Lydia Boyboy. Verily, respondents fears of being stricken back may just as well be viewed as good and equally plausible as the blackmail

and extortion alleged by complainants but which have not been established with an iota of evidence or any degree of certitude.

We can only echo in principle our admonition in Castaos v. Escao, Jr.,[8] which although involving a bribery charge against a judge, may nevertheless apply by analogy in the present recourse:

An accusation of bribery is easy to concoct and difficult to disprove. Thus, to our mind, thecomplainant must present a panoply of evidence in support of such an accusation. Inasmuch as what is imputed against the respondent judge connotes a misconduct so grave that, if proven, it would entail dismissal from the bench, the quantum of proof required should be more than substantial. We have held in the case of Lopez v. Fernandez that:

Numerous administrative charges against erring judges have come to this Court and We viewed them with utmost care, because proceedings of this character, according to In Re Horrilleno, as set forth in the opinion of Justice Malcolm, are in their nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The charges must therefore, be proved beyond a reasonable doubt. This 1992 decision has been subsequently adhered to in a number of cases decided by this Court.

x x x x In order that the allegation of a charge of this nature may not be considered a fairy tale, evidence other than the doubtful and questionable verbal testimony of a lone witness should be adduced. Entrapment should have been pursued. Evidence of a reasonable report to police authorities should have been presented. Record of where the bribe money came from, its specific denominations and the manner respondent accepted and disposed of it should have been clearly shown (underscoring supplied for emphasis).

So must it be in the instant case. An accusation for blackmail and extortion is a very serious one which, if properly substantiated, would entail not only respondents disbarment from the practice of law, but also a possible criminal prosecution. To be sure, it will take more than mere pleadings and unreliable affidavits to lend an aura of respectability and credibility to complainants accusations. A finding of guilt should only come from the strength of complainants evidence, not from the weakness of respondents defense.

In this connection, the sad reality in cases of this nature is that no witness can be called to testify on the attempts at extortion since no third party is ordinarily involved to witness the same. What independent evidence can there be in a situation like this, when the only persons present are the ones who made the demand and on whom the demand was made?

We need not search far and wide for answers, for it was already given in the aforecited case of Castaos v. Escao, Jr. Entrapment has been a tried and tested

method of trapping and capturing felons in the act of committing clandestine crimes, such as sale and distribution of prohibited drugs, blackmail, extortion and bribery. It can provide hard-to-dispute real evidence of culpability in the form of the marked money. Had complainants pursued the alleged planned entrapment of respondent, their case could have assumed an entirely different complexion.

Complainants explanation that they failed to entrap respondent for lack of funds, is too lame and flimsy an excuse. It was not necessary for them to raise the whole amount allegedly demanded by respondent to set up an entrapment, for a few genuine bills stuffed with blank papers cut to resemble money bills would have been sufficient for the purpose. Law enforcement authorities have employed this standard technique in cases where the amount demanded by the person to be apprehended is too substantial.Undoubtedly, Director Balancio of the NBI, who purportedly suggested the entrapment of respondent, should be conversant with such technique but, unfortunately, no explanation was given for not applying the accepted standard procedure except allegedly for lack of funds. This, we say, is incredible!

Even more strange is the fact that Director Balancio was not even presented to testify in behalf of complainants to prove at least that the supposed blackmail or extortion was reported to him, and that complainants indeed sought his help relative thereto.

Looking at the present instance with an absolutely objective eye, we are not disposed to accept as gospel truth complainants imputation of criminal or administrative wrongdoing to respondent in view of the existence of a wide chasm between the accusations and proof. The accusations should be fittingly treated for what they are - mere accusations founded on speculation and conjecture, if not sheer temerity. For these reasons, we are unable to yield assent to the Report and Recommendation of the CBD-IBP, otherwise the decision that would be handed down would unlock Pandoras box of abuse. Perhaps we may not realize it, but lawyers would be at the mercy of the shrewd, the sinister, and the disgruntled who could very easily vent their rancor against members of the Bar through the mere expedient of hurling unsubstantiated - worse, even malicious and prevaricated - claims. Surely, all lawyers may fall victims of this vicious scheme.

WHEREFORE, the instant administrative complaint for disbarment against respondent ATTY. VICTORIANO R. YABUT, JR., is DISMISSED.

SO ORDERED.

Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

[1] Art. 282 punishes the crime of Grave Threats. Blackmailing and extortion are punished under Art. 283 on Light Threats. See Reyes, The Revised Penal Code, 1993 ed., p. 559.

[2] See People v. Quidato, G.R. No. 117401, 1 October 1998, 297 SCRA 1, 8.

[3] Ang Tibay v. The Court of Industrial Relations, 69 Phil. 635 (1940).

[4] See Preceding Note.

[5] Docketed as I.S. No. 00-0592, Wilfredo Boyboy and Dr. Lydia Boyboy v. Atty. Victoriano Yabut, Jr. and Arlene Sto. Tomas,

[6] Annex B. IBP Records, Vol III, p. 11-13.

[7] See IBP Records, Vol. III, p. 54.

[8] Adm. Matter No. RTJ-93-955, 251 SCRA 174, 184-185, 191.

EN BANC

[A.C. No. 4738. June 10, 2003]

VIOLETA FLORES ALITAGTAG, complainant, vs. ATTY. VIRGILIO R. GARCIA, respondent.

R E S O L U T I O N

PER CURIAM:

This refers to the motion for reconsideration of the Resolution of this Court, dated February 6, 2002, finding respondent guilty of grave misconduct rendering him unworthy of continuing membership in the legal profession and ordering his disbarment from the practice of law and his name stricken off the Roll of Attorneys.

In essence, respondent reiterates his innocence by denying authorship and participation in the falsification of the subject deed of donation. However, he admits his negligence and expresses remorse for his failure to diligently perform his duties as notary public with respect to the notarization of the said deed of donation. Respondent pleads for compassion and mercy and asks that the Court be more lenient in imposing penalty for the infractions he has committed.

As early as the case of Santos vs. Dichoso[1] and reiterated in the case of Martin vs. Felix Jr.,[2] this Court held:

In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty.

There is no question that respondent was remiss in the performance of his duties as a notary public. In fact, there is preponderance of evidence showing that he subverted the clear provisions of Section 1[3] of Public Act 2103, otherwise known as An Act

Providing for the Acknowledgement and Authentication of Instruments and Documents within the Philippine Islands and Section 246 [4] of Act 2711, otherwise known as the Revised Administrative Code of 1917.

Respondent is likewise found guilty of harassing the occupants of the property subject of the donation by asking Meralco to disconnect its services to the property and by posting security guards to intimidate the said occupants. These acts do not speak well of his standing as a member of the bar. Rule 7.03, Canon 7 of the Code of Professional Responsibility provides that a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. By engaging in acts that undermine recognition of and respect for legal processes, respondent has clearly committed conduct that adversely reflects on his fitness to be a member of the legal profession.

However, as to the issue of falsification of the subject deed of donation, a review of the records at hand shows that there is no clear and convincing evidence to prove that respondent is the author of the forged signature of the donor or that he actively participated or conspired with any party in forging the said signature as it appears in the questioned deed of donation. The only proven link respondent has to the falsified deed is the fact that he notarized it. The Court agrees with the observation of the Investigating Commissioner of the IBP that there is no proof that respondent knew that the signature of Cesar Flores appearing on the deed of donation was falsified. Complainant never disputed respondents claim that the deed of donation was already signed when personally handed to him by Cesar Flores, Sr. There is no reason shown why respondent should have doubted that the donors signature was forged. Moreover, the fact that respondent was later on given a special power of attorney to administer and sell the property covered by the forged deed of donation does not prove his participation in the falsification of the said deed. Records reveal that there is a gap of more than five years between the date of notarization of the subject deed of donation on September 19, 1991[5]and the execution of the special power of attorney in favor of respondent on November 7, 1996.[6] If respondent was indeed part of a scheme to defraud the other children of Cesar Flores, we find it illogical that he and his cohorts would wait that long for him to be given the power of attorney to dispose of the subject property.

Likewise, the failure of the respondent to submit to the proper authorities a copy of the subject deed of donation which he notarized does not directly prove that he tried to cover up the falsification committed.

It must also be noted that in the criminal case for falsification filed by complainant against several accused including herein respondent, the city prosecutor of Pasig found no sufficient evidence to indict respondent.[7] Even the decision of the lower court in Civil Case No. 65883[8] which was filed for the nullification of the subject deed of donation did not contain any specific finding as to the alleged participation of respondent in the falsification of the subject deed.[9]

In sum, complainant failed to discharge her burden of proving the liability of respondent with respect to the falsification of the questioned deed of donation.

Suspicion, no matter how strong, is not enough to warrant the disbarment of respondent.

Indeed, the power to disbar must be exercised with great caution, and may be imposed only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the Court and as a member of the bar.[10]Disbarment should never be decreed where any lesser penalty could accomplish the end desired.[11] Without doubt, a violation of the high moral standards of the legal profession justifies the imposition of the appropriate penalty, including suspension and disbarment.[12] However, the said penalties are imposed with great caution, because they are the most severe forms of disciplinary action and their consequences are beyond repair.[13]

A review of pertinent and relevant jurisprudence convinces the Court to reconsider the penalty imposed on herein respondent.

In Maligsa vs. Cabanting,[14] the respondent lawyer was disbarred after this Court found out that he notarized a forged deed of quitclaim. However, the penalty of disbarment was imposed after considering that he was previously suspended from the practice of law for six months on the ground that he purchased his clients property while it was still the subject of a pending certiorari proceeding.

In Flores vs. Chua,[15] the respondent lawyer was disbarred after he was found guilty of notarizing a forged deed of sale. But again, the penalty of disbarment was imposed because in a previous administrative case, respondent was found guilty of violating Rule 1.01[16] of the Code of Professional Responsibility and had been sternly warned that a repetition of a similar act or acts or violation committed by him in the future will be dealt with more severely. The Court also took into consideration the other infractions or acts of misconduct committed by the respondent such as forum shopping, committing falsehood, injurious, willful and unprofessional conduct of publishing, or causing the publication, in a newspaper of general circulation of a pending case, causing undue delay in the court proceedings and for notarizing a document without the party being present.

In Roces vs. Aportadera,[17] the Court suspended the respondent lawyer from the practice of law for a period of two years after it was found out that he has dubious involvement in the preparation and notarization of the falsified sale of his clients property.

Thus, taking into consideration the foregoing jurisprudence, the totality of the acts of misconduct proven to have been committed by herein respondent, his admission of negligence, plea for compassion and the fact that this is his first offense, the Court finds it proper to reconsider the penalty imposed. Nonetheless, the Court reiterates the principle that where the notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any.[18] The penalty of suspension, both from respondents practice of law and from his commission as a notary public is apropos to the offenses he committed.

WHEREFORE, the motion for reconsideration is GRANTED. Respondent is REINSTATED as a member of the Bar but he is SUSPENDED from the practice of law and from his commission as a notary public for a period of three (3) years, effective immediately, with a warning that a commission of the same or similar acts in the future shall be dealt with more severely.

The Clerk of Court of this Court is DIRECTED to immediately circularize this Resolution for the proper guidance of all concerned.

Let copies of this Resolution be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., andAzcuna, JJ., concur.

[1] 84 SCRA 622, 627 (1978).

[2] 163 SCRA 111, 130(1988).

[3] Section 1. (a) The acknowledgement shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. (Emphasis ours)

[4] Sec. 246. Matters to be entered therein. - The notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to, or acknowledging the instrument, the witnesses, if any, to the instrument, the fees collected by him for his services as notary in connection therewith, and, when the instrument is a contract, he shall keep a correct copy thereof as part of his records, and shall likewise enter in said records a brief description of the substance thereof, and shall give to each entry a consecutive number, beginning with number one in each calendar year. x x x. A certified copy of each months entries as described herein and a certified copy of any instrument acknowledged before him shall, within the first ten days of the month next following, be forwarded by the notary to the clerk of the court of first instance of the province (or city) where he exercises his office, and shall be filed under the responsibility of such officer, provided, that if there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of the certified copies herein required. (Emphasis ours)

[5] Exhibit G-1, p. 181, Vol. II, Original Records.

[6] Exhibit I-2, p. 188, Vol. II, OR.

[7] See Annex 7 to Respondents Comment, pp. 55-57, Rollo.

[8] Entitled, Heir of Cesar Flores Namely: Maria Evangelina Flores Palparan, Plaintiff, vs. Gregorio G. Flores, Maria Eugenia Flores Garcia, Virgilio R. Garcia and Magdalena G. Flores, Defendants

[9] See RTC Decision, Exhibit Q, pp. 198-209, Vol. II, OR.

[10] Resurreccion vs. Sayson , 300 SCRA 129, 136 (1998); T-Boli Agro-Industrial Development Inc. vs. Solilapsi, AC No. 4766, December 27, 2002.

[11] Ibid.

[12] De Ere vs. Rubi, 320 SCRA 617, 622 (1999).

[13] Ibid.

[14] 272 SCRA 408 (1997).

[15] 306 SCRA 465 (1999).

[16] Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

[17] 243 SCRA 108 (1995)

[18] Flores vs. Chua, supra; Bernardo Vda. de Rosales vs. Ramos, AC No.   5645 , July 2, 2002

EN BANC

[Adm. Case No. 501. October 26, 1968.]

IN RE: DISBARMENT PROCEEDINGS AGAINST NOTARY PUBLIC ATTY. ZACARIAS MANIGBAS,Respondent.

SYLLABUS

1. LEGAL ETHICS; ATTORNEY; DISBARMENT; NOTARY PUBLIC; LACK OF CARE IN ASCERTAINING THE IDENTITY OF THE PERSONS ACKNOWLEDGING DOCUMENTS BEFORE HIM; INSTANT CASE. — Where there is no showing that respondent was in league with the bank officers who may have perpetrated a scheme in issuing fraudulent loans in violation of the charter of the Rural Bank of Lucena so as to warrant the finding that he had himself committed falsification and his participation in notarizing said documents is not inconsistent with lack of knowledge on his part of the fraud, the recommendation of the Solicitor General that respondent "be exonerated of the charge of falsification contained in the report of the NBI and submitted to the Supreme Court as basis of these proceedings," but that for his failure to exercise utmost care in ascertaining the identity of the persons acknowledging documents before him, he be warned to be more careful hereafter, with the further warning that a similar complaint against him in the future will merit more drastic action is approved.

D E C I S I O N

DIZON, J.:

Respondent Zacarias Manigbas, a member of the bar, was charged with alleged acts of falsification in violation of Article 171 of the Revised Penal Code, in that in the jurat of certain documents, later introduced in evidence as Exhs. D and E, he, as Notary Public, made it appear that said documents were subscribed, sworn to and signed by Pablo de la Cruz before him and in his presence, in Lucena City, when in truth and in fact they were signed in Manila and not in his presence. The matter having been referred to the office of the Solicitor General for appropriate action, the corresponding investigation was held, in the course of which said respondent was given ample opportunity to defend himself. Upon the evidence presented thereat, the Solicitor General made the following findings: jgc:chanrobles.com.ph

"Respondent thus admitted that in the performance of his duties as notary public of the Rural Bank of Lucena, he had not exercised utmost care so as to make sure that the person presenting the document for his signature as notary public was the same person who was supposed to sign and subscribe the document before him, relying merely on the assumption that the papers were in order because they were supposed to have been duly processed by the bank manager who, he also presumed, had seen to it that no defect existed in the pertinent documents and no irregularity had been committed in the preparation of the loan papers.

"From the evidence, presented, there is no showing that respondent was in league with the bank officers who may have perpetrated a scheme in issuing fraudulent loans in violation of the charter of the Rural Bank of Lucena so as to warrant the finding that he had himself committed falsification. His Participation in the accomplishment of the documents relative to the loan supposedly applied for by Pablo de la Cruz which is that of merely notarizing said documents is not inconsistent with lack of knowledge on his part of the fraud which was apparently perpetrated by other parties so as to make him equally liable or guilty of such fraud. His being a young lawyer would disincline us to believe that he could have consciously lent himself as a tool in the perpetration of fraudulent loans as the Lucena Rural Bank had been charged with. At least the evidence fails to link respondent to whatever fraudulent transactions may have been indulged in by the Bank." cralaw virtua1aw library

As a result of the above findings, and considering all the material evidence, the Solicitor General holds the view that the respondent "is chargeable only with failure to exercise utmost care in the performance of his functions as a Notary Public," and that his case "is similar to that of Tahimik Ramirez v.

Atty. Jaime Ner (Administrative Case No. 500, September 27, 1967) where it appeared that the respondent notarized a deed of sale of a vehicle without requiring the presence of the vendee during the execution of the document and in which case We held that the act committed by said respondent was not serious enough to justify disbarment nor suspension. As a consequence, the recommendation of the Solicitor General is that respondent herein "be exonerated of the charge of falsification contained in the report of the NBI and submitted to this Honorable Court as basis of these proceedings", but that for his failure to exercise utmost care in ascertaining the identity of the persons acknowledging documents before him, he be warned to be more careful hereafter, with the further warning that a similar complaint against him in the future will merit more drastic action.

As We consider the findings of the Solicitor General as fully borne out by the evidence, and the respondent, in his Answer dated September 29, 1968, has expressly agreed to and accepted the recommendation made in the report, both the findings and recommendation are hereby approved.

WHEREFORE, the herein respondent is hereby warned to be more careful in the future in the performance of his duties as Notary Public, and that any well grounded complaint in the future against him upon similar grounds will merit a stiffer penalty. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano, JJ., concur.

Zaldivar, J., did not take part.

EN BANC

[A.C. No. 5624. January 20, 2004]

NATASHA HUEYSUWAN-FLORIDO, complainant, vs. ATTY. JAMES BENEDICT C. FLORIDO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

This is an administrative complaint for the disbarment of respondent Atty. James Benedict C. Florido and his eventual removal from the Roll of Attorneys for allegedly violating his oath as a lawyer by manufacturing, flaunting and using a spurious and bogus Court of Appeals Resolution/Order.[1]

In her Complaint-Affidavit, Natasha V. Heysuwan-Florido averred that she is the legitimate spouse of respondent Atty. James Benedict C. Florido, but that they are estranged and living separately from each other. They have two children namely, Kamille Nicole H. Florido, five years old, and James Benedict H. Florido, Jr., three years old both of whom are in complainants custody. Complainant filed a case for the annulment of her marriage with respondent, docketed as Civil Case No. 23122, before the Regional Trial Court of Cebu City, Branch 24. Meanwhile, there is another case related to the complaint for annulment of marriage which is pending before the Court of Appeals and docketed as CA-G.R. SP No. 54235 entitled, James Benedict C. Florido v. Hon. Pampio Abarientos, et al.

Sometime in the middle of December 2001, respondent went to complainants residence in Tanjay City, Negros Oriental and demanded that the custody of their two minor children be surrendered to him. He showed complainant a photocopy of an alleged Resolution issued by the Court of Appeals which supposedly granted his motion for temporary child custody.[2]Complainant called up her lawyer but the latter informed her that he had not received any motion for temporary child custody filed by respondent.

Complainant asked respondent for the original copy of the alleged resolution of the Court of Appeals, but respondent failed to give it to her. Complainant then examined the resolution closely and noted that it bore two dates: November 12, 2001 and November 29, 2001. Sensing something amiss, she refused to give custody of their children to respondent.

In the mid-morning of January 15, 2002, while complainant was with her children in the ABC Learning Center in Tanjay City, respondent, accompanied by armed men, suddenly arrived and demanded that she surrender to him the custody of their children. He threatened to forcefully take them away with the help of his companions, whom he claimed to be agents of the National Bureau of Investigation.

Alarmed, complainant immediately sought the assistance of the Tanjay City Police. The responding policemen subsequently escorted her to the police station where the matter could be clarified and settled peacefully. At the police station, respondent caused to be entered in the Police Blotter a statement that he, assisted by agents of the NBI, formally served on complainant the appellate courts resolution/order. [3] In order to diffuse the tension, complainant agreed to allow the children to sleep with respondent for one night on condition that he would not take them away from Tanjay City. This agreement was entered into in the presence of Tanjay City Chief of Police Juanito Condes and NBI Investigator Roger Sususco, among others.

In the early morning of January 16, 2002, complainant received information that a van arrived at the hotel where respondent and the children were staying to take them to Bacolod City. Complainant rushed to the hotel and took the children to another room, where they stayed until later in the morning.

On the same day, respondent filed with the Regional Trial Court of Dumaguete City, Branch 31, a verified petition[4] for the issuance of a writ of habeas corpus asserting his right to custody of the children on the basis of the alleged Court of Appeals resolution. In the meantime, complainant verified the authenticity of the Resolution and obtained a

certification dated January 18, 2002[5] from the Court of Appeals stating that no such resolution ordering complainant to surrender custody of their children to respondent had been issued.

At the hearing of the petition for habeas corpus on January 23, 2002, respondent did not appear. Consequently, the petition was dismissed.

Hence, complainant filed the instant complaint alleging that respondent violated his attorneys oath by manufacturing, flaunting and using a spurious Court of Appeals Resolution in and outside a court of law. Furthermore, respondent abused and misused the privileged granted to him by the Supreme Court to practice law in the country.

After respondent answered the complaint, the matter was referred to the IBP-Commission on Bar Discipline for investigation, report and recommendation. The IBP-CBD recommended that respondent be suspended from the practice of law for a period of three years with a warning that another offense of this nature will result in his disbarment.[6] On June 23, 2003, the IBP Board of Governors adopted and approved the Report and recommendation of the Commission with the modification that the penalty of suspension be increased to six years.

The issue to be resolved is whether or not the respondent can be held administratively liable for his reliance on and attempt to enforce a spurious Resolution of the Court of Appeals.

In his answer to the complaint, respondent claims that he acted in good faith in invoking the Court of Appeals Resolution which he honestly believed to be authentic. This, however, is belied by the fact that he used and presented the spurious resolution several times. As pointed out by the Investigating Commissioner, the assailed Resolution was presented by respondent on at least two occasions: first, in his Petition for Issuance of Writ of Habeas Corpus docketed as Special Proc. Case No. 3898,[7] which he filed with the Regional Trial Court of Dumaguete City; and second, when he sought the assistance of the Philippine National Police (PNP) of Tanjay City to recover custody of his minor children from complainant. Since it was respondent who used the spurious Resolution, he is presumed to have participated in its fabrication.

Candor and fairness are demanded of every lawyer. The burden cast on the judiciary would be intolerable if it could not take at face value what is asserted by counsel. The time that will have to be devoted just to the task of verification of allegations submitted could easily be imagined. Even with due recognition then that counsel is expected to display the utmost zeal in the defense of a clients cause, it must never be at the expense of the truth.[8] Thus, the Code of professional Responsibility states:

CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

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

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of an opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Moreover, the records show that respondent used offensive language in his pleadings in describing complainant and her relatives. A lawyers language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession. [9] The lawyers arguments whether written or oral should be gracious to both court and opposing counsel and should be of such words as may be properly addressed by one gentlemen to another. [10] By calling complainant, a sly manipulator of truth as well as a vindictive congenital prevaricator, hardly measures to the sobriety of speech demanded of a lawyer.

Respondents actions erode the public perception of the legal profession. They constitute gross misconduct and the sanctions for such malfeasance is prescribed by Section 27, Rule 138 of the Rules of Court which states:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore.- A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so.

Considering the attendant circumstances, we agree with the recommendation of the IBP Board of Governors that respondent should be suspended from the practice of law. However, we find that the period of six years is too harsh a penalty. Instead, suspension for the lesser period of two years, which we deem commensurate to the offense committed, is hereby imposed on respondent.

WHEREFORE, in view of all the foregoing, Atty. James Benedict C. Florido is SUSPENDED from the practice of law for a period of two (2) years.

Let copies of this resolution be entered in the personal record of respondent as a member of the Bar and furnished the Bar Confidant, the Integrated Bar of the Philippines (IBP) and the Court Administrator for circulation to all courts of the country.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

SECOND DIVISIONEPIFANIA Q. BANTOLO, Adm. Case No. 6589Complainant,Present: PUNO, J.,

Chairman,- versus - AUSTRIA-MARTINEZ,CALLEJO, SR.,TINGA, and

CHICO-NAZARIO, JJ.ATTY. EGMEDIO B. CASTILLON, JR.,Respondent.

Promulgated:December 19, 2005 x-------------------------------------------------------------------x  

D E C I S I O N 

TINGA, J.:  

In a letter-complaint to the Integrated Bar of the Philippines (IBP)

dated 02 October 1997,[1] Epifania Q. Bantolo charged Atty.

Egmedio B. Castillon, Sr. of violating the lawyers oath and Section

20 of Rule 138 of the Rules of Court for having (i) wittingly or

willingly performed, promoted, or sued any groundless, false or

unlawful suit, and or giving aid or consent to the same; (ii)

delayed the just execution of the suit without legal or justifiable

cause and employing illegal means and unlawful force to do so;

(iii) blatantly showed disrespect to the Regional Trial Court by

disobeying its lawful orders; and (iv) for employing unlawful and

illegal means to attain his ends.

 

According to complainant, respondent is the lawyer and one of

the defendants in a case involving a parcel of land in Valderrama,

Antique.[2] The case was decided in favor of the complainant and

her co-plaintiffs, and thereafter, a writ of execution was issued, by

virtue of which, defendants were ejected from the property.

However, respondents, with his co-defendants subsequently

entered the disputed property and harvested the palay planted

therein.[3] Plaintiffs were prompted to move for defendants to be

declared in contempt of court because of their open defiance and

willful disobedience to the lawful orders of the court, which were

abetted by the acts of Atty. Egmedio Castillon who is an officer of

the court.[4]On 25 January 1991, the trial court declared Atty.

Castillon and his co-defendants guilty of indirect contempt of

court, with the penalty of one month imprisonment and fine.

[5] Subsequently, on 26 July 1994, the Court of Appeals affirmed

the decision of the trial court, with the modification that instead of

imprisonment, defendants were ordered to pay a fine of

P1,000.00 each.[6]

 

In his Answer to Complaint dated 02 March 1998, respondent

denied complainants allegations and claimed that said complaint

was a form of harassment.[7] Hearings were thereafter scheduled

but were cancelled and reset due to the unavailability of the

complainant. Finally, on 09 December 1998, a hearing for the

reception of complainants evidence was conducted.[8] While

notices were subsequently sent to respondent setting the case for

reception of his evidence, no such hearing pushed through due to

respondents failure to inform the IBP of his new office address.

Thus, respondent was deemed to have waived his right to present

evidence.[9]

 

In the Report and Recommendation (Report) dated 17 March

2004, the investigating commissioner, Atty. Rafael Antonio M.

Santos, found that complainant failed to prove that respondents

actions, with respect to his unsuccessful defense of the case were

not within the bounds of the law. Moreover, that respondent lost

his case in the trial court does not necessarily support the charge

of willingly promoting or ruing any groundless, false or unlawful

suit or giving aid, or consenting to the same, [10] he added. Thus,

according to the IBP, the only remaining issue to be resolved is

respondents liability, if any, for his contumacious acts, as found

by the trial court and the Court of Appeals.[11]

 

Recognizing that the findings of the trial court and the appellate

court with respect to respondents contumacious acts as final and

conclusive, it was found that respondent committed an act which

constitutes a breach of his sworn promise to obey the laws as well

as the legal orders of the duly constituted authorities.

Furthermore, the Report noted respondents attempts to thwart

the instant disbarment proceedings, to wit: i) attempt to mislead

the Commission on Bar Discipline by representing that the

proceedings relative to the contempt charges against him are still

pending when in fact they had already been terminated; ii)

placing too much emphasis on the alleged lack of personality of

the complainant to file the disbarment complaint; and iii) failure

to notify the Commission of his change of address.[12]

 

Finding however, that the penalty of disbarment would be

reasonable under the circumstances, the Commission

recommended instead the penalty of suspension for one month.

[13] As explained in the Report:

 A close examination of the facts of this case reveals that the basis of the act for which the court found to be contumacious is a claim of ownership over the subject property, and thus arose from an emotional attachment to the property which they had possessed prior to their dispossession as a consequence of the decision in Civil Case No. 1345. Respondents subsequent acts, however, including those which were found to be contumacious, as well as his actuations in the instant case, merit disciplinary sanctions, for which is recommended that respondent be suspended for one (1) month.[14]

 

On 30 July 2004, the IBP passed a resolution adopting the Report

and Recommendation, to wit:

 RESOLUTION NO, XVI-2004-376CBD Case No. 510Epifania Q. Bantolo vs.Atty. Egmedio B. Castillon

 RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that respondent has been found by both the Trial Court and the Court of Appeals guilty of indirect contempt for disobeying the writ of execution and for attempting to mislead the Commission into believing that the contempt charge is still pending by submitting an Order of the trial court which pertains to a second contempt charge, Atty. Egmedio B. Castillon, Sr. is hereby SUSPENDED from the practice of law for one (1) month.

  

The findings and recommendation of the IBP are well-taken.

Lawyers are particularly called upon to obey court orders and

processes, and this deference is underscored by the fact that

willful disregard thereof may subject the lawyer not only to

punishment for contempt but to disciplinary sanctions as well.

[15] Such is the situation in the instant case. We need not delve

into the factual findings of the trial court and the Court of Appeals

on the contempt case against respondents. Suffice it to say that

respondent lawyers commission of the contumacious acts have

been shown and proven, and eventually punished by the lower

courts.

 

A lawyer is first and foremost an officer of the court. Thus,

while he owes his entire devotion to the interest and causes of his

client he must ensure that he acts within the bounds of reason

and common sense, always aware that he is an instrument of

truth and justice. More importantly, as an officer of the court and

its indispensable partner in the sacred task of administering

justice, graver responsibility is imposed upon a lawyer than any

other to uphold the integrity of the courts[16] and to show respect

to its processes. Thus, any act on his part which tends visibly to

obstruct, pervert or impede and degrade the administration of

justice constitutes professional misconduct calling for the exercise

of disciplinary action against him.[17]

 

Respondents defiance of the writ of execution is a brazen

display of disrespect of the very system which he has sworn to

support. Likewise, his various attempts to delay and address

issues inconsequential to the disbarment proceedings had

necessarily caused delay, and even threatened to obstruct the

investigation being conducted by the IBP.

 

Nevertheless, the supreme penalty of disbarment is not

proper in the instant case. The rule is that disbarment is meted

out only in clear cases of misconduct that seriously affect the

standing and character of the lawyer as an officer of the court.

While the Court will not hesitate to remove an erring lawyer from

the esteemed brotherhood of lawyers when the evidence calls for

it, it will also not disbar him where a lesser penalty will suffice to

accomplish the desired end.[18] In the case of respondent, the

Court finds that a months suspension from the practice of law will

provide him with enough time to purge himself of his misconduct

and will give him the opportunity to retrace his steps back to the

virtuous path of the legal profession.

 

WHEREFORE, respondent Atty. Egmedio B. Castillon is found

GUILTY of gross misconduct and is SUSPENDED from the practice

of law for a period of one (1) month with a warning that a

repetition of the same or similar act will be dealt with more

severely. Respondents suspension is effective upon notice of this

decision. Let notice of this decision be spread in respondents

record as an attorney in this Court, and notice of the same served

on the Integrated Bar of the Philippines and on the Office of the

Court Administrator for circulation to all the courts concerned.

 

SO ORDERED.

 

 

 

 DANTE O. TINGA Associate

Justice 

 WE CONCUR:    

REYNATO S. PUNOAssociate Justice

Chairman 

    MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.Associate Justice Associate Justice     

MINITA V. CHICO-NAZARIOAssociate Justice

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 [1]Rollo, pp.1-2. [2]Gertrudes Bantolo, et al. v. Coleta Castillon, et al., Civil Case No. 1345, RTC

Antique, Branch 10. [3]Rollo, p. 1. [4]Rollo, p. 2. [5] Rollo, pp. 7-13. [6] Rollo, pp. 62-75. [7] Rollo, pp. 17-19. [8] Rollo, pp. 111-155. [9] Rollo, p. 168.

 [10] Rollo, pp. 168-169. [11] Rollo, p. 170. [12] Rollo, pp. 173-175.

 [13] Rollo, p. 175. [14] Rollo, p. 176. [15]Agpalo, The Code of Professional Responsibility (First Edition), p. 116, citing In re

Macdougall, 3 Phil. 70 (1903). 

 [16] Choa v. Judge Chiongson, 329 Phil. 270, 276 (1996). [17]Zaldivar v. Sandiganbayan, Nos. L-79690-707 7 October 1988, 166 SCRA 316, 332. [18] Garcia v. Manuel, Adm. Case No. 5811, 20 January 2003, 395 SCRA 386, 392,

citations omitted.