LEGAL ETHICS-CASES.docx

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G.R. No. L-35469 October 9, 1987

ENCARNACION BANOGON, ZOSIMA MNOZ, !"# $A%I$INA

MNOZ, petitioners,

vs.MELC&OR ZERNA, CONSE'O ZERNA $E CORNELIO, (RANCISCO ZERNA, !"#

t)e &ON. CI*RIANO %AMEN+A, 'R., '#e o t)e Cort o (/r0t I"0t!"ce o

Nero0 Or/e"t! 2Br!"c) III.

CRZ, J.:

It's unbelievable. The original decision in this case was rendered by the cadastral

court way back on February 9, 1926, sixty one years ago. !otion to a!end that

decision was "led on #arch 6, 19$%, thirty one years later . This was &ollowed by an

a!ended petition &or review o& the udg!ent on #arch 1(, 19$%, and an opposition

thereto on #arch 26, 19$%. )n )ctober 11, 19%1, or after fourteen years, a !otion

to dis!iss the petition was "led. The petition was dis!issed on *ece!ber (, 19%1,

and the !otion &or reconsideration was denied on February 1+, 19%2. 1 The

petitioners then ca!e to us on certiorari to uestion the orders o& the respondent

udge.

These dates are not typographical errors. -hat is involved here are errors o& law

and lawyers.

The respondent court dis!issed the petition &or review o& the decision rendered in

1926 on the ground that it had been "led out o& ti!e, indeed thirty one years too

late. aches, it was held, had operated against the petitioners. 3

The petitioners contend that the said udg!ent had not yet beco!e "nal and

e/ecutory because the land in dispute had not yet been registered in &avor o& the

private respondents. The said udg!ent would beco!e so only a&ter one year &ro!

the issuance o& the decree o& registration. I& any one was guilty o& laches, it was the

private respondents who had &ailed to en&orce the udg!ent by having the land

registered in their the pursuant thereto. 4

For their part, the private respondents argue that the decision o& February 9, 1926,

beca!e "nal and e/ecutory a&ter 0 days, sa!e not having been appealed by the

petitioners during that period. They slept on their rights &or thirty one years be&ore it

occurred to the! to uestion the udg!ent o& the cadastral court. In &act, their

alleged predecessorininterest, Filo!eno 3anogon, lived &or nineteen more

years a&ter the 1926 decision and did not see "t to challenge it until his death in

1



19+$. The herein petitioners the!selves waited another twelve years, or until 19$

%, to "le their petition &or review. 5

-hile arguing that they were not guilty o& laches because the 1926 decision had not

yet beco!e "nal and e/ecutory because the land subect thereo& had not yet been

registered, the petitioners rationali4e5 I& an aggrieved party is allowed the re!edyo& reopening the case within one year a&ter the issuance o& the decree, why should

the sa!e party be denied this re!edy before the decree is issued7 6

-hy not indeed7 -hy then did they not "le their petition earlier7 -hy do they now

pretend that they have all the ti!e in the world because the land has not yet been

registered and the oneyear regle!entary period has not yet e/pired7

Thinking to support their position, the petitioners cite Rivera v. Moran 7 where it was

held5

... It is conceded that no decree o& registration has been entered and

section 0( o& the and 8egistration ct provides that a petition &or

review o& such a decree on the grounds o& &raud !ust be "led within

one year a&ter entry o& the decree. iving this provision a literal

interpretation, it may rst blush seem that the petition for review

cannot be presented until the nal decree has been entered. But on

further reection, it is obvious that such could not have been the

intention of the Legislatureand that what it !eant would have been

better e/pressed by stating that such petitioners !ust be presented

be&ore the e/piration o& one year &ro! the entry o& the decree. :tatutes

!ust be given a reasonable construction and there can be no possiblereason for reuiring the complaining party to wait until the nal decree

is entered before urging his claim of fraud. -e there&ore hold that a

petition &or review under section 0(, supra, !ay be "led at any time

the rendition of the court!s decision and be&ore the e/piration o& one

year &ro! the entry o& the "nal decree o& registration.

;<!phasissupplied=.

reading thereo& will show that it is against their contentions and that under this

doctrine they should not have delayed in asserting their clai! o& &raud. Their delay

was not only &or thirty one days but &or thirty one years.aches bars their petition

now. Their position is clearly contrary to law and logic and to even ordinary co!!on

sense.

This >ourt has repeatedly re!inded litigants and lawyers alike5

itigation !ust end and ter!inate so!eti!e and so!ewhere, and it is

assent essential to an e?ective and e@cient ad!inistration o& ustice

2



that, once a udg!ent has beco!e "nal, the winning party be not,

through a !ere subter&uge, deprived o& the &ruits o& the verdict. >ourts

!ust there&ore guard against any sche!e calculated to bring about

that result. >onstituted as they are to put an end to controversies,

courts should &rown upon any atte!pt to prolong the!. 8

There should be a greater awareness on the part o& litigants that the

ti!e o& the udiciary, !uch !ore so o& this >ourt, is too valuable to be

wasted or &rittered away by e?orts, &ar &ro! co!!endable, to evade

the operation o& a decision "nal and e/ecutory, especially so, where, as

shown in this case, the clear and !ani&est absence o& any right calling

&or vindication, is uite obvious and indisputable. 9

This appeal !oreover, should &ail, predicated as it is on an

insubstantial obection bere&t o& any persuasive &orce. *e&endants had

to display ingenuity to conure a technicality. Fro! lonso v. Ailla!or, a

191 decision, we have le&t no doubt as to our disapproval o& such a

practice. The ai! o& a lawsuit is to render ustice to the parties

according to law. Brocedural rules are precisely designed to acco!plish

such a worthy obective. Cecessarily, there&ore, any atte!pt to pervert

the ends &or which they are intended deserves conde!nation. -e have

done so be&ore. -e do so again. 1

8egarding the argu!ent that the private respondents took &ourteen years to !ove

&or the dis!issal o& the petition &or review, it su@ces to point out that an opposition

thereto had been !ade as early as #arch 26, 19$%, or nine days a&ter the "ling o&

the petition. 11 #oreover, it was &or the petitioners to !ove &or the hearing o& thepetition instead o& waiting &or the private respondents to ask &or its dis!issal. &ter

all, they were the parties asking &or relie&, and it was the private respondents who

were in possession o& the land in dispute.

)ne reason why there is a degree o& public distrust &or lawyers is the way so!e o&

the! !isinterpret the law to the point o& distortion in a cunning e?ort to achieve

their purposes. 3y doing so, they &rustrate the ends o& ustice and at the sa!e ti!e

lessen popular &aith in the legal pro&ession as the sworn upholders o& the law. -hile

this is not to say that every wrong interpretation o& the law is to be conde!ned, as

indeed !ost o& the! are only honest errors, this >ourt !ust e/press its disapproval

o& the adroit and intentional !isreading designed precisely to circu!vent or violate

it.

s o@cers o& the court, lawyers have a responsibility to assist in the proper

ad!inistration o& ustice. They do not discharge this duty by "ling pointless petitions

that only add to the workload o& the udiciary, especially this >ourt, which is

burdened enough as it is. udicious study o& the &acts and the law should advise

0



the! when a case, such as this, should not be per!itted to be "led to !erely clutter

the already congested udicial dockets. They do not advance the cause o& law or

their clients by co!!encing litigations that &or sheer lack o& !erit do not deserve

the attention o& the courts.

This petition is *I:#I::<*, with costs against the petitioners. This decision isi!!ediately e/ecutory. It is so ordered.

"eehan#ee, $.%., &arvasa and 'aras, %%., concur.

(ancayco, %., is on leave.

+



G.R. No. L-3815 '"e 8, 1974

A$ELINO &. LE$ESMA, petitioner,

vs.

&ON. RA(AEL C. CLIMACO, *re0/#/" '#e o t)e Cort o (/r0t I"0t!"ce o

Nero0 Occ/#e"t!, Br!"c) I, S/! C/t, respondent.

)delino *. Ledesma in his own behalf.

*on. Rafael $. $limaco in his own behalf.

(ERNAN$O, J.: p

-hat is assailed in this certiorari proceeding is an order o& respondent Dudge

denying a !otion "led by petitioner to be allowed to withdraw as counsel de

ocio. 1 )ne o& the grounds &or such a !otion was his allegation that with his

appoint!ent as <lection 8egistrar by the >o!!ission on <lections, he was not in a

position to devote &ull ti!e to the de&ense o& the two accused. The denial by

respondent Dudge o& such a plea, notwithstanding the con&or!ity o& the de&endants,

was due its principal e?ect Ebeing to delay this case. It was likewise noted thatthe prosecution had already rested and that petitioner was previously counsel de

parte, his designation in the &or!er category being precisely to protect hi! in his

new position without preudicing the accused. It cannot be plausibly asserted that

such &ailure to allow withdrawal o& de ocio counsel could ordinarily be

characteri4ed as a grave abuse o& discretion correctible by certiorari. There is,

however, the overriding concern &or the right to counsel o& the accused that !ust be

taken seriously into consideration. In appropriate cases, it should tilt the balance.

This is not one o& the!. -hat is easily discernible was the obvious reluctance o&

petitioner to co!ply with the responsibilities incu!bent on the counsel de ocio.

Then, too, even on the assu!ption that he continues in his position, his volu!e o& work is likely to be very !uch less at present. There is not now the slightest prete/t

&or hi! to shirk an obligation a !e!ber o& the bar, who e/pects to re!ain in good

standing, should &ul"ll. The petition is clearly without !erit.

ccording to the undisputed &acts, petitioner, on )ctober 10, 196+, was appointed

<lection 8egistrar &or the #unicipality o& >adi4, Brovince o& Cegros )ccidental. Then

and there, he co!!enced to discharge its duties. s he was counsel de parte &or

$



one o& the accused in a case pending in the sala o& respondent Dudge, he "led a

!otion to withdraw as such. Cot only did respondent Dudge deny such !otion, but

he also appointed hi! counselde ocio &or the two de&endants. :ubseuently, on

Cove!ber 0, 196+, petitioner "led an urgent !otion to be allowed to withdraw as

counsel de ocio, pre!ised on the policy o& the >o!!ission on <lections to reuire

&ull ti!e service as well as on the volu!e or pressure o& work o& petitioner, whichcould prevent hi! &ro! handling adeuately the de&ense. 8espondent Dudge, in the

challenged order o& Cove!ber 6, 196+, denied said !otion. !otion &or

reconsideration having proved &utile, he instituted this certiorari proceeding. 3

s noted at the outset, the petition !ust &ail.

1. The assailed order o& Cove!ber 6, 196+ denying the urgent !otion o& petitioner

to withdraw as counsel de ocio speaks &or itsel&. It began with a re!inder that a

cri!e was allegedly co!!itted on February 1%, 1962, with the proceedings having

started in the !unicipal court o& >adi4 on Duly 11, 1962. Then respondent Dudge

spoke o& his order o& )ctober 16, 196+ which reads thus5 In view o& the obection o&

the prosecution to the !otion &or postpone!ent o& )ctober 1$, 196+ ;alleging that

counsel &or the accused cannot continue appearing in this case without the e/press

authority o& the >o!!ission on <lections=G and since according to the prosecution

there are two witnesses who are ready to take the stand, a&ter which the

govern!ent would rest, the !otion &or postpone!ent is denied. -hen counsel &or

the accused assu!ed o@ce as <lection 8egistrar on )ctober 10, 196+, he knew

since )ctober 2, 196+ that the trial would be resu!ed today. Cevertheless, in order

not to preudice the civil service status o& counsel &or the accused, he is hereby

designated counsel de ocio &or the accused. The de&ense obtained postpone!ents

on #ay 1%, 1960, Dune 10, 1960, Dune 1+, 1960, )ctober 2(, 1960, Cove!ber 2%,1960, February 11, 196+, #arch 9, 196+, Dune (, 196+ Duly 26, 196+, and :epte!ber

%, 196+. 4 8e&erence was then !ade to another order o& February 11, 196+5 Hpon

petition o& tty. delino . edes!a, alleging indisposition, the continuation o& the

trial o& this case is hereby trans&erred to #arch 9, 196+ at (50 in the !orning. The

de&ense is re!inded that at its instance, this case has been postponed at least eight

;(= ti!es, and that the govern!ent witnesses have to co!e all the way &ro!

#anapala. 5 &ter which, it was noted in such order that there was no

inco!patibility between the duty o& petitioner to the accused and to the court and

the per&or!ance o& his task as an election registrar o& the >o!!ission on <lections

and that the ends o& ustice would be served by allowing and reuiring #r. edes!ato continue as counsel de ocio, since the prosecution has already rested its case. 6

2. -hat is readily apparent there&ore, is that petitioner was less than duly !ind&ul o&

his obligation as counsel de ocio. e ought to have known that !e!bership in the

bar is a privilege burdened with conditions. It could be that &or so!e lawyers,

especially the neophytes in the pro&ession, being appointed counsel de ocio is an

irkso!e chore. For those holding such belie&, it !ay co!e as a surprise that counsel

6



o& repute and o& e!inence welco!e such an opportunity. It !akes even !ore

!ani&est that law is indeed a pro&ession dedicated to the ideal o& service and not a

!ere trade. It is understandable then why a high degree o& "delity to duty is

reuired o& one so designated. recent state!ent o& the doctrine is &ound in 'eople

v. +aban5 7 There is need anew in this disciplinary proceeding to lay stress on the

&unda!ental postulate that !e!bership in the bar carries with it a responsibility tolive up to its e/acting standard. The law is a pro&ession, not a trade or a cra&t. Those

enrolled in its ranks are called upon to aid in the per&or!ance o& one o& the basic

purposes o& the :tate, the ad!inistration o& ustice. To avoid any &rustration thereo&,

especially in the case o& an indigent de&endant, a lawyer !ay be reuired to act as

counsel de o"cio. The &act that his services are rendered without re!uneration

should not occasion a di!inution in his 4eal. 8ather the contrary. This is not, o&

course, to ignore that other pressing !atters do co!pete &or his attention. &ter all,

he has his practice to attend to. That circu!stance possesses a high degree o&

relevance since a lawyer has to liveG certainly he cannot a?ord either to neglect his

paying cases. Conetheless, what is incu!bent upon hi! as counsel de o"cio !ust

be &ul"lled. 8

:o it has been &ro! the 19$ decision o& n re Robles Lahesa, 9 where respondent

was de ocio counsel, the opinion penned by Dustice >arson !aking clear5 This

>ourt should e/act &ro! its o@cers and subordinates the !ost scrupulous

per&or!ance o& their o@cial duties, especially when negligence in the per&or!ance

o& those duties necessarily results in delays in the prosecution o& cri!inal

cases .... 1 Dustice :anche4 in 'eople v. -stebia 11 reiterated such a view in these

words5 It is true that he is a courtappointed counsel. 3ut we do say that as such

counsel de ocio, he has as high a duty to the accused as one e!ployed and paid

by de&endant hi!sel&. 3ecause, as in the case o& the latter, he !ust e/ercise hisbest e?orts and pro&essional ability in behal& o& the person assigned to his care. e

is to render e?ective assistance. The accusedde&endant e/pects o& hi! due

diligence, not !ere per&unctory representation. For, indeed a lawyer who is a

vanguard in the bastion o& ustice is e/pected to have a bigger dose o& social

conscience and a little less o& sel&interest. 1

The weakness o& the petition is thus uite evident.

0. I& respondent Dudge were reuired to answer the petition, it was only due to the

apprehension that considering the &ra!e o& !ind o& a counsel loath and reluctant to&ul"ll his obligation, the wel&are o& the accused could be preudiced. is right to

counsel could in e?ect be rendered nugatory. Its i!portance was right&ully stressed

by >hie& Dustice #oran in 'eople v. *olgado in these words5 In cri!inal cases there

can be no &air hearing unless the accused be given an opportunity to be heard by

counsel. The right to be heard would be o& little avail i& it does not include the right

to be heard by counsel. <ven the !ost intelligent or educated !an !ay have no

skill in the science o& law, particularly in the rules o& procedure, andG without

%



counsel, he !ay be convicted not because he is guilty but because he does not

know how to establish his innocence. nd this can happen !ore easily to persons

who are ignorant or uneducated. It is &or this reason that the right to be assisted by

counsel is dee!ed so i!portant that it has beco!e a constitutional right and it is so

i!ple!ented that under rules o& procedure it is not enough &or the >ourt to apprise

an accused o& his right to have an attorney, it is not enough to ask hi! whether hedesires the aid o& an attorney, but it is essential that the court should assign one de

ocio &or hi! i& he so desires and he is poor or grant hi! a reasonable ti!e to

procure an attorney o& his

own. 13 :o it was under the previous )rganic cts. 14 The present >onstitution is

even !ore e!phatic. For, in addition to reiterating that the accused shall enoy the

right to be heard by hi!sel& and counsel, 15 there is this new provision5 ny person

under investigation &or the co!!ission o& an o?ense shall have the right to re!ain

silent and to counsel, and to be in&or!ed o& such right. Co &orce, violence, threat,

inti!idation, or any other !eans which vitiates the &ree will shall be used against

hi!. ny con&ession obtained in violation o& this section shall be inad!issible in

evidence. 16

Thus is !ade !ani&est the indispensable role o& a !e!ber o& the 3ar in the de&ense

o& an accused. :uch a consideration could have su@ced &or petitioner not being

allowed to withdraw as counsel de ocio. For he did betray by his !oves his lack o&

enthusias! &or the task entrusted to hi!, to put !atters !ildly. e did point though

to his responsibility as an election registrar. ssu!ing his good &aith, no such

e/cuse could be availed now. There is not likely at present, and in the i!!ediate

&uture, an e/orbitant de!and on his ti!e. It !ay likewise be assu!ed, considering

what has been set &orth above, that petitioner would e/ert hi!sel& su@ciently to

per&or! his task as de&ense counsel with co!petence, i& not with 4eal, i& only toerase doubts as to his "tness to re!ain a !e!ber o& the pro&ession in good

standing. The ad!onition is ever ti!ely &or those enrolled in the ranks o& legal

practitioners that there are ti!es, and this is one o& the!, when duty to court and to

client takes precedence over the pro!ptings o& sel&interest.

-<8<F)8<, the petition &or certiorari is dis!issed. >osts against petitioner.

aldivar /$hairman0, )ntonio, 1ernande2 and )uino, %%., concur.

Barredo, %., too# no part.

(



A.M. S$C-97--*. (ebr!r 4, 1997

SO*&IA ALAI, complainant, vs. AS&AR: M. ALA:A, Cer; o Cort %I,S)!r/<! $/0tr/ct Cort, M!r!=/ C/t, respondent .

$ E C I S I O N

NAR%ASA, C.J.>

:ophia lawi was ;and presu!ably still is= a sales representative ;or

coordinator= o& <. 3. Aillarosa J Bartners >o., td. o& *avao >ity, a real estate and

housing co!pany. shari #. lauya is the incu!bent e/ecutive clerk o& court o& the

+th Dudicial :hari'a *istrict in #arawi >ity. They were class!ates, and used to be

&riends.

It appears that through lawi's agency, a contract was e/ecuted &or the

purchase on install!ents by lauya o& one o& the housing units belonging to the

above !entioned "r! ;herea&ter, si!ply Aillarosa J >o.=G and in connection

therewith, a housing loan was also granted to lauya by the Cational o!e

#ortgage Finance >orporation ;C#F>=.

Cot long a&terwards, or !ore precisely on *ece!ber 1$, 199$, lauya

addressed a letter to the Bresident o& Aillarosa J >o. advising o& the ter!ination o&

his contract with the co!pany. e wrote5

KK I a! &or!ally and o@cially withdrawing &ro! and noti&ying you o& !y intent to

ter!inate the >ontractLgree!ent entered into between !e and your co!pany, as

represented by your :ales gentL>oordinator, :)BI -I, o& your co!pany's

branch o@ce here in >agayan de )ro >ity, on the grounds that !y consent was

vitiated by gross !isrepresentation, deceit, &raud, dishonesty and abuse o&

con"dence by the a&oresaid sales agent which !ade said contract void ab initio.

:aid sales agent acting in bad &aith perpetrated such illegal and unauthori4ed acts

which !ade said contract an )nerous >ontract preudicial to !y rights and

interests.

e then proceeded to e/pound in considerable detail and uite acerbic language on

the grounds which could evidence the bad &aith, deceit, &raud, !isrepresentation,

dishonesty and abuse o& con"dence by the unscrupulous sales agent KK G and

closed with the plea that Aillarosa J >o. agree &or the !utual rescission o& our

contract, even as I in&or! you that I categorically state on record that I a!

ter!inating the contract KK. I hope I do not have to resort to any legal action be&ore

9



said onerous and !anipulated contract against !y interest be annulled. I was

actually &ooled by your sales agent, hence the need to annul the controversial

contract.

lauya sent a copy o& the letter to the AiceBresident o& Aillarosa J >o. at :an

Bedro, usa, >agayan de )ro >ity. The envelope containing it, and which actuallywent through the post, bore no sta!ps. Instead at the right hand corner above the

description o& the addressee, the words, Free Bostage B* 26, had been typed.

)n the sa!e date, *ece!ber 1$, 199$, lauya also wrote to #r. Fer!in T.

r4aga, AiceBresident, >redit J >ollection roup o& the Cational o!e #ortgage

Finance >orporation ;C#F>= at :alcedo Aillage, #akati >ity, repudiating as

&raudulent and void his contract with Aillarosa J >o.G and asking &or cancellation o&

his housing loan in connection therewith, which was payable &ro! salary deductions

at the rate o& B+,00(. a !onth. !ong other things, he said5

KK ;T=hrough this written notice, I a! ter!inating, as I hereby annul, cancel,

rescind and voided, the '!anipulated contract' entered into between !e and the

<.3. Aillarosa J Bartner >o., td., as represented by its sales agentLcoordinator,

:)BI -I, who !aliciously and &raudulently !anipulated said contract and

unlaw&ully secured and pursued the housing loan without !y authority and against

!y will. Thus, the contract itsel& is dee!ed to be void ab initio in view o& the

attending circu!stances, that !y consent was vitiated by !isrepresentation, &raud,

deceit, dishonesty, and abuse o& con"denceG and that there was no !eeting o& the

!inds between !e and the swindling sales agent who concealed the real &acts &ro!

!e.

nd, as in his letter to Aillarosa J >o., he narrated in so!e detail what he took to be

the ano!alous actuations o& :ophia lawi.

lauya wrote three other letters to #r. r4aga o& the C#F>, dated February 21,

1996, pril 1$, 1996, and #ay 0, 1996, in all o& which, &or the sa!e reasons already

cited, he insisted on the cancellation o& his housing loan and discontinuance o&

deductions &ro! his salary on account thereo&. a e also wrote on Danuary 1(, 1996

to #s. >ora4on #. )rdoe4, ead o& the Fiscal #anage!ent J 3udget )@ce, and to

the >hie&, Finance *ivision, both o& this >ourt, to stop deductions &ro! his salary in

relation to the loan in uestion, again asserting the ano!alous !anner by which he

was allegedly duped into entering into the contracts by the sche!ing sales

agent.b

The upshot was that in #ay, 1996, the C#F> wrote to the :upre!e >ourt

reuesting it to stop deductions on lauya's HB loan e?ective #ay 1996, and

began negotiating with Aillarosa J >o. &or the buyback o& KK ;lauya's= !ortgage,

and KK the re&und o& KK ;his= pay!ents.c

1

http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/am_sdc_97_2_p.htm#_edn1








)n learning o& lauya's letter to Aillarosa J >o. o& *ece!ber 1$, 199$, :ophia

lawi "led with this >ourt a veri"ed co!plaint dated Danuary 2$, 1996 to which

she appended a copy o& the letter, and o& the above !entioned envelope bearing

the typewritten words, Free Bostage B* 26.E1 In that co!plaint, she accused

lauya o&5

1. I!putation o& !alicious and libelous charges with no solid grounds through

!ani&est ignorance and evident bad &aithG

2. >ausing undue inury to, and ble!ishing her honor and established reputationG

0. Hnauthori4ed enoy!ent o& the privilege o& &ree postage KKG and

+. Hsurpation o& the title o& attorney, which only regular !e!bers o& the Bhilippine

3ar !ay properly use.

:he deplored lauya's re&erences to her as unscrupulous, swindler, &orger,

!anipulator, etc. without even a bit o& evidence to cloth ;sic= his allegations with

the essence o& truth, denouncing his i!putations as irresponsible, all concoctions,

lies, baseless and coupled with !ani&est ignorance and evident bad &aith, and

asserting that all her dealings with lauya had been regular and co!pletely

transparent. :he closed with the plea that lauya be dis!issed &ro! the service, or

be appropriately disciplined ;sic= KK

The >ourt resolved to order lauya to co!!ent on the co!plaint. >on&or!ably

with established usage that notices o& resolutions e!anate &ro! the corresponding

)@ce o& the >lerk o& >ourt, the notice o& resolution in this case was signed by tty.l&redo B. #arasigan, ssistant *ivision >lerk o& >ourt.E2

lauya "rst sub!itted a Breli!inary >o!!entE0 in which he uestioned the

authority o& tty. #arasigan to reuire an e/planation o& hi!, this power pertaining,

according to hi!, not to a !ere sst. *iv. >lerk o& >ourt investigating an </ecutive

>lerk o& >ourt. but only to the *istrict Dudge, the >ourt d!inistrator or the >hie&

Dustice, and voiced the suspicion that the 8esolution was the result o& a strong link

between #s. lawi and tty. #arasigan's o@ce. e also averred that the co!plaint

had no &actual basisG lawi was envious o& hi! &or being not only the </ecutive

>lerk o& court and e/o@cio Brovincial :heri? and *istrict 8egistrar, but also a

scion o& a 8oyal Fa!ily KK.E+

In a subseuent letter to tty. #arasigan, but this ti!e in !uch less aggressive,

even obseuious tones,E$ lauya reuested the &or!er to give hi! a copy o& the

co!plaint in order that he !ight co!!ent thereon.E6 e stated that his acts as

clerk o& court were done in good &aith and within the con"nes o& the lawG and that

:ophia lawi as sales agent o& Aillarosa J >o. had, by &alsi&ying his signature,

11















&raudulently bound hi! to a housing loan contract entailing !onthly deductions

o& B+,000.1 &ro! his salary.

nd in his co!!ent therea&ter sub!itted under date o& Dune $, 1996, lauya

contended that it was he who had su?ered undue inury, !ental anguish, sleepless

nights, wounded &eelings and untold "nancial su?ering, considering that in si/!onths, a total o& B26,2(.6 had been deducted &ro! his salary.E% e declared that

there was no basis &or the co!plaintG in co!!unicating with Aillarosa J >o. he had

!erely acted in de&ense o& his rights. e denied any abuse o& the &ranking privilege,

saying that he gave B2. plus transportation &are to a subordinate who! he

entrusted with the !ailing o& certain lettersG that the words5 Free Bostage B* 26,

were typewritten on the envelope by so!e other person, an aver!ent corroborated

by the a@davit o& bsa!en >. *o!ocao, >lerk IA ;subscribed and sworn to be&ore

respondent hi!sel&, and attached to the co!!ent as nne/ D=G E( and as &ar as he

knew, his subordinate !ailed the letters with the use o& the !oney he had given &or

postage, and i& those letters were indeed !i/ed with the o@cial !ail o& the court,

this had occurred inadvertently and because o& an honest !istake.E9

lauya usti"ed his use o& the title, attorney, by the assertion that it is

le/ically synony!ous with >ounsellorsatlaw, a title to which :hari'a lawyers

have a right&ul clai!, adding that he pre&ers the title o& attorney because

counsellor is o&ten !istaken &or councilor, konsehal or the #aranao ter!

consial, connoting a local legislator beholden to the !ayor. -ithal, he does not

consider hi!sel& a lawyer.

e pleads &or the >ourt's co!passion, alleging that what he did is e/pected o&

any !an unduly preudiced and inured.E1 e clai!s he was !anipulated intoreposing his trust in lawi, a class!ate and &riend.E11 e was induced to sign a blank

contract on lawi's assurance that she would show the co!pleted docu!ent to hi!

later &or correction, but she had since avoided hi!G despite nu!erous letters and

&ollowups he still does not know where the property subect o& his supposed

agree!ent with lawi's principal, Aillarosa J >o. is situatedGE12e says lawi

so!ehow got his :I: policy &ro! his wi&e, and although she pro!ised to return it

the ne/t day, she did not do so until a&ter several !onths. e also clai!s that in

connection with his contract with Aillarosa J >o., lawi &orged his signature on such

pertinent docu!ents as those regarding the down pay!ent, clearance, layout,

receipt o& the key o& the house, salary deduction, none o& which he ever saw.

E10

verring in "ne that his acts in uestion were done without !alice, lauya prays

&or the dis!issal o& the co!plaint &or lack o& !erit, it consisting o& &allacious,

!alicious and baseless allegations, and co!plainant lawi having co!e to the

>ourt with unclean hands, her co!plicity in the &raudulent housing loan being

apparent and de!onstrable.

12

















It !ay be !entioned that in contrast to his two ;2= letters to ssistant >lerk o&

>ourt #arasigan ;dated pril 19, 1996 and pril 22, 1996=, and his two ;2= earlier

letters both dated *ece!ber 1$, 1996 all o& which he signed as tty. shary #.

lauya in his >o!!ent o& Dune $, 1996, he does not use the title but re&ers to

hi!sel& as *TH :8M #. HM.

The >ourt re&erred the case to the )@ce o& the >ourt d!inistrator &or

evaluation, report and reco!!endation.E1+

The "rst accusation against lauya is that in his a&oresaid letters, he !ade

!alicious and libelous charges ;against lawi= with no solid grounds through

!ani&est ignorance and evident bad &aith, resulting in undue inury to ;her= and

ble!ishing her honor and established reputation. In those letters, lauya had

written inter alia that5

1= lawi obtained his consent to the contracts in uestion by gross

!isrepresentation, deceit, &raud, dishonesty and abuse o& con"denceG

2= lawi acted in bad &aith and perpetrated KK illegal and unauthori4ed acts KK KK

preudicial to KK ;his= rights and interestsG

0= lawi was an unscrupulous ;and swindling= sales agent who had &ooled hi!

by deceit, &raud, !isrepresentation, dishonesty and abuse o& con"denceG and

+= lawi had !aliciously and &raudulently !anipulated the contract with Aillarosa J

>o., and unlaw&ully secured and pursued the housing loan without KK ;his= authority

and against KK ;his= will, and concealed the real &acts KK.

lauya's de&ense essentially is that in !aking these state!ents, he was !erely

acting in de&ense o& his rights, and doing only what is e/pected o& any !an unduly

preudiced and inured, who had su?ered !ental anguish, sleepless nights,

wounded &eelings and untold "nancial su?ering, considering that in si/ !onths, a

total o& B26,2(.6 had been deducted &ro! his salary.E1$

The >ode o& >onduct and <thical :tandards &or Bublic )@cials and <!ployees

;8 6%10= inter alia enunciates the :tate policy o& pro!oting a high standard o&

ethics and ut!ost responsibility in the public service.E16 :ection + o& the >ode

co!!ands that ;p=ublic o@cials and e!ployees KK at all ti!es respect the rights o&

others, and KK re&rain &ro! doing acts contrary to law, good !orals, good custo!s,

public policy, public order, public sa&ety and public interest. E1% #ore than once has

this >ourt e!phasi4ed that the conduct and behavior o& every o@cial and

e!ployee o& an agency involved in the ad!inistration o& ustice, &ro! the presiding

udge to the !ost unior clerk, should be circu!scribed with the heavy burden o&

responsibility. Their conduct !ust at all ti!es be characteri4ed by, a!ong others,

10











strict propriety and decoru! so as to earn and keep the respect o& the public &or the

udiciary.E1(

Cow, it does not appear to the >ourt consistent with good !orals, good custo!s

or public policy, or respect &or the rights o& others, to couch denunciations o& acts

believed however sincerely to be deceit&ul, &raudulent or !alicious, ine/cessively inte!perate. insulting or virulent language. lauya is evidently

convinced that he has a right o& action against :ophia lawi. The law reuires that

he e/ercise that right with propriety, without !alice or vindictiveness, or undue

har! to anyoneG in a !anner consistent with good !orals, good custo!s, public

policy, public order, supraG or otherwise stated, that he act with ustice, give

everyone his due, and observe honesty and good &aith. E19 8ighteous indignation, or

vindication o& right cannot usti&y resort to vituperative language, or downright

na!ecalling. s a !e!ber o& the :hari'a 3ar and an o@cer o& a >ourt, lawi is

subect to a standard o& conduct !ore stringent than &or !ost other govern!ent

workers. s a !an o& the law, he !ay not use language which is abusive, o?ensive,

scandalous, !enacing, or otherwise i!proper.E2 s a udicial e!ployee, it is

e/pected that he accord respect &or the person and the rights o& others at all ti!es,

and that his every act and word should be characteri4ed by prudence, restraint,

courtesy, dignity. is radical deviation &ro! these salutary nor!s !ight perhaps be

!itigated, but cannot be e/cused, by his strongly held conviction that he had been

grievously wronged.

s regards lauya's use o& the title o& ttorney, this >ourt has already had

occasion to declare that persons who pass the :hari'a 3ar are not &ullNedged

!e!bers o& the Bhilippine 3ar, hence !ay only practice law be&ore :hari'a courts.

E21 -hile one who has been ad!itted to the :hari'a 3ar, and one who has beenad!itted to the Bhilippine 3ar, !ay both be considered counsellors, in the sense

that they give counsel or advice in a pro&essional capacity, only the latter is an

attorney. The title o& attorney is reserved to those who, having obtained the

necessary degree in the study o& law and success&ully taken the 3ar </a!inations,

have been ad!itted to the Integrated 3ar o& the Bhilippines and re!ain !e!bers

thereo& in good standingG and it is they only who are authori4ed to practice law in

this urisdiction.

lauya says he does not wish to use the title, counsellor or counselloratlaw,

because in his region, there are peorative connotations to the ter!, or it iscon&usingly si!ilar to that given to local legislators. The ratiocination, valid or not, is

o& no !o!ent. is disinclination to use the title o& counsellor does not warrant his

use o& the title o& attorney.

Finally, respecting lauya's alleged unauthori4ed use o& the &ranking privilege,

the record contains no evidence adeuately establishing the accusation.

1+











&ERE(ORE, respondent shari #. lauya is hereby 8<B8I#C*<* &or the use

o& e/cessively inte!perate, insulting or virulent language, i.e., language

unbeco!ing a udicial o@cer, and &or usurping the title o& attorneyG and he is

warned that any si!ilar or other i!propriety or !isconduct in the &uture will be

dealt with !ore severely.

SO OR$ERE$.

+avide, %r., Melo, 1rancisco, and 'anganiban, %%., concur.

A.C. No. 494. A0t 1, 4

ANA A. C&A !"# MARCELINA &SIA, complainants, vs. A++:. SIMEON M.

MESINA, 'R., respondent.

$ E C I S I O N

PER CURIAM>

3y a veri"ed co!plaintE1 received by the )@ce o& the 3ar >on"dant on #ay $,

199(,E2 na lvaran >hua and #arcelina sia ad!inistratively charged tty. :i!eon

#. #esina, Dr., &or breach o& pro&essional ethics, gross pro&essional !isconduct, and

culpable !alpractice.

s related by co!plainants, the &ollowing &acts gave rise to the "ling o& the

co!plaint.

8espondent was, &or years, na lvaran >hua and her now deceased husband

>hua Map ns legal counsel and adviser upon who! they reposed trust and

con"dence. They were in &act lessees o& a building situated at 3urgos :treet,

>abanatuan >ity ;3urgos property= owned by respondents &a!ily, and another

property containing an area o& ($+ s. !., situated at #elencio :treet, >abanatuan

>ity ;#elencio property=, also owned by respondents &a!ily whereon they ;spouses

1$

http://sc.judiciary.gov.ph/jurisprudence/2004/aug2004/ac_4904.htm#_ftn1






>hua= constructed their house. These two properties were !ortgaged by the

registered owner, respondents !other Felicisi!a #elencio vda. de #esina ;#rs.

#esina=, in &avor o& the Blanters *evelop!ent 3ank to secure a loan she obtained.

s #rs. #esina &ailed to !eet her obligation to the bank, respondent convinced

co!plainant na >hua and her husband to help #rs. #esina by way o& settling herobligation in consideration &or which the #elencio property would be sold to the!

at B($.Ls. !.

cco!!odating respondents reuest, the spouses >hua and their business

partner, herein coco!plainant #arcelina sia, settled #rs. #esinas bank obligation

in the a!ount o&B9(0,12$.+.

*eed o& bsolute :ale dated Danuary 19, 19($E0 conveying the #elencio

property &or B($,+. was therea&ter e/ecuted by #rs. #esina, whose na!e

appears therein as Felicisi!a #. #elencio, in &avor o& co!plainants.

s co!plainants were later apprised o& the a!ount o& capital gains ta/ they

were to pay, they consulted respondent about it. 8espondent thus suggested to

the! that another *eed o& bsolute :ale should be e/ecuted, antedated to 19%9

be&ore the e?ectivity o& the law !andating the pay!ent o& capital gains ta/. s

suggested by respondent, another *eed o& bsolute :ale antedated February 9,

19%9E+ was e/ecuted by #rs. #esina, whose na!e again appears therein as

Felicisi!a #. #elencio, in &avor o& co!plainants wherein the purchase price was also

indicated to be B($,+..

&ter liuidating the advances !ade by the >hua spouses in the rede!ption o& the #<:IC properties, #rs. #esina was &ound to have an e/isting balance due the

spouses in the a!ount o& B+,., on account o& which they advised

respondent about it. 8espondent, by @davit o& February 1(, 19(6, acknowledged

such obligation to be his and undertook to settle it within two years.

>o!plainants were subseuently issued on Danuary 21, 19(6 a title over the

#elencio property.

Cot long a&ter the e/ecution o& the February 9, 19%9 *eed o& bsolute :ale or in

February 19(6, one Duanito Tecson ;Tecson= "led an @davit E$ dated February 2,

19(6 be&ore the >abanatuan >ity Brosecutors )@ce charging respondents !other,

the spouses >hua, #arcelina sia and the two witnesses to the said *eed o&

bsolute :ale, &or Falsi"cation o& Bublic *ocu!ent and violation o& the Internal

8evenue >ode. In his co!plaint a@davit, Tecson alleged that he was also a lessee o&

the #elencio property and was, along with the >hua spouses, supposed to purchase

it but that contrary to their agree!ent, the property was sold only to co!plainant

and her coco!plainant, to his e/clusion. Tecson went on to relate that the February

16









9, 19%9 *eed o& bsolute :ale did not reNect the true value o& the #elencio property

and was antedated to evade pay!ent o& capital gains ta/.

Tecson sub!itted docu!ents showing that indeed the Duly 9, 19%9 *eed o&

bsolute :ale was antedated.

8espondent thereupon hatched a plan to dodge the &alsi"cation charge against

#rs. #esina et al. e proposed to co!plainants that they would si!ulate a deed o&

sale o& the #elencio property wherein co!plainants would resell it to #rs. #esina.

eeding the proposal o& respondent, co!plainants e/ecuted a *eed o& bsolute

:ale dated pril 1, 19(6E6 conveying to Felicisi!a #. #elencio the #elencio property

&or B($,+..

new title was accordingly issued on pril +, 19(6 in the na!e o& Felicisi!a #.

#elencio, the owners copy o& which was entrusted to co!plainants.

Tecson subseuently "led be&ore the >abanatuan >ity Brosecutors )@ce an

@davit o& *esistance dated :epte!ber $, 19(6E% alleging that his "ling o& the

cri!inal co!plaint arose out o& !ere !isunderstanding and di?erence with herein

co!plainants and their corespondents and he had no su@cient evidence against

the!.

:o!e years later or on #ay 2, 199, respondent approached co!plainants and

told the! that he would borrow the owners copy o& #rs. #esinas title with the

undertaking that he would, in &our !onths, let #rs. #esina e/ecute a deed o& sale

over the #elencio property in co!plainants &avor. In &act, respondent gaveco!plainants a written undertakingE( dated #ay 2, 199 reading5

8eceived the owners duplicate copy o& T>T Co. +0(0 issued by the 8egister o&

*eeds, >abanatuan >ity registered in the na!e o& Felicisi!a #esina, widow,

consisting o& about ($+ suare !eters !ore or less located at calle #elencio,

>abanatuan >ity &ro! #rs. na >hua and #arcelina sia.

I pro!ise to and undertake to have the *eed o& :ale o& the above!entioned proper

ty in &avor o& na

>hua and #arcelina sia to be signed by #rs. Felicisi!a #esina, within &our ;+= !on

ths &ro! datehereo& so that the above!entioned property and title !aybe

trans&erred in the na!e o& na >hua and #acelina sia. ;Hnderscoring supplied=

In the !eanti!e, #rs. #esina died in the early part o& 1991.

1%









*espite respondents repeated pro!ises to e?ect the trans&er o& title in

co!plainants na!e, he &ailed to do so. >o!plainants were later in&or!ed that the

#elencio property was being o?ered &or sale to the public.

The spouses >hua and co!plainant #arcelina sia thus "led on ugust 2+,

1992 a >o!plaintE9

against respondent and his two siblings be&ore the 8egional Trial>ourt ;8T>= o& Cueva <cia in >abanatuan >ity, &or *eclaration o& Cullity o& :ale and

8econveyance o& 8eal Broperty.

s o& the ti!e o& the "ling o& the present ad!inistrative co!plaint in 199(, the

civil case against the #esina siblings was still pending.

This >ourt, by 8esolution o& Duly 10, 199(,E1 directed respondent to "le

>o!!ent on the co!plaint within ten days.

3y 8esolution o& *ece!ber 2, 199(, E11 this >ourt, noting that the copy o& the

8esolution o& Duly 10, 199( reuiring respondent to co!!ent on the co!plaint sent

to hi! at his o@ce address at :. #. #esina aw )@ce, 0 Dupiter :t., Baseo de

8o/as, 3elir :ubd., #akati >ity was returned unserved with the notation #oved,

considered the 8esolution o& Duly 10, 199( served on respondent by substituted

service pursuant to 8ule 10, :ection ( o& the 199% 8ules o& >ivil

Brocedure. 8espondent was accordingly dee!ed to have waived the "ling o& the

reuired co!!ent.

3y the sa!e 8esolution o& *ece!ber 2, 199(, the case was re&erred to the

Integrated 3ar o& the Bhilippines ;I3B= &or investigation, report and reco!!endation

within ninety days.

The I3B, acting on the co!plaint, issued a notice o& hearing on :epte!ber 1+,

21,E12 copy o& which was sent to respondent at his o@ce address via registered

!ail, covered by 8egistry 8eceipt Co. 26$ o& the #eralco Bost )@ce. E10 )n the

scheduled date o& hearing, co!plainants personally appeared with their

counsel. 8espondent &ailed to show up.

iven the length o& ti!e that the case re!ained pending &ro! its "ling, the I3B

>o!!ission on 3ar *iscipline, by )rder o& )ctober 12, 21,E1+ directed

co!plainants to ust "le their position paper with a@davits and supporting

docu!ents in lieu o& actual presentation o& witnesses and to serve a copy thereo& to

respondent at his last known address.

In co!pliance with the I3B )rder, co!plainants "led on pril 1, 22 their

position paper,E1$ anne/ed to which were photocopies o&5 1= a #ay $, 1990

>erti"cationE16 issued by the #etrobank >abanatuan 3ranch certi&ying that it issued

1(



















the de!and dra&ts to the payees enu!erated below, which were debited &ro! the

account o& #r. >hua Map n under :avings ccount Co. %65

*L* Co. Bayee !ount *ate o& Issue

21+$9% Blanters *ev. 3ank B ($,299.$+ 1219($

21+%6 Blanters *ev. 3ank 1,. 11+(6

21+%61 tty. :i!eon #esina, Dr. %%,(26.1 11+(6G

2= @davit dated February 1(, 19(6E1% o& respondent acknowledging a debt

o& B+,. to co!plainant na lvaran >hua and pro!ising to pay interest

thereon within 2 years to co!!ence upon the signing thereo& EFebruary 16, 199(

and, in the event no partial or &ull pay!ent o& the principal is !ade within 2 years,

na lvaran >hua is under no obligation to pay any lease rentals over the lot

situated in 3urgos venue, >abanatuan >ity where the )ceanic ardware 3ldg. is

erectedG 0= *eed o& bsolute :ale dated Danuary 19, 19($E1( and += *eed o&

bsolute :ale dated Duly 9, 19%9,E19 both e/ecuted by Felicisi!a #. #elencio in &avor

o& co!plainantG $= T>T Co. T+(11+ E2 issued by the >abanatuan >ity in the na!e o&

co!plainants on Danuary 21, 19(6G 6= @davit o& Duanito >. Tecson E21 dated Danuary

2, 19(6 charging co!plainants et al. &or Falsi"cation o& Bublic *ocu!entsG %= *eed

o& bsolute :ale dated pril 1, 19(6 e/ecuted by co!plainants in &avor o& #rs.

#esinaGE22 and (= T>T Co. T+(0(0issued on pril +, 19(6 in the na!e o& Felicisi!a

#. #elencioGE20 and 9= >o!plaint o& spouses >hua Map n and na lvaran >hua and

#arcelina sia, &or *eclaration o& Cullity o& *eed o& :ale and 8econveyance o& 8eal

Broperty against respondent and his two siblings.E2+

copy o& co!plainants position paper was sent on #arch 1(, 22 to

respondent at his o@ce address by registered !ail covered by 8egistry 8eceipt Co.

$2%(.E2$ There is no showing i& respondent received this !ail !atter.

The I3B once !ore scheduled, by notice o& *ece!ber 10, 22, E26 a hearing o&

the ad!inistrative case to Danuary 1$, 20, copy o& which notice was sent to

respondent at his o@ce address by registered !ail covered by 8egistry 8eceipt Co.

29$0 issued by the #eralco Bost )@ce.E2%

)n the scheduled hearing on Danuary 1$, 20, the I3B Investigating

>o!!issioner, by )rder o& even date, E2( noted the presence o& co!plainants, and

the absence o& respondent, copy o& the notice o& hearing to who! was returned

unserved with the notation 8T:#oved. The case was thereupon dee!ed sub!itted

&or report and reco!!endation.

19



























)n Dune 21, 20, the I3B passed 8esolution Co. OA200+2 E29 adopting and

approving the report and reco!!endation o& tty. 8ebecca Aillanueva#aala, the

Investigating >o!!issioner o& the case.

In her #arch 0, 20 8eport and 8eco!!endation,E0 Investigation

>o!!issioner #aala observed as &ollows5

lawyer should not engage or participate on any unlaw&ul, dishonest, i!!oral or

deceit&ul conduct. The !oral character he displayed when he applied &or ad!ission

at the 3ar !ust be !aintained incessantly. )therwise, his privilege to practice the

legal pro&ession !ay be withdrawn &ro! hi! ;8ule 1.1, >ode o& Bro&essional

8esponsibility=. )n the basis o& the uncontroverted &acts and evidence

presented, respondent

tty. :i!eon #. #esina has co!!itted gross !isconduct which shows hi! to be

un"t &or the o@ce and unworthy o& the privilege which his license and law con&er

upon hi!,

and reco!!ended that respondent be suspended &or a period o& )ne ;1= Mear.

This >ourt "nds that indeed, respondent is guilty o& gross !isconduct.

First, by advising co!plainants to e/ecute another *eed o& bsolute :ale

antedated to 19%9 to evade pay!ent o& capital gains ta/es, he violated his duty to

pro!ote respect &or law and legal processes,2( and not to abet activities ai!ed at

de"ance o& the lawG29 That respondent intended to, as he did de&raud not a private

party but the govern!ent is aggravating.0

:econd, when respondent convinced co!plainants to e/ecute another

docu!ent, a si!ulated *eed o& bsolute :ale wherein they !ade it appear that

co!plainants reconveyed the #elencio property to his !other, he co!!itted

dishonesty.01

Third, when on #ay 2, 199 respondent inveigled his own clients, the >hua

spouses, into turning over to hi! the owners copy o& his !others title upon the

!isrepresentation that he would, in &our !onths, have a deed o& sale e/ecuted by

his !other in &avor o& co!plainants, he likewise co!!itted dishonesty.

That the signature o& Felicisi!a #. #elencio in the 19($ docu!ent02 and that in

the 19%9 docu!ent00 are !arkedly di?erent is in &act is a badge o& &alsi"cation o&

either the 19%9 or the 19($ docu!ent or even both.

) propos is this >ourts &ollowing pronounce!ent in &a#pil v. 3alde20+

2









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s a rule, a lawyer is not barred &ro! dealing with his client

but the business transaction !ust be characteri4ed with ut!ost honesty and good &

aith. The !easure o& good &aith which an attorney is reuired toe/ercise in his deali

ngs with his client is a !uch higher standard that is reuired in business dealings w

here the parties trade at ar!s length. 3usiness transactions between an attorney

and his client are dis&avored and discouraged by the policy o& the law. ence, courtscare&ully watch these transactions to assure that no advantage is taken by a lawyer

over his client. This rule is &ounded on public policy &or, by virtue o& his o@ce, an

attorney is in an easy position to take advantage o& the credulity and ignorance o&

his client. Thus, no presu!ption o& innocence or i!probability o& wrongdoing is

considered in an attorneys &avor.0$ ;Hnderscoring supplied=

8espondent having welched on his pro!ise to cause the reconveyance o& the

#elencio property to co!plainants, consideration o& whether he should be ordered

to honor such pro!ise should be taken up in the civil case "led &or the purpose, the

issue there being one o& ownership while that in the case at bar is !oral "tness. 0%

In "ne, respondent violated his oath o& o@ce and, !ore speci"cally, the

&ollowing canons o& the >ode o& Bro&essional 8esponsibility5

>C)C 1. -M<8 : HB)* T< >)C:TITHTI)C, )3<M T< -: )F T<

C* C* B8)#)T< 8<:B<>T F)8 - C* < B8)><::<:.

8ule 1.1. lawyer shall not engage in unlaw&ul, dishonest, i!!oral or deceit&ul

conduct.

8ule 1.2. lawyer shall not counsel or abet activities ai!ed at de"ance o& the lawor at lessening con"dence in the legal syste!.

>C)C %. -M<8 : T TI#<: HB)* T< ICT<8ITM C* *ICITM )F

T< < B8)F<::I)C C* :HBB)8T T< >TIAITI<: )F T< ICT<8T<* 38.

8ule %.0. lawyer shall not engage in conduct that adversely reNects on his

"tness to practice law, nor shall he, whether in public or private li&e, behave in a

scandalous !anner to the discredit o& the legal pro&ession.

>C)C 1$. -M<8 : )3:<8A< >C*)8, FI8C<:: C* )MTM IC I:

*<IC: C* T8C:>TI)C: -IT I: >I<CT:.

8ule 1$.%. lawyer shall i!press upon his client co!pliance with the laws and

the principles o& &airness.>C)C 1%. -M<8 )-<: FI*<ITM T) T< >H:< )F

I: >I<CT C* < : 3< #IC*FH )F T< T8H:T C* >)CFI*<C>< 8<B):<*

IC I#.

21







&ERE(ORE, respondent TTM. :I#<)C #. #<:IC, D8. is, &or gross

!isconduct, hereby *I:388<*.

et copies o& this *ecision be &urnished all courts, the Integrated 3ar o& the

Bhilippines, and the )@ce o& the 3ar >on"dant.

SO OR$ERE$.

+avide, %r., $.%., 'uno, 'anganiban, 4uisumbing, 5nares67antiago, $arpio,

)ustria6Martine2, $orona, $arpio6Morales, $alle8o, 7r., )2cuna, "inga, and $hico6

&a2ario, %%., concur.

7andoval6(utierre2, %., on leave.

EN BANC

ROBER+O SORIANO, A.C. No. 679Co?@!/"!"t,*re0e"t>*!"!"/b!", CJ,

*"o,/0?b/",

:"!re0-S!"t/!o,S!"#o!-Gt/erre,C!r@/o,- er00 - A0tr/!-M!rt/"e,

Coro"!,C!r@/o Mor!e0,C!eDo, Sr.,Ac"!,+/"!,C)/co-N!!r/o, !"#G!rc/!, JJ Att. MANEL $IZON, *ro?!te#>Re0@o"#e"t. '!"!r 5, 6---------------------------------------------------------------------------------

$ECISION *ER CRIAM>

3e&ore us is a >o!plaint@davitE1 &or the disbar!ent o& tty. #anuel *i4on,"led by 8oberto :oriano with the >o!!ission on 3ar *iscipine ;>3*= o& theIntegrated 3ar o& the Bhilippines ;I3B=. >o!plainant alleges that the conviction o&

22

http://sc.judiciary.gov.ph/jurisprudence/2006/jan2006/ac_6792.htm#_ftn1




respondent &or a cri!e involving !oral turpitude, together with the circu!stancessurrounding the conviction, violates >anon 1 o& 8ule 1.1 o& the >ode o& Bro&essional8esponsibilityGE2 and constitutes su@cient ground &or his disbar!ent under :ection2% o& 8ule 10( o& the 8ules o& >ourt.E0

20







3ecause o& the &ailure o& tty. *i4on to sub!it his nswer to the >o!plaint,the >3* issued a Cotice dated #ay 2, 2+, in&or!ing hi! that he was in de&ault,and that an e/parte hearing had been scheduled &or Dune 11, 2+.E+ &ter thathearing, co!plainant !ani&ested that he was sub!itting the case on the basis o& the >o!plaint and its attach!ents.E$ ccordingly, the >3*directed hi! to "le hisBosition Baper, which he did on Duly 2%, 2+. E6 &terwards, the case was dee!ed

sub!itted &or resolution. )n *ece!ber 6, 2+, >o!!issioner Teresita D. erbosa rendered her 8eport and

8eco!!endation, which was later adopted and approved by the I3B 3oard o& overnorsin its 8esolution Co. OAI2$(+ dated #arch 12, 2$. In his >o!plaint@davit, :oriano alleged that respondent had violated >anon 1,8ule 1.1 o& the >ode o& Bro&essional 8esponsibilityG and that the conviction o& thelatter &or &rustrated ho!icide,E% which involved !oral turpitude, should result in hisdisbar!ent.

The &acts leading to respondents conviction were su!!ari4ed by 3ranch 6o& the 8egional Trial >ourt o& 3aguio >ity in this wise5

/ / /. The accused was driving his brown Toyota >orolla and was

on his way ho!e a&ter gassing up in preparation &or his trip to>oncepcion, Tarlac with his wi&e. long banao :treet, a ta/i driverovertook the car driven by the accused not knowing that the driver o& the car he had overtaken is not ust so!eone, but a lawyer and apro!inent !e!ber o& the 3aguio co!!unity who was under theinNuence o& liuor. Incensed, the accused tailed the ta/i driver until thelatter stopped to !ake a turn at Ethe >hugu! and >arino :treets. Theaccused also stopped his car, berated the ta/i driver and held hi! byhis shirt. To stop the aggression, the ta/i driver &orced open his doorcausing the accused to &all to the ground. The ta/i driver knew that the

accused had been drinking because he s!elled o& liuor. Taking pity onthe accused who looked elderly, the ta/i driver got out o& his car tohelp hi! get up. 3ut the accused, by now enraged, stood upi!!ediately and was about to deal the ta/i driver a "st blow when thelatter bo/ed hi! on the chest instead. The accused &ell down a secondti!e, got up again and was about to bo/ the ta/i driver but the lattercaught his "st and turned his ar! around. The ta/i driver held on tothe accused until he could be paci"ed and then released hi!. Theaccused went back to his car and got his revolver !aking sure that thehandle was wrapped in a handkerchie&. The ta/i driver was on his wayback to his vehicle when he noticed the eyeglasses o& the accused onthe ground. e picked the! up intending to return the! to theaccused. 3ut as he was handing the sa!e to the accused, he was !etby the barrel o& the gun held by the accused who "red and shot hi!hitting hi! on the neck. e &ell on the thigh o& the accused so thelatter pushed hi! out and sped o?. The incident was witnessed byntonio 3illanes whose testi!ony corroborated that o& the ta/i driver,the co!plainant in this case, 8oberto :oriano.E(

2+













It was the prosecution witness, ntonio 3illanes, who ca!e to the aid o& :oriano and brought the latter to the hospital. 3ecause the bullet had lacerated thecarotid artery on the le&t side o& his neck, E9 co!plainant would have surely died o& he!orrhage i& he had not received ti!ely !edical assistance, according to theattending surgeon, *r. Francisco ernande4, Dr. :oriano sustained a spinal cordinury, which caused paralysis on the le&t part o& his body and disabled hi! &or his

ob as a ta/i driver.

The trial court pro!ulgated its *ecision dated Cove!ber 29, 21. )n Danuary 1(, 22, respondent "led an application &or probation, which was grantedby the court on several conditions. These included satis&action o& the civil liabilitiesi!posed by Ethe court in &avor o& the o?ended party, 8oberto :oriano.E1

ccording to the unre&uted state!ents o& co!plainant, tty. *i4on, who has

yet to co!ply with this particular undertaking, even appealed the civil liability to the>ourt o& ppeals.E11

In her 8eport and 8eco!!endation, >o!!issioner erbosa reco!!ended that

respondent be disbarred &ro! the practice o& law &or having been convicted o& acri!e involving !oral turpitude.

The co!!issioner &ound that respondent had not only been convicted o& such

cri!e, but that the latter also e/hibited an obvious lack o& good !oral character,based on the &ollowing &acts5

1. e was under the inNuence o& liuor while driving his carG2. e reacted violently and atte!pted to assault >o!plainant only

because the latter, driving a ta/i, had overtaken hi!G0. >o!plainant having been able to ward o? his atte!pted assault,

8espondent went back to his car, got a gun, wrapped the sa!e

with a handkerchie& and shot >o!plainantE, who was unar!edG+. -hen >o!plainant &ell on hi!, 8espondent si!ply pushed hi! out

and NedG$. *espite positive identi"cation and overwhel!ing evidence,

8espondent denied that he had shot >o!plainantG6. part &ro! Ehis denial, 8espondent also lied when he clai!ed that

he was the one !auled by >o!plainant and two unidenti"edpersonsG and,

%. lthough he has been placed on probation, 8espondent hasE, todateE, not yet satis"ed his civil liabilities to >o!plainant.E12

)n Duly (, 2$, the :upre!e >ourt received &or its "nal action the I3B8esolution adopting the 8eport and 8eco!!endation o& the Investigating>o!!issioner.

-e agree with the "ndings and reco!!endations o& >o!!issioner erbosa,

as approved and adopted by the I3B 3oard o& overnors.

2$











Hnder :ection 2% o& 8ule 10( o& the 8ules o& >ourt, conviction &or a cri!einvolving !oral turpitude is a ground &or disbar!ent or suspension. 3y suchconviction, a lawyer is dee!ed to have beco!e un"t to uphold the ad!inistration o&

ustice and to be no longer possessed o& good !oral character. E10 In the instantcase, respondent has been &ound guiltyG and he stands convicted, by "nal udg!ent,o& &rustrated ho!icide. :ince his conviction has already been established and is no

longer open to uestion, the only issues that re!ain to be deter!ined are as&ollows5 1= whether his cri!e o& &rustrated ho!icide involves !oral turpitude, and 2=whether his guilt warrants disbar!ent. #oral turpitude has been de"ned as everything which is done contrary to ustice,!odesty, or good !oralsG an act o& baseness, vileness or depravity in the privateand social duties which a !an owes his &ellow!en, or to society in general, contraryto ustice, honesty, !odesty, or good !orals.E1+

The uestion o& whether the cri!e o& ho!icide involves !oral turpitude hasbeen discussed in nternational Rice Research nstitute /RR0 v. &LR$,E1$ a laborcase concerning an e!ployee who was dis!issed on the basis o& his conviction &orho!icide. >onsidering the particular circu!stances surrounding the co!!ission o&

the cri!e, this >ourt reected the e!ployers contention and held that ho!icide inthat case did not involve !oral turpitude. ;I& it did, the cri!e would have beenviolative o& the I88Is <!ploy!ent Bolicy 8egulations and indeed a ground &or dis!issal.=

The >ourt e/plained that, having disregarded the attendant circu!stances, the e!ployer !adea pronounce!ent that was precipitate. Further!ore, it was not &or the latter to deter!ineconclusively whether a cri!e involved !oral turpitude. That discretion belonged to the courts,as e/plained thus5

/ / /. *omicide may or may not involve moral turpitude

depending on the degree of the crime. #oral turpitude is not involvedin every cri!inal act and is not shown by every known and intentionalviolation o& statute, but whether any particular conviction involves

moral turpitude may be a uestion of fact and freuently depends onall the surrounding circumstances. x x x.E16 ;<!phasis supplied=

In the I88I case, in which the cri!e o& ho!icide did not involve !oralturpitude, the >ourt appreciated the presence o& inco!plete sel&de&ense and totalabsence o& aggravating circu!stances. For a better understanding o& that *ecision,the circu!stances o& the cri!e are uoted as &ollows5

/ / /. The &acts on record show that #icosa Ethe I88I e!ployee wasthen urinating and had his back turned when the victi! drove his "stunto #icosa's &aceG that the victi! then &orcibly rubbed #icosa's &aceinto the "lthy urinalG that #icosa pleaded to the victi! to stop theattack but was ignored and that it was while #icosa was in thatposition that he drew a &an kni&e &ro! the le&t pocket o& his shirt anddesperately swung it at the victi! who released his hold on #icosaonly a&ter the latter had stabbed hi! several ti!es. These &acts showthat #icosa's intention was not to slay the victi! but only to de&end hisperson. The appreciation in his &avor o& the !itigating circu!stances o&

26











sel&de&ense and voluntary surrender, plus the total absence o& anyaggravating circu!stance de!onstrate that #icosa's character andintentions were not inherently vile, i!!oral or unust. E1%

The present case is totally di?erent. s the I3B correctly &ound, the circu!stancesclearly evince the !oral turpitude o& respondent and his unworthiness to practicelaw.

tty. *i4on was de"nitely the aggressor, as he pursued and shot co!plainantwhen the latter least e/pected it. The act o& aggression shown by respondent willnot be !itigated by the &act that he was hit once and his ar! twisted byco!plainant. Hnder the circu!stances, those were reasonable actions clearlyintended to &end o? the lawyers assault. -e also consider the trial courts "nding o& treachery as a &urther indication o& theskewed !orals o& respondent. e shot the victi! when the latter was not in aposition to de&end hi!sel&. In &act, under the i!pression that the assault was

already over, the unar!ed co!plainant was !erely returning the eyeglasses o& tty.*i4on when the latter une/pectedly shot hi!. To !ake !atters worse, respondentwrapped the handle o& his gun with a handkerchie& so as not to leave "ngerprints. Inso doing, he betrayed his sly intention to escape punish!ent &or his cri!e.

The totality o& the &acts un!istakably bears the ear!arks o& !oral turpitude.3y his conduct, respondent revealed his e/tre!e arrogance and &eeling o& sel&i!portance. s it were, he acted like a god on the road, who deserved to bevenerated and never to be slighted. >learly, his inordinate reaction to a si!pletra@c incident reNected poorly on his "tness to be a !e!ber o& the legalpro&ession. is overreaction also evinced vindictiveness, which was de"nitely anundesirable trait in any individual, !ore so in a lawyer. In the tenacity with which he

pursued co!plainant, we see not the persistence o& a person who has beengrievously wronged, but the obstinacy o& one trying to assert a &alse sense o& superiority and to e/act revenge.

2%





It is also glaringly clear that respondent seriously transgressed >anon 1 o& the>ode o& Bro&essional 8esponsibility through his illegal possession o& an unlicensed"rear!E1( and his unust re&usal to satis&y his civil liabilities. E19 e has thus bra4enlyviolated the law and disobeyed the law&ul orders o& the courts. -e re!ind hi! that,both in his attorneys oathE2 and in the >ode o& Bro&essional 8esponsibility, he boundhi!sel& to obey the laws o& the land.

ll told, tty. *i4on has shown through this incident that he is wanting in even

a basic sense o& ustice. e obtained the benevolence o& the trial court when itsuspended his sentence and granted hi! probation. nd yet, it has been &ouryearsE21 since he was ordered to settle his civil liabilities to co!plainant. To date,respondent re!ains ada!ant in re&using to &ul"ll that obligation. 3y his e/tre!ei!petuosity and intolerance, as shown by his violent reaction to a si!ple tra@caltercation, he has taken away the earning capacity, good health, and youth&ul vigoro& his victi!. :till, tty. *i4on begrudges co!plainant the !easly a!ount that couldnever even &ully restore what the latter has lost.

>onviction &or a cri!e involving !oral turpitude !ay relate, not to the

e/ercise o& the pro&ession o& lawyers, but certainly to their good !oral character.E22 -here their !isconduct outside o& their pro&essional dealings is so gross as toshow the! !orally un"t &or their o@ce and unworthy o& the privileges con&erredupon the! by their license and the law, the court !ay be usti"ed in suspending orre!oving the! &ro! that [email protected]

-e also adopt the I3Bs "nding that respondent displayed an utter lack o&

good !oral character, which is an essential uali"cation &or the privilege to enterinto the practice o& law. ood !oral character includes at least co!!on honesty.E2+

In the case at bar, respondent consistently displayed dishonest and

duplicitous behavior. s &ound by the trial court, he had sought, with the aid o& Aice

#ayor *aniel Farias, an outo&court settle!ent with co!plainants &a!ily.E2$ 3utwhen this e?ort &ailed, respondent concocted a co!plete lie by !aking it appearthat it was co!plainants &a!ily that had sought a con&erence with hi! to obtain hisre&erral to a neurosurgeon.E26

The lies o& tty *i4on did not end there. e went on to &abricate an entirely

i!plausible story o& having been !auled by co!plainant and two other persons.E2% The trial court had this to say5

The physical evidence as testi"ed to by no less than three ;0=

doctors who e/a!ined Etty. *i4on does not support his allegationthat three people including the co!plainant helped each other inkicking and bo/ing hi!. The inuries he sustained were so !inor that itis i!probableE, i& not downright unbelievableE, that three people whohe said were bent on beating hi! to death could do so little da!age.)n the contrary, his inuries sustain the co!plainants version o& theincident particularly when he said that he bo/ed the accused on thechest. / / /.E2(

2(

























awyers !ust be !inisters o& truth. Co !oral uali"cation &or bar

!e!bership is !ore i!portant than truth&ulness.E29 The rigorous ethics o& thepro&ession places a pre!iu! on honesty and conde!ns duplicitous behavior.E0 ence, lawyers !ust not !islead the court or allow it to be !isled by anyarti"ce. In all their dealings, they are e/pected to act in good &aith.

29







The actions o& respondent erode rather than enhance public perception o& thelegal pro&ession. They constitute !oral turpitude &or which he should be disbarred.aw is a noble pro&ession, and the privilege to practice it is bestowed only uponindividuals who are co!petent intellectually, acade!ically and, eually i!portant,!orally. 3ecause they are vanguards o& the law and the legal syste!, lawyers !ustat all ti!es conduct the!selves, especially in their dealings with their clients and

the public at large, with honesty and integrity in a !anner beyond reproach.E01

The &oregoing abhorrent acts o& respondent are not !erely dishonorableG they

reveal a basic !oral Naw. >onsidering the depravity o& the o?ense he co!!itted,we "nd the penalty reco!!ended by the I3B proper and co!!ensurate.

The purpose o& a proceeding &or disbar!ent is to protect the ad!inistration o&

ustice by reuiring that those who e/ercise this i!portant &unction be co!petent,honorable and reliable lawyers in who! courts and clients !ay reposecon"dence.E02 Thus, whenever a clear case o& degenerate and vile behavior disturbsthat vital yet &ragile con"dence, we shall not hesitate to rid our pro&ession o& odious!e!bers.

-e re!ain aware that the power to disbar !ust be e/ercised with great

caution, and that disbar!ent should never be decreed when any lesser penaltywould acco!plish the end desired. In the instant case, however, the >ourt cannote/tend that !uni"cence to respondent. is actions so despicably and wantonlydisregarded his duties to society and his pro&ession. -e are convinced that !etingout a lesser penalty would be irreconcilable with our lo&ty aspiration &or thelegal pro&ession that every lawyer be a shining e/e!plar o& truth and ustice.

-e stress that !e!bership in the legal pro&ession is a privilege de!anding a

high degree o& good !oral character, not only as a condition precedent toad!ission, but also as a continuing reuire!ent &or the practice o& law. :adly,

herein respondent has &allen short o& the e/acting standards e/pected o& hi! as avanguard o& the legal pro&ession.In su!, when lawyers are convicted o& &rustrated ho!icide, the attending circu!stancesnot the !ere &act o& their conviction would de!onstrate their "tness to re!ain in thelegal pro&ession. In the present case, the appalling vindictiveness, treachery, and bra4endishonesty o& respondent clearly show his unworthiness to continue as a !e!ber o& thebar.

-<8<F)8<, 8<:B)C*<CT #CH< *IP)C is hereby DISBARRED, and his

na!e is )8*<8<* :T8I>Q<C &ro! the 8oll o& ttorneys. et a copy o& this *ecisionbe entered in his record as a !e!ber o& the 3arG and let notice o& the sa!e beserved on the Integrated 3ar o& the Bhilippines, and on the )@ce o& the >ourtd!inistrator &or circulation to all courts in the country.

:) )8*<8<*.

AR+EMIO %. *ANGANIBAN>hie& Dustice

0







FEL$ S+EMMERIF, .>. Co. (1re@re0e"te# b A++:S.&ERMINIO A. LIANAG !"#INS+ON *.L. ESGERRA,

Co?@!/"!"t, Bresent5

BHC), $.%.,RHI:H#3IC,

MC8<::CTI),>8BI),

>)8)C,- e r 0 0 - >8BI) #)8<:,K

>I>)CP8I),A<:>), D8.,C>H8,<)C8*)*< >:T8),38I)C,B<8T and

3<8:#IC, %%. A++:. LEONEL N. MAS,

Re0@o"#e"t. Bro!ulgated5

Dune 16, 29 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

R E S O L + I O NPer Curiam:

>o!plainant Qeld :te!!erik is a citi4en and resident o& *en!ark. In one o& his tripsto the Bhilippines, he was introduced to respondent tty. eonuel C. #as. That washis !is&ortune.

In one visit to the Bhilippines, co!plainant !arveled at the beauty o& thecountry and e/pressed his interest in acuiring real property in the Bhilippines. econsulted respondent who advised hi! that he could legally acuire and own realproperty in the Bhilippines. 8espondent even suggested an (6,99( s.!. property inRuarry, gusuin, >awag, :ubic, Pa!bales with the assurance that the property wasalienable.

Trusting respondent, co!plainant agreed to purchase the property through

respondent as his representative or attorneyin&act. >o!plainant also engaged theservices o& respondent &or the preparation o& the necessary docu!ents. For thispurpose, respondent de!anded and received a B+, &ee. >on"dent that respondent would &aith&ully carry out his task, co!plainant returnedto *en!ark, entrusting the processing o& the necessary paperwork to respondent.

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Therea&ter, respondent prepared a contract to sell the property betweenco!plainant, represented by respondent, and a certain 3oni&acio de #esa, thepurported owner o& the property.E1 :ubseuently, respondent prepared andnotari4ed a deed o& sale in which de #esa sold and conveyed the property to acertain ilyn on4ales &or B0.( !illion.E28espondent also dra&ted and notari4ed anagree!ent between co!plainant and on4ales stating that it was co!plainant who

provided the &unds &or the purchase o& the property.E0 >o!plainant then gaverespondent the &ull a!ount o& the purchase price ;B0.( !illion= &or which respondentissued an acknowledg!ent receipt.E+

&ter the various contracts and agree!ents were e/ecuted, co!plainant tried to getin touch with respondent to inuire about when the property could be registered inhis na!e. owever, respondent suddenly beca!e scarce and re&used to answerco!plainants calls and e!ail !essages. -hen co!plainant visited the Bhilippines again in Danuary 2$, he engaged theservices o& the Di!ene4 on4ales iwanag 3ello Aalde4 >aluya J Fernande4 aw)@ce to ascertain the status o& the property he supposedly bought. e was

devastated to learn that aliens could not own land under Bhilippine laws. #oreover,veri"cation at the >o!!unity <nviron!ent J Catural 8esources )@ce ;><C8)= o& the *epart!ent o& <nviron!ent and Catural 8esources in )longapo >ity revealedthat the property was inalienable as it was situated within the &or!er H: #ilitary8eservation.E$ The ><C8) also stated that the property was not subect todisposition or acuisition under 8epublic ct Co. 1+1.E6

Therea&ter, co!plainant, through his attorneysin&act,E% e/erted diligent e?orts tolocate respondent &or purposes o& holding hi! accountable &or his &raudulent acts.Inuiry with the )longapo >hapter o& the Integrated 3ar o& the Bhilippines ;I3B=disclosed that respondent was in arrears in his annual dues and that he had alreadyabandoned his law o@ce in )longapo >ity.E( :earch o& court records o& cases

handled by respondent only yielded his abandoned o@ce address in )longapo >ity.

>o!plainant "led a co!plaint &or disbar!ent against respondent in the>o!!ission on 3ar *iscipline ;>3*= o& the I3B. E9 e deplored respondents acts o& serious !isconduct. In particular, he sought the e/pulsion o& respondent &ro! thelegal pro&ession &or gravely !isrepresenting that a &oreigner could legally acuireland in the Bhilippines and &or !aliciously absconding with co!plainants B0.(!illion.E1

8espondent &ailed to "le his answer and position paper despite service o& notice athis last known address. Ceither did he appear in the scheduled !andatorycon&erence. In this connection, the >3* &ound that respondent abandoned his lawpractice in )longapo >ity a&ter his transaction with co!plainant and that he did notsee it "t to contest the charges against hi!.E11

The >3* ruled that respondent used his position as a lawyer to !islead co!plainanton the !atter o& land ownership by a &oreigner. E12 e even went through the !otiono& preparing &alsi"ed and "ctitious contracts, deeds and agree!ents. nd &or allthese sha!eless acts, he collected B+, &ro! co!plainant. -orse, he pocketedthe B0.( !illion and absconded with it.E10

02





























The >3* &ound respondent to be nothing !ore than an e!be44ler who

!isused his pro&essional status as an attorney as a tool &or deceiving co!plainantand absconding with co!plainants !oney.E1+ 8espondent was dishonest anddeceit&ul. e abused the trust and con"dence reposed by co!plainant in hi!. The>3* reco!!ended the disbar!ent o& respondent.E1$

The 3oard o& overnors o& the I3B adopted the "ndings and reco!!endation o& the>3* with the !odi"cation that respondent was &urther reuired to return thea!ount o& B+.2 !illion to respondent.E16

-e agree with the I3B. S((ICIENC: O( NO+ICE O(+&E $ISBARMEN+ *ROCEE$INGS

-e shall "rst address a threshold issue5 was respondent properly given notice o& the

disbar!ent proceedings against hi!7 Mes.

The respondent did not "le any answer or position paper, nor did he appearduring the scheduled !andatory con&erence. 8espondent in &act abandoned his lastknown address, his law o@ce in )longapo >ity, a&ter he co!!itted thee!be44le!ent.

8espondent should not be allowed to bene"t &ro! his disappearing act. e

can neither de&eat this >ourts urisdiction over hi! as a !e!ber o& the bar norevade ad!inistrative liability by the !ere ruse o& concealing his whereabouts. Thus,service o& the co!plaint and other orders and processes on respondents o@ce wassu@cient notice to hi!.

Indeed, since he hi!sel& rendered the service o& notice on hi! i!possible,

the notice reuire!ent cannot apply to hi! and he is thus considered to havewaived it. The law does not reuire that the i!possible be done. &emo tenetur adimpossibile.E1% The law obliges no one to per&or! an i!possibility. aws and rules!ust be interpreted in a way that they are in accordance with logic, co!!on sense,reason and practicality.E1(

In this connection, lawyers !ust update their records with the I3B by in&or!ing theI3B Cational )@ce or their respective chaptersE19 o& any change in o@ce orresidential address and other contact details.E2 In case such change is not dulyupdated, service o& notice on the o@ce or residential address appearing in therecords o& the I3B Cational )@ce shall constitute su@cient notice to a lawyer &orpurposes o& ad!inistrative proceedings against hi!.

RES*ON$EN+S A$MINIS+RA+I%EIN(RAC+IONSAN$ &IS LIABILI+: +&ERE(OR

00

















awyers, as !e!bers o& a noble pro&ession, have the duty to pro!oterespect &or the law and uphold the integrity o& the bar. s !en and wo!enentrusted with the law, they !ust ensure that the law &unctions to protect libertyand not as an instru!ent o& oppression or deception.

8espondent has been weighed by the e/acting standards o& the legal

pro&ession and has been &ound wanting.8espondent co!!itted a serious breach o& his oath as a lawyer. e is also guilty o& culpable violation o& the >ode o& Bro&essional 8esponsibility, the code o& ethics o& the legal pro&ession. ll lawyers take an oath to support the >onstitution, to obey the laws and to do no&alsehood.E21 That oath is neither !ere &or!al cere!ony nor hollow words. It is asacred trust that should be upheld and kept inviolable at all ti!es. E22

awyers are servants o& the lawE20 and the law is their !aster. They should

not si!ply obey the laws, they should also inspire respect &or and obedience theretoby serving as e/e!plars worthy o& e!ulation. Indeed, that is the "rst precept o& the

>ode o& Bro&essional 8esponsibility5 >C)C 1 -M<8 : HB)* T< >)C:TITHTI)C, )3<M T<-: )F T< C* C* B8)#)T< 8<:B<>T F)8 - C* <B8)><::<:.

:ection %, rticle OII o& the >onstitution provides5 :<>. %. :ave in cases o& hereditary succession, no private lands shallbe trans&erred or conveyed e/cept to individuals, corporations, orassociations uali"ed to acuire or hold lands o& the public do!ain.

This >ourt has interpreted this provision, as early as the 19+% case 9riven#o

v. Register of +eeds,E2+ to !ean that under the >onstitution, aliens !ay not acuireprivate or agricultural lands, including residential lands. The provision is adeclaration o& i!perative constitutional policy.E2$

8espondent, in giving advice that directly contradicted a &unda!ental

constitutional policy, showed disrespect &or the >onstitution and gross ignorance o& basic law. -orse, he prepared spurious docu!ents that he knew were void andillegal.

3y !aking it appear that de #esa undertook to sell the property to

co!plainant and that de #esa therea&ter sold the property to on4ales who !adethe purchase &or and in behal& o& co!plainant, he &alsi"ed public docu!ents andknowingly violated the nti*u!!y aw.E26

8espondents !isconduct did not end there. 3y advising co!plainant that a

&oreigner could legally and validly acuire real estate in the Bhilippines and byassuring co!plainant that the property was alienable, respondent deliberately&oisted a &alsehood on his client. e did not give due regard to the trust and

0+















con"dence reposed in hi! by co!plainant. Instead, he deceived co!plainant and!isled hi! into parting with B+, &or services that were both illegal andunpro&essional. #oreover, by pocketing and !isappropriating the B0.( !illion givenby co!plainant &or the purchase o& the property, respondent co!!itted a&raudulent act that was cri!inal in nature.

8espondent spun an intricate web o& lies. In the process, he co!!ittedunethical act a&ter unethical act, wantonly violating laws and pro&essionalstandards.

For all this, respondent violated not only the lawyers oath and >anon 1 o& the

>ode o& Bro&essional 8esponsibility. e also transgressed the &ollowing provisions o& the >ode o& Bro&essional 8esponsibility5

8ule 1.1. A !=er 0)! "ot e"!e /" "!=, #/0)o"e0t,/??or! or #ece/t co"#ct. 8ule 1.2. A !=er 0)! "ot co"0e or !bet !ct//t/e0 !/?e# !t

#e!"ce o t)e != or !t e00e"/" co"#e"ce /" t)e e!00te?. >C)C % A LA:ER S&ALL A+ ALL +IMES *&OL$ +&EIN+EGRI+: AN$ $IGNI+: O( +&E LEGAL *RO(ESSION C*:HBB)8T T< >TIAITI<: )F T< ICT<8T<* 38. >C)C 1$ A LA:ER S&ALL OBSER%E CAN$OR, (AIRNESS C*)MTM IN ALL &IS $EALINGS AN$ +RANSAC+IONS I+& &ISCLIEN+. >C)C 16 A LA:ER S&ALL &OL$ IN +RS+ ALL MONE:S AN$*RO*ER+IES O( &IS CLIEN+ TT #M >)#< ICT) I:B)::<::I)C. >C)C 1% A LA:ER )-<: FI*<ITM T) T< >H:< )F I: >I<CTC* < S&ALL BE MIN$(L O( +&E +RS+ AN$ CON(I$ENCERE*OSE$ IN &IM. ;e!phasis supplied= lawyer who resorts to ne&arious sche!es to circu!vent the law and uses

his legal knowledge to &urther his sel"sh ends to the great preudice o& others, posesa clear and present danger to the rule o& law and to the legal syste!. e does notonly tarnish the i!age o& the bar and degrade the integrity and dignity o& the legalpro&ession, he also betrays everything that the legal pro&ession stands &or.

It is respondent and his kind that give lawyering a bad na!e and !ake

lay!en support *ick the 3utchers call, Qill all lawyersSE2% disgrace to theirpro&essional brethren, they !ust be purged &ro! the bar.

&ERE(ORE, respondent tty. eonuel C. #as is hereby $ISBARRE$. The>lerk o& >ourt is directed to i!!ediately strike out the na!e o& respondent &ro! the8oll o& ttorneys.

0$





8espondent is hereby OR$ERE$ to return to co!plainant Qeld :te!!erikthe total a!ount o& B+.2 !illion with interest at 12 per annu! &ro! the date o& pro!ulgation o& this resolution until &ull pay!ent. 8espondent is&urther $IREC+E$ to sub!it to the >ourt proo& o& pay!ent o& the a!ount within tendays &ro! pay!ent.

The Cational 3ureau o& Investigation ;C3I= is OR$ERE$ to locate tty. #asand "le the appropriate cri!inal charges against hi!. The C3I is&urther $IREC+E$ to regularly report the progress o& its action in this case to this>ourt through the 3ar >on"dant.

et copies o& this resolution be &urnished the 3ar >on"dant who shall

&orthwith record it in the personal "le o& respondent, the >ourt d!inistrator whoshall in&or! all courts o& the Bhilippines, the Integrated 3ar o& the Bhilippines whichshall disse!inate copies to all its chapters and !e!bers and all ad!inistrative anduasiudicial agencies o& the 8epublic o& the Bhilippines. SO OR$ERE$.

RE:NA+O S. *NO>hie& Dustice

BAR MA++ER No. 81. '!"!r 7, 1998

IN RE> *E+I+ION +O +AFE +&E LA:ERS OA+& B: AR+&R M. CE%AS, 'R.

R E S O L + I O N

(RANCISCO, J.>

Betitioner rthur #. >uevas, Dr., recently passed the 1996 3ar </a!inations.E1 is oathtaking was held in abeyance in view o& the >ourts resolution dated

ugust 2%, 1996 which per!itted hi! to take the 3ar </a!inations subect to the

condition that should ;he= pass the sa!e, ;he= shall not be allowed to take the

06

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lawyers oath pending approval o& the >ourt / / / due to his previous conviction &or

8eckless I!prudence 8esulting In o!icide. The conviction ste!!ed &ro!

petitioners participation in the initiation rites o& the <O TI)CI: F8T<8CIT:, a

&raternity in the :C 3<* >)<< )F -, so!eti!e in :epte!ber 1991, where

8aul I. >a!aligan, a neophyte, died as a result o& the personal violence inNicted

upon hi!. Therea&ter, petitioner applied &or and was granted probation. )n #ay 16,199$, he was discharged &ro! probation and his case considered closed and

ter!inated.

In this petition , received by the >ourt on #ay $, 199%, petitioner prays that he

be allowed to take his lawyers oath at the >ourts !ost convenient ti!e E2 attaching

thereto the )rder dated #ay 16, 199$ o& the 8egional Trial >ourt, 3ranch 1 o&

ntiue discharging hi! &ro! his probation, and certi"cations attesting to his

righteous, peace&ul and law abiding character issued by5 ;a= the #ayor o& the

#unicipality o& a!tic, ntiueG ;b= the )@cerin>harge o& a!tic Bolice :tationG

;c= the :angguniang Qabataan o& Bob. III, a!tic, through its chair!an and o@cersG

;d= a !e!ber o& the I3B Iloilo >hapterG ;e= the Barish Briest and Aicar eneral o& :t.

Doseph >athedral, :an Dose, ntiue, and ;&= the Bresident o& the Barish Bastoral

>ouncil, Barish o& :ta. #onica, a!tic, ntiue. )n Duly 1$, 199%, the >ourt, be&ore

acting on petitioners application, resolved to reuire tty. ilbert *. >a!aligan,

&ather o& the deceased ha4ing victi! 8aul I. >a!aligan, to co!!ent thereon. In

co!pliance with the >ourts directive, tty. ilbert *. >a!aligan "led his co!!ent

which states as &ollows5

1 e &ully appreciates the benign concern given by this on. >ourt in allowing hi!

to co!!ent to the pending petition o& rthur #. >uevas to take the lawyers oath,

and hereby e/presses his genuine gratitude to such gesture.

2 e con&or!s co!pletely to the observation o& the on. >ourt in its resolution

dated #arch 19, 199% in 3ar #atter Co.%12 that the inNiction o& severe physical

inuries which appro/i!ately led to the death o& the un&ortunate 8aul >a!aligan

was deliberate ;rather than !erely accidental or inadvertent= thus, indicating

serious character Naws on the part o& those who inNicted such inuries. This is

consistent with his stand at the outset o& the proceedings o& the cri!inal case

against the petitioner and his code&endants that they are liable not only &or the

cri!e o& ho!icide but !urder, since they took advantage o& the neophytes helpless

and de&enseless condition when they were beaten and kicked to death like a uselessstray dog, suggesting the presence o& abuse o& con"dence, taking advantage o&

superior strength and treachery ;Beople vs. agoco, $( Bhil. $2+=.

0 e, however, has consented to the accusedstudents plea o& guilty to the lesser

o?ense o& reckless i!prudence resulting to the ho!icide, including the petitioner,

out o& pity to their !others and a pregnant wi&e o& the accused who went together

at his house in ucena >ity, literally kneeling, crying and begging &or &orgiveness &or

0%





their sons, on a >hrist!as day in 1991 and on #aundy Thursday in 1992, during

which they reported that the &ather o& one o& the accused died o& heart attack upon

learning o& his sons involve!ent in the case.

+ s a >hristian, he has &orgiven the petitioner and his code&endants in the cri!inal

case &or the death o& his son. 3ut as a loving &ather, who lost a son in who! he hasa high hope to beco!e a good lawyer to succeed hi!, he still &eels the pain o& his

unti!ely de!ise, and the stig!a o& the grueso!e !anner o& taking his li&e. This he

cannot &orget.

$ e is not, right now, in a position to say whether petitioner, since then has

beco!e !orally "t &or ad!ission to the noble pro&ession o& the law. e politely

sub!its this !atter to the sound and udicious discretion o& the on. >ourt. E0

t the outset, the >ourt shares the senti!ent o& tty. ilbert *. >a!aligan and

co!!iserates with the unti!ely death o& his son. Conetheless, tty. ilbert *.

>a!aligan ad!its that Ehe is not, right now, in a position to say whether petitioner

since then has beco!e !orally "t / / / and sub!its petitioners plea to be ad!itted

to the noble pro&ession o& law to the sound and udicious discretion o& the >ourt.

The petition be&ore the >ourt reuires the balancing o& the reasons &or

disallowing petitioners ad!ission to the noble pro&ession o& law. is deliberate

participation in the senseless beatings over a helpless neophyte which resulted to

the latters unti!ely de!ise indicates absence o& that !oral "tness reuired &or

ad!ission to the bar. nd as the practice o& law is a privilege e/tended only to the

&ew who possess the high standards o& intellectual and !oral uali"cations the

>ourt is duty bound to prevent the entry o& undeserving aspirants, as well as toe/clude those who have been ad!itted but have beco!e a disgrace to the

pro&ession. The >ourt, nonetheless, is willing to give petitioner a chance in the sa!e

!anner that it recently allowed l >aparros rgosino, petitioners coaccused below,

to take the lawyers oath.E+

Betitioner rthur #. >uevas, Dr.s discharge &ro! probation without any in&raction

o& the attendant conditions there&or and the various certi"cations attesting to his

righteous, peace&ul and civicoriented character prove that he has taken decisive

steps to purge hi!sel& o& his de"ciency in !oral character and atone &or the

un&ortunate death o& 8aul I. >a!aligan. The >ourt is prepared to give hi! the

bene"t o& the doubt, taking udicial notice o& the general tendency o& the youth to

be rash, te!erarious and uncalculating.E$ et it be stressed to herein petitioner that

the lawyers oath is not a !ere &or!ality recited &or a &ew !inutes in the glare o&

Nashing ca!eras and be&ore the presence o& select witnesses. Betitioner is e/horted

to conduct hi!sel& beyond reproach at all ti!es and to live strictly according to his

oath and the >ode o& Bro&essional 8esponsibility. nd, to paraphrase #r. Dustice

Badillas co!!ent in the sister case o& Re: 'etition of )l )rgosino "o "a#e "he

0(









Lawyers ;ath, 3ar #atter Co. %12, #arch 19, 199%, Ethe >ourt sincerely hopes that

#r. >uevas, Dr., will continue with the assistance he has been giving to his

co!!unity. s a lawyer he will now be in a better position to render legal and other

services to the !ore un&ortunate !e!bers o& society.E6

>>)8*ICM, the >ourt hereby resolved to allow petitioner rthur #. >uevas, Dr., to take the lawyers oath and to sign the 8oll o& ttorneys on a date to be set by

the >ourt, subect to the pay!ent o& appropriate &ees. et this resolution be

attached to petitioners personal records in the )@ce o& the 3ar >on"dant.

SO OR$ERE$.

&arvasa, $.%., Regalado, +avide, %r., Romero, Bellosillo, Melo, 'uno, 3itug,

9apunan, Mendo2a, 'anganiban, and Martine2, %%., concur.

A.C. No. 797. October 4,

ROSARA *. COR$ON, complainant, vs. 'ESS BALICAN+A, respondent.

R E S O L + I O N

PER CURIAM>

)n ugust 21, 19($, herein co!plainant 8osaura >ordon "led with this >ourt a

co!plaint &or disbar!ent, docketed as d!inistrative >ase Co. 2%9%, against tty. Desus 3alicanta.&ter respondents co!!ent to the co!plaint and co!plainants reply

thereto, this >ourt, on #arch 29, 199$ re&erred the !atter to the Integrated 3ar o&

the Bhilippines ;I3B, &or brevity= &or investigation, report and reco!!endation within

9 days &ro! notice. >o!!issioner eorge 3riones o& the I3B >o!!ission on 3ar

*iscipline was initially tasked to investigate the case.>o!!issioner 3riones was

later on replaced by >o!!issioner 8enato >unanan. >o!plainant "led a

09





supple!ental co!plaint which was duly ad!itted and, as agreed upon, the parties

"led their respective position papers.

3ased on her co!plaint, supple!ental co!plaint, reply and position paper, the

co!plainant alleged the &ollowing &acts5

-hen her husband Feli/berto >. Daldon died, herein co!plainant 8osaura >ordon

and her daughter 8ose!arie inherited the properties le&t by the said decedent. ll in

all, co!plainant and her daughter inherited 21 parcels o& land located in

Pa!boanga >ity. The lawyer who helped her settle the estate o& her late husband

was respondent Desus 3alicanta.

:o!eti!e in the early part o& 19(1, respondent enticed co!plainant and her

daughter to organi4e a corporation that would develop the said real properties into

a highscale co!!ercial co!ple/ with a beauti&ul penthouse &or

co!plainant. 8elying on these apparently sincere proposals, co!plainant and her

daughter assigned 19 parcels o& land to 8osaura <nterprises, Incorporated, a newly

&or!ed and duly registered corporation in which they assu!ed !aority

ownership. The subect parcels o& land were then registered in the na!e o& the

corporation.

Therea&ter, respondent singlehandedly ran the a?airs o& the corporation in his

capacity as >hair!an o& the 3oard, Bresident, eneral #anager and Treasurer. The

respondent also !ade co!plainant sign a docu!ent which turned out to be a voting

trust agree!ent. 8espondent likewise succeeded in !aking co!plainant sign a

special power o& attorney to sell and !ortgage so!e o& the parcels o& land she

inherited &ro! her deceased husband. :he later discovered that respondenttrans&erred the titles o& the properties to a certain Tion :uy )ng who beca!e the

new registered owner thereo&. 8espondent never accounted &or the proceeds o& said

trans&ers.

In 19(1, respondent, using a spurious board resolution, contracted a loan &ro!

the and 3ank o& the Bhilippines ;3B, &or brevity= in the a!ount o& Two #illion Two

undred Twenty Besos ;B2,22,= using as collateral 9 o& the real properties that

the co!plainant and her daughter contributed to the corporation. The respondent

ostensibly intended to use the !oney to construct the 3aliwasan >o!!ercial

>enter ;3>>, &or brevity=. >o!plainant later on &ound out that the structure was

!ade o& poor !aterials such as sawali, coco lu!ber and ba!boo which could not

have cost the corporation anything close to the a!ount o& the loan secured.

For &our years &ro! the ti!e the debt was contracted, respondent &ailed to pay

even a single install!ent. s a result, the 3B, in a letter dated #ay 22, 19($,

in&or!ed respondent that the past due a!orti4ations and interest had already

accu!ulated to :even undred Twentynine Thousand Five undred Three Besos

+



and Twenty"ve >entavos ;B%29,$0.2$=. The 3B !ade a de!and on respondent

&or pay!ent &or the tenth ti!e. #eanwhile, when the 3>> co!!enced its

operations, respondent started to earn revenues &ro! the rentals o& 3>>s

tenants.)n )ctober 2(, 19(%, the 3B &oreclosed on the 9 !ortgaged properties due

to nonpay!ent o& the loan.

8espondent did not e/ert any e?ort to redee! the &oreclosed properties. -orse,

he sold the corporations right to redee! the !ortgaged properties to a certain adi

#ah!ud Da!!ang through a &ake board resolution dated Danuary 1+, 19(9 which

clothed hi!sel& with the authority to do so. >o!plainant and her daughter, the

!aority stockholders, were never in&or!ed o& the alleged !eeting held on that

date. gain, respondent never accounted &or the proceeds o& the sale o& the right to

redee!. 8espondent also sold to Da!!ang a parcel o& land belonging to

co!plainant and her daughter which was contiguous to the &oreclosed properties

and evidenced by Trans&er >erti"cate o& Title Co. 62(%. e never accounted &or the

proceeds o& the sale.

:o!eti!e in 19(0, co!plainants daughter, 8ose!arie, discovered that their

ancestral ho!e had been de!olished and that her !other, herein co!plainant, was

being detained in a s!all nipa shack in a place called >ulianan. Through the help o&

tty. inda i!, 8ose!arie was able to locate her !other. 8ose!arie later learned

that respondent took co!plainant away &ro! her house on the prete/t that said

ancestral ho!e was going to be re!odeled and painted. 3ut respondent de!olished

the ancestral ho!e and sold the lot to Tion :uy )ng, using another spurious board

resolution designated as 3oard 8esolution Co. 1, series o& 1992. The resolution

contained the !inutes o& an alleged organi4ational !eeting o& the directors o& the

corporation and was signed by le/ander -ee, ngel Fernando, <rwin Fernando andabriel :olivar. >o!plainant and her daughter did not know how these persons

beca!e stockholders and directors o& the corporation. 8espondent again did not

account &or the proceeds o& the sale.

>o!plainant and her daughter !ade several de!ands on respondent &or the

delivery o& the real properties they allegedly assigned to the corporation, &or an

accounting o& the proceeds o& the 3B loan and as well as the properties sold, and

&or the rentals earned by 3>>. 3ut the de!ands re!ained unheeded. ence,

co!plainant and her daughter, in a letter dated Dune +, 19($, ter!inated the

services o& respondent as their lawyer and repeated their de!ands &or accountingand turnover o& the corporate &unds, and the return o& the 19 titles that respondent

trans&erred to the corporation. They also threatened hi! with legal action in a letter

dated ugust 0, 19($.

:oon a&ter, co!plainant &ound out &ro! the :ecurities and </change

>o!!ission ;:<>, &or brevity= that 8osaura <nterprises, Inc., due to respondents

re&usal and neglect, &ailed to sub!it the corporations annual "nancial state!ents

+1



&or 19(1, 19(2 and 19(0G :<> eneral In&or!ation :heets &or 19(2, 19(0 and 19(+G

#inutes o& nnual #eetings &or 19(2, 19(0 and 19(+G and #inutes o& nnual

#eetings o& *irectors &or 19(2, 19(0 and 19(+.

>o!plainant also discovered that respondent collected rental pay!ents &ro!

the tenants o& 3>> and issued handwritten receipts which he signed, not as ano@cer o& the corporation but as the attorneyatlaw o& co!plainant. 8espondent

also used the tennis court o& 3>> to dry his palay and did not keep the buildings in a

satis&actory state, so !uch so that the divisions were losing plywood and other

!aterials to thieves.

>o!plainant likewise accused respondent o& circulating ru!ors a!ong her

&riends and relatives that she had beco!e insane to prevent the! &ro! believing

whatever co!plainant said.ccording to co!plainant, respondent proposed that she

legally separate &ro! her present husband so that the latter would not inherit &ro!

her and that respondent be adopted as her son.

For his de&ense, respondent, in his co!!ent and position paper, denied

e!ploying deceit and !achination in convincing co!plainant and her daughter to

assign their real properties to the corporationG that they &reely and voluntary

e/ecuted the deeds o& assign!ent and the voting trust agree!ent that they signedG

that he did not singlehandedly !anage the corporation as evidenced by

certi"cations o& the o@cers and directors o& the corporationG that he did not use

spurious board resolutions authori4ing hi! to contract a loan or sell the properties

assigned by the co!plainant and her daughterG that co!plainant and her daughter

should be the ones who should render an accounting o& the records and revenues

inas!uch as, since 19(+ up to the present, the partti!e corporate bookkeeper,with the connivance o& the co!plainant and her daughter, had custody o& the

corporate recordsG that co!plainant and her daughter sabotaged the operation o&

3>> when they illegally took control o& it in 19(6G that he never pocketed any o& the

proceeds o& the properties contributed by the co!plainant and her daughterG that

the de!olition o& the ancestral ho!e &ollowed legal proceduresG that co!plainant

was never detained in >ulianan but she &reely and voluntarily lived with the &a!ily

o& B0 Doel >onstantino as evidenced by co!plainants own letter denying she was

kidnappedG and that the instant disbar!ent case should be dis!issed &or being

pre!ature, considering the pendency o& cases be&ore the :<> and the 8egional Trial

>ourt o& Pa!boanga involving hi! and co!plainant.

3ased on the pleadings and position papers sub!itted by the parties,

>o!!issioner 8enato >unanan, in his report E1 dated Duly 1, 1999, reco!!ended

respondents disbar!ent based on the &ollowing "ndings5

+2

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. The co!plainant, 8osaura Daldon>ordon and her daughter, 8ose!arie were

stockholders o& a corporation, together with respondent, na!ed 8osaura

<nterprises, Inc.

Ber the rticles o& Incorporation !arked as nne/ o& >o!plainants Bosition Baper,

co!plainants subscription consists o& $$ o& the outstanding capital stock while herdaughters consists o& 1(, giving the! a total o& %0. 8espondents holdings

consist o& 2+ while three other incorporators, 8osauro . lvare4, Aicente T. #aalac

and *arhan :. raciano each held 1 o& the capital stock o& the corporation.

3. )n pril $, 19(1, co!plainant and her daughter 8ose!arie Daldon e/ecuted two

*eeds o& Trans&er and ssign!ent conveying and trans&erring to the corporation 19

parcels o& land in e/change &or shares o& stock in the corporation.

/// /// ///

>. 3oth *eeds o& ssign!ent particularly page 0 thereo& indicate that respondent

accepted said assign!ent o& properties and titles in behal& o& the corporation as

Treasurer. The deeds were signed on pril $, 19(1.

/// /// ///

Together, there&ore, co!plainant and her daughter owned 1,%11 shares o& the 1,%$

shares co!prising the authori4ed capital stock o& the corporation o& 9% thereo&.

Co increase in capitali4ation was applied &or by the corporation.

F. 8espondent clai!s in his >o!!ent, his nswer and his Bosition Baper that on

pril +, 19(1 he was elected as >hair!an and *irector and on pril $, 19(1 he was

elected Bresident o& the corporation.8espondents own nne/es !arked as and

1 o& his >o!!ent show that on pril +, 19(1 he was not only elected as >hair!an

and *irector as he clai!s but as *irector, 3oard >hair!an and Bresident. The

purported !inutes was only signed by respondent and an acting :ecretary by the

na!e o& Aicente #aalac.

:aid nne/ does not show who was elected Treasurer.

8espondents nne/ and 1 shows that in the alleged organi4ational !eeting o&

the directors on pril $, 19(1 a certain Farnacio 3ucoy was elected

Treasurer. 3ucoys na!e does not appear as an incorporator nor a stockholder

anywhere in the docu!ents sub!itted.

The purported !inutes o& the organi4ational !eeting o& the directors was signed

only by respondent 3alicanta and a :ecretary na!ed Aerisi!o #artin.

+0



. :ince respondent was elected as *irector, >hair!an and Bresident on pril +,

19(1 as respondents own nne/es to 1 would show, then co!plainants clai!

that respondent was likewise acting as Treasurer o& two corporations bear truth and

credence as respondent signed and accepted the titles to 19 parcels o& land ceded

by the co!plainant and her daughter, as Treasurer on pril $, 19(1 a&ter he was

already purportedly elected as >hair!an, Bresident and *irector.

. 8espondent !isleads the >o!!ission into believing that all the directors signed

the !inutes !arked as </hibit to 1 by stating that the sa!e was duly signed by

all the 3oard o& *irectors when the docu!ent itsel& shows that only he and one

Aerisi!o #artin signed the sa!e.

e also clai!s that all the stockholders signed the !inutes o& organi4ational

!eeting !arked as nne/es and 1 o& his >o!!ent yet the sa!e shows that

only the acting >hair!an and acting :ecretary signed.

I. 8espondent clai!s that the 3oard or its representative was authori4ed by the

stockholders co!prising 2L0 o& the outstanding capital stock, as reuired by law, to

!ortgage the parcels o& land belonging to the corporation, which were all assigned

to the corporation by co!plainant and her daughter, by virtue o& nne/ I and I15

attached to his >o!!ent.

The subect attach!ent however reveals that only the &ollowing persons signed

their con&or!ity to the said resolution5 respondent 3alicanta who owned 19 shares,

Aicente #aalac ;1 share=, *aihan raciano ;1 share=.

>o!plainants who collectively held a total o& 1,%11 shares out o& the 1,%$ outstanding capital stock o& the corporation were not represented in the

purported stockholders !eeting authori4ing the !ortgage o& the subect properties.

The 2L0 vote reuired by law was there&ore not co!plied with yet respondent

proceeded to !ortgage the subect 9 parcels o& land by the corporation.

D. 8espondent &urther relies on nne/ D o& his >o!!ent, purportedly the !inutes o&

a special !eeting o& the 3oard o& *irectors authori4ing hi! to obtain a loan and

!ortgage the properties o& the corporation dated ugust 29, 19(1. This clai! is

baseless. The reuired rati"cation o& 2L0 by the stockholders o& records was not

!et. gain, respondent atte!pts to !islead the >o!!ission and >ourt.

Q. Further, the constitution o& the 3oard is dubious. The alleged !inutes o& the

organi4ational !eeting o& the stockholders electing the !e!bers o& the 3oard, have

not been duly signed by the stockholders as shown in respondents anne/ which

was purportedly the organi4ational !eeting o& the stockholders.

++



. lso, nne/ D o& respondents >o!!ent which purportedly authori4ed hi! to

obtain a loan and to !ortgage the 9 parcels o& land was only signed by hi!sel& and

a secretary.

#. In said nne/ 'D' o& respondents >o!!ent he stated that co!plainant 8osaura

>ordon was on leave by virtue o& a voting trust agree!ent allegedly e/ecuted byco!plainant in his &avor covering all her shares o& stock. The clai! is baseless. The

voting trust re&erred to by respondent ;anne/ * o& his >o!!ent=, even i& it were

assu!ed to be valid, covered only 266 shares o& co!plainants yet she owned a

total o& 1,09 shares a&ter she and her daughter ceded in &avor o& the corporation

19 parcels o& land.

3eing a &or!er lawyer to co!plainant, respondent should have ensured that her

interest was sa&eguarded. Met, co!plainant was apparently and deliberately le&t our

;sic= on the prete/t that, she had e/ecuted a voting trust agree!ent in &avor o&

respondent.

It is suspicious that co!plainant was !ade to sign a voting trust agree!ent on 21

ugust 19(1 and i!!ediately therea&ter, the resolutions authori4ing respondent to

obtain a loan and to !ortgage the 9 parcels o& land were passed and approved.

C. It is also highly irregular &or respondent who is a lawyer, to allow a situation to

happen where, with the e/clusion o& co!plainant as director the result was that

there re!ained only + !e!bers o& the 3oard,.

O. Re0@o"#e"t0 o=" @e!#/"0 0b?/tte# to t)e Co??/00/o" co"tr!#/ct

e!c) ot)er.

1. For instance, while in his >o!!ent respondent *<CI<: that he e!ployed deceit

and !achination in convincing the co!plainant and her daughter to sign the

articles o& incorporation o& 8osaura <nterprises and in ceding to the corporation 19

parcels o& land in Pa!boanga >ity, because they &reely, intelligently and voluntarily

signed the sa!e, yet, in his Bosition Baper, respondent took another stance.

In paragraphs 1.1 and 1.2 o& his Bosition Baper which was sub!itted 12 years later,

respondent clai!ed that it was actually the idea o& tty. 8osaura . lvare4 that a

corporation be put up to incorporate the estate o& the late Feli/berto *. Daldon.

2. ikewise, respondent clai!ed that co!plainant and her daughter were not

directors, hence they were not noti"ed o& !eetings, in paragraph 26 ;c= o& his

>o!!ent he bla!ed the other stockholders and directors &or the corporations

inability to co!ply with the and 3anks de!ands saying that they have consistently

&ailed since 19(2 to convene ;1.= &or the annual stockholders !eetings and ;i.i= &or

the !onthly board !eeting.

+$



is own pleadings clai! that he had been the >hair!anLBresident since 19(1 to the

present. I& ;sic= so, it was his duty to convene the stockholders and the directors &or

!eetings.

8espondent appeared able to convene the stockholders and directors when he

needed to !ake a loan o& p2.2 !illionG when he sold the corporations right o& rede!ption over the &oreclosed properties o& the corporation to Da!!ang, when he

sold one parcel o& land covered by T>T 62,(% to Da!!ang in addition to the 9

parcels o& land which were &oreclosed, and when he sold the co!plainants ancestral

ho!e covered by T>T Co. %2,+.

It is thus strange why respondent clai!s that the corporation could not do anything

to save the corporations properties &ro! being &oreclosed because the stockholders

and directors did not convene.

This assertion o& respondent is clearly evident o& dishonest, deceit&ul and i!!oral

conduct especially because, in all his acts constituting conveyances o& corporate

property, respondent used !inutes o& stockholders and directors !eetings signed

only by hi! and a secretary or signed by hi! and persons who were not

incorporators !uch less stockholders.

It is worthy o& note that in respondents </hibits 1$, 16, 1% and 1( o& his position

paper, there were % new stockholders and co!plainant appeared to have only 266

shares to her na!e while her daughter 8ose!arie had no shares at all. 8espondent

did not present any proo& o& conveyance o& shares by co!plainant and her

daughter.

It is &urther worth noting that co!plainants voting trust ;anne/ * o& respondents

>o!!ent= where she allegedly entrusted 266 shares to respondent on ugust 21,

19(1 had only a validity o& $ years. Thus, she should have had her entire holdings o&

1,2(0 shares back in her na!e in ugust 19(6.

8espondents purported !inutes o& stockholders !eeting ;</hs. 1$ and 1%= do not

reNect this.

There was no e/planation whatsoever &ro! respondent on how co!plainant and her

daughter lost their 9% control holding in the corporation.

0. s a &urther contradiction in respondents pleadings, we note that in paragraph

2.%.> o& his >o!!ent he said that only recently, this year, 19($, the co!plainant

and her a&orena!ed daughter e/a!ined said volu!inous supporting

receiptsLdocu!ents which had previously been e/a!ined by the and 3ank &or loan

releases, during which occasion respondent suggested to the! that the corporation

will have to hire a &ullti!e bookkeeper to put in order said volu!inous supporting

+6



receiptsLdocu!ents, to which they adversely reacted due to lack o& corporate

!oney to pay &or said bookkeeper. 3ut in respondents Bosition Baper par. 6.0 he

stated that5

A"=!, /t /0 "ot t)e re0@o"#e"t bt r!t)er t)e co?@!/"!"t =)o 0)o#

re"#er ! #et!/e# !cco"t/" to t)e cor@or!t/o" o t)e cor@or!te recor#0!0 =e !0 cor@or!te ree"e0H/"co?e @rec/0e bec!0e 0/"ce 1994 to t)e

@re0e"t>

2!. +)e cor@or!te @!rt-t/?e boo;-;ee@er E#/berto Be"e#/cto, =/t) t)e

/"#/0@e"0!be co""/!"ce !"# /"0t/!t/o" o t)e co?@!/"!"t !"# )er

#!)ter, !?o" ot)er0, )!0 c0to# o t)e cor@or!te recor#0,

+. In other contradictory stance, respondent clai!s in par. %.0 o& his position paper

that co!plainant and her daughter sabotaged the 3>> operations o& the corporation

by illegally taking over actual control and supervision thereo& so!eti!e in 19(6,

///

Met respondents own e/hibits in his position paper particularly </hibit 1$ and 16

where the subect o& the &oreclosed properties o& the corporation co!prising the

3aliwasan >o!!ercial >enter ;3>>= was taken up, co!plainant and her daughter

were not even present nor were they the subect o& the discussion, belying

respondents clai! that the co!plainant and her daughter illegally took actual

control o& 3>>.

$. )n the !atter o& the receipts issued by respondent evidencing pay!ent to hi! o&

rentals by lessees o& the corporation, attached to the co!plaint as nne/es to 1%, respondent clai!s that the receipts are te!porary in nature and that

subseuently regular corporate receipts were issued. )n their &ace however the

receipts clearly appear to be o@cial receipts, printed and nu!bered duly signed by

the respondent bearing his printed na!e.

It is di@cult to believe that a lawyer o& respondent stature would issue o@cial

receipts to lessees i& he only !eant to issue te!porary ones.

6. -ith regard to respondents clai! that the co!plainant consented to the sale o&

her ancestral ho!e, covered by T>T Co. T%2,+ to one Tion :uy )ng &or which he

attached as </hibit 22 to his Bosition Baper the !inutes o& an annual !eeting o& the

stockholders, it behooves this >o!!ission why co!plainants signature had to be

acco!panied by her thu!b !ark. Further!ore, co!plainants signature appears

unstable and shaky. This )@ce is thus persuaded to believe co!plainants allegation

in paragraph 0b o& her position paper that since Se@te?ber 199 @ to M!rc)

1993 0)e =!0 be/" #et!/"e# b o"e *O 20/c 'oe Co"0t!"t/"o !"# )/0

=/e "#er /"0trct/o"0 ro? re0@o"#e"t B!/c!"t!.

+%



This conclusion is supported by a letter &ro! respondent dated #arch 1990, nne/

o& co!plainants position paper, where respondent ordered Bolice )@cer

>onstantino to allow tty. inda i! and 8ose!arie Daldon to talk to Tita 8osing.

The co!plainants thu!b !ark together with her visibly unstable shaky signature

lends credence to her clai! that she was detained in the &ar Nung barrio o& >uliananunder instructions o& respondent while her ancestral ho!e was de!olished and the

lot sold to one Tion :uy )ng.

It appears that respondent &elt co!pelled to overensure co!plainants consent by

getting her to a@/ her thu!b !ark in addition to her signature.

%. 8espondent likewise denies that he also acted as >orporate :ecretary in addition

to being the >hair!an, Bresident and Treasurer o& the corporation. Met, respondent

sub!itted to this co!!ission docu!ents which are supported to be in the

possession o& the >orporate :ecretary such as the stock and trans&er book and

!inutes o& !eetings.

The &oregoing "ndings o& this >o!!ission are virtual s!oking guns that prove on no

uncertain ter!s that respondent, who was the legal counsel o& co!plainant in the

latter part o& the settle!ent o& the estate o& her deceased husband, co!!itted

unlaw&ul, i!!oral and deceit&ul conduct proscribed by 8ule 1.1 o& the code o&

pro&essional responsibility.

ikewise, respondent clearly co!!itted a violation o& >anon 1$ o& the sa!e code

which provides that lawyer should observe candor &airness and loyalty in all his

dealings and transactions with his client.

8espondents acts gravely di!inish the publics respect &or the integrity o& the

pro&ession o& law &or which this >o!!ission reco!!ends that he be !eted the

penalty o& disbar!ent.

The pendency o& the cases at the :<> and the 8egional Trial >ourt o& Pa!boanga

"led by co!plainant against respondent does not preclude a deter!ination o&

respondents culpability as a lawyer.

This >o!!ission cannot &urther delay the resolution o& this co!plaint "led in 19($

by co!plainant, and old widow who deserves to "nd hope and recover her

con"dence in the udicial syste!.

The "ndings o& this o@ce, predo!inantly based on docu!ents adduced by both

parties lead to only one rather unpalatable conclusion. That respondent tty. Desus F.

3alicanta, in his pro&essional relations with herein co!plainant did in &act e!ploy

unlaw&ul, dishonest, and i!!oral conduct proscribed in no uncertain ter!s by 8ule

+(



1.1 o& the >ode o& Bro&essional 8esponsibility. In addition, respondents actions

clearly violated >anon 1$ to 16 o& the sa!e >ode.

It is there&ore our unpleasant duty to reco!!end that respondent, having

co!!itted acts in violation o& the >anons o& Bro&essional 8esponsibility, thereby

causing a great disservice to the pro&ession, be !eted the ulti!ate sanction o& disbar!ent.E2

)n :epte!ber 0, 1999, while >o!!issioner >unanans reco!!endation &or

respondents disbar!ent was pending review be&ore </ecutive AiceBresident and

Corthern u4on overnor Teo"lo Bilando, respondent "led a !otion reuesting &or a

&ullblown investigation and &or invalidation o& the entire proceedings andLor

re!edial action under :ection 11, 8ule 1093, 8evised 8ules o& >ourt, alleging that

he had evidence that >o!!issioner >unanans report was dra&ted by the lawyers o&

co!plainant, ttys. ntonio >ope and 8ita inda Di!eno. e presented two unsigned

anony!ous letters allegedly co!ing &ro! a disgruntled e!ployee o& ttys. >ope

and Di!eno. e clai!ed to have received these letters in his !ailbo/.E0

8espondents !otion alleging that ttys. ntonio >ope and 8ita inda Di!eno

dra&ted >o!!issioner >unanans report was acco!panied by a co!plaint praying

&or the disbar!ent o& said lawyers including >o!!issioner >unanan. The co!plaint

was docketed as >3* >ase Co. 996$(. &ter ttys. >ope and Di!eno and

>o!!issioner >unanan "led their answers, a hearing was conducted by the

Investigating >o!!ittee o& the I3B 3oard o& overnors.

)n #ay 26, 21, the I3B 3oard o& overnors issued a resolutionE+ dis!issing

&or lack o& !erit the co!plaint &or disbar!ent against ttys. >ope and Di!eno and>o!!issioner >unanan. nd in d!. >ase Co. 2%9%, the 3oard adopted and

approved the report and reco!!endation o& >o!!issioner >unanan, and !eted

against herein respondent 3alicanta the penalty o& suspension &ro! the practice o&

law &or $ years &or co!!ission o& acts o& !isconduct and disloyalty by taking undue

and un&air advantage o& his legal knowledge as a lawyer to gain !aterial bene"t &or

hi!sel& at the e/pense o& co!plainant 8osaura B. Daldon>ordon and caused serious

da!age to the co!plainant.E$

To support its decision, the 3oard uncovered respondents &raudulent acts in the

very sa!e docu!ents he presented to e/onerate hi!sel&. It also took note o&

respondents contradictory and irreconcilable state!ents in the pleadings and

position papers he sub!itted. owever, it regarded the penalty o& disbar!ent as

too severe &or respondents !isdeeds, considering that the sa!e were his "rst

o?ense.E6

Bursuant to :ection 12 ;b=, 8ule 1093 o& the 8ules o& >ourt, E% the said resolution

in d!inistrative >ase Co. 2%9% i!posing the penalty o& suspension &or $ years on

+9















respondent was auto!atically elevated to this >ourt &or "nal action. )n the other

hand, the dis!issal o& the co!plaint &or disbar!ent against ttys. >ope and Di!eno

and >o!!issioner >unanan, docketed as >3* >ase Co. 996$(, beca!e "nal in the

absence o& any petition &or review.

This >ourt con"r!s the duly supported "ndings o& the I3B 3oard thatrespondent co!!itted conde!nable acts o& deceit against his client. The &raudulent

acts he carried out against his client &ollowed a well thought o& plan to

!isappropriate the corporate properties and &unds entrusted to hi!. t the very

outset, he e!barked on his devious sche!e by !aking hi!sel& the Bresident,

>hair!an o& the 3oard, *irector and Treasurer o& the corporation, although he knew

he was prohibited &ro! assu!ing the position o& Bresident and Treasurer at the

sa!e ti!e.E(s Treasurer, he accepted in behal& o& the corporation the 19 titles that

co!plainant and her daughter coowned. The other treasurer appointed, Farnacio

3ucoy, did not appear to be a stockholder or director in the corporate records. The

!inutes o& the !eetings supposedly electing hi! and 3ucoy as o@cers o& the

corporation actually bore the signatures o& respondent and the secretary only,

contrary to his clai! that they were signed by the directors and stockholders.

e likewise !isled the I3B investigating co!!ission in clai!ing that the

!ortgage o& 9 o& the properties o& the corporation previously belonging to

co!plainant and her daughter was rati"ed by the stockholders owning twothirds or

6% o& the outstanding capital stock when in &act only three stockholders owning

111 out o& 1,%$ outstanding shares or 6.0 assented thereto. The alleged

authori4ation granting hi! the power to contract the 3B loan &or Two #illion Two

undred Twenty Besos ;B2,22,= was also not approved by the reuired

!ini!u! o& twothirds o& the outstanding capital stock despite respondents clai! tothe contrary. In all these transactions, co!plainant and her daughter who both

owned 1,%11 out o& the 1,%$ outstanding shares o& the corporation or 9%.% never

had any participation. Ceither were they in&or!ed thereo&.

>learly, there was no uoru! &or a valid !eeting &or the discussion and

approval o& these transactions.

8espondent cannot take re&uge in the contested voting trust agree!ent

supposedly e/ecuted by co!plainant and her daughter &or the reason that it

authori4ed respondent to represent co!plainant &or only 266 shares.

side &ro! the dishonest transactions he entered into under the cloak o& sha!

resolutions, he &ailed to e/plain several discrepancies in his version o& the &acts. -e

hereby reiterate so!e o& these state!ents noted by >o!!issioner >unanan in his

"ndings.

$





1irst, respondent bla!ed the directors and the stockholders who &ailed to

convene &or the reuired annual !eetings since 19(2. owever, respondent

appeared able to convene the stockholders and directors when he contracted the

3B debt, when he sold to Da!!ang the corporations right o& rede!ption over the

&oreclosed properties o& the corporation, when he sold one parcel o& land covered by

T>T Co. 62(% to Da!!ang, when he !ortgaged the 9 parcels o& land to 3B whichlater &oreclosed on said !ortgage, and when he sold the co!plainants ancestral

ho!e covered by T>T Co. %2+.

7econd, the &actual "ndings o& the investigating co!!ission, a@r!ed by the I3B

3oard, disclosed that co!plainant and her daughter own 1,%11 out o& 1,%$ shares

o& the outstanding capital stock o& the corporation, based on the rticles o&

Incorporation and deeds o& trans&er o& the properties. 3ut respondents evidence

showed that co!plainant had only 266 shares o& stock in the corporation while her

daughter had none, notwithstanding the &act that there was nothing to indicate that

co!plainant and her daughter ever conveyed their shares to others.

8espondent likewise did not e/plain why he did not return the certi"cates

representing the 266 shares a&ter the lapse o& $ years &ro! the ti!e the voting trust

certi"cate was e/ecuted in 19(1.E9

The records show that up to now, the co!plainant and her daughter own 9% o&

the outstanding shares but respondent never bothered to e/plain why they were

never asked to participate in or why they were never in&or!ed o& i!portant

corporate decisions.

"hird, respondent, in his co!!ent, alleged that due to the obection o& co!plainant and her daughter to his proposal to hire an accountant, the corporation

had no &or!al accounting o& its revenues and inco!e. owever, respondents

position paper !aintained that there was no accounting because the partti!e

bookkeeper o& the corporation connived with co!plainant and her daughter in

keeping the corporate records.

1ourth, respondents clai! that co!plainant and her daughter took control o&

the operations o& the corporation in 19(6 is belied by the &act that co!plainant and

her daughter were not even present in the alleged !eeting o& the board ;which took

place a&ter 19(6= to discuss the &oreclosure o& the !ortgaged properties. The truth

is that he never in&or!ed the! o& such !eeting and he never gave control o& the

corporation to the!.

1ifth, >o!!issioner >unanan &ound that5

$. on the !atter o& the receipts issued by respondent evidencing pay!ent to hi! o&

rentals by lessees o& the corporation, attached to the co!plaint as nne/es to

$1





1%, respondent clai!s that the receipts are te!porary in nature and that

subseuently regular corporate receipts were issued. )n their &ace however the

receipts clearly appear to be o@cial receipts, printed and nu!bered duly signed by

the respondent bearing his printed na!e.

It is di@cult to believe that a lawyer o& respondents stature would issue o@cialreceipts to lessees i& he only !eant to issue te!porary ones.E1

7ixth, respondent denies that he acted as >orporate :ecretary aside &ro! being

the >hair!an, Bresident and Treasurer o& the corporation. Met respondent sub!itted

to the investigating co!!ission docu!ents which were supposed to be in the

o@cial possession o& the >orporate :ecretary alone such as the stock and trans&er

book and !inutes o& !eetings.

7eventh, he alleged in his co!!ent that he was the one who proposed the

establish!ent o& the corporation that would invest the properties o& the

co!plainant but, in his position paper, he said that it was a certain tty. 8osauro

lvare4 who !ade the proposal to put up the corporation.

&ter a thorough review o& the records, we "nd that respondent co!!itted

grave and serious !isconduct that casts dishonor on the legal pro&ession. is

!isde!eanors reveal a deceit&ul sche!e to use the corporation as a !eans to

convert &or his own personal bene"t properties le&t to hi! in trust by co!plainant

and her daughter.

Cot even his deviousness could cover up the wrongdoings he co!!itted. The

docu!ents he thought could e/culpate hi! were the very sa!e docu!ents thatrevealed his i!!oral and sha!eless ways. These docu!ents were e/tre!ely

revealing in that they un!asked a !an who knew the law and abused it &or his

personal gain without any ual!s o& conscience. They painted an intricate web o&

lies, deceit and opportunis! beneath a care&ully cra&ted s!okescreen o& corporate

!aneuvers.

The >ode o& Bro&essional 8esponsibility !andates upon each lawyer, as his duty

to society, the obligation to obey the laws o& the land and pro!ote respect &or law

and legal processes. :peci"cally, he is &orbidden to engage in unlaw&ul, dishonest,

i!!oral or deceit&ul conduct.E11 I& the practice o& law is to re!ain an honorable

pro&ession and attain its basic ideal, those enrolled in its ranks should not only

!aster its tenets and principles but should also, in their lives, accord continuing

"delity to the!.E12 Thus, the reuire!ent o& good !oral character is o& !uch

greater i!port, as &ar as the general public is concerned, than the possession o&

legal learning.E10 awyers are e/pected to abide by the tenets o& !orality, not only

upon ad!ission to the 3ar but also throughout their legal career, in order to

!aintain ones good standing in that e/clusive and honored &raternity. E1+ ood !oral

$2













character is !ore than ust the absence o& bad character. :uch character e/presses

itsel& in the will to do the unpleasant thing i& it is right and the resolve not to do the

pleasant thing i& it is wrong.E1$ This !ust be so because vast interests are

co!!itted to his careG he is the recipient o& unbounded trust and con"denceG he

deals with his clients property, reputation, his li&e, his all.E16

Indeed, the words o& &or!er Bresiding Dustice o& the >ourt o& ppeals Bo!peyo

*ia4 cannot "nd a !ore relevant application than in this case5

There are !en in any society who are so sel&serving that they try to !ake law

serve their sel"sh ends. In this group o& !en, the !ost dangerous is the !an o& the

law who has no conscience. e has, in the arsenal o& his knowledge, the very tools

by which he can poison and disrupt society and bring it to an ignoble end. E1%

ood !oral standing is !ani&ested in the duty o& the lawyer to hold in trust all

!oneys and properties o& his client that !ay co!e into his possession. E1( e is

bound to account &or all !oney or property collected or received &or or &ro! the

client.E19 The relation between an attorney and his client is highly "duciary in

nature. Thus, lawyers are bound to pro!ptly account &or !oney or property

received by the! on behal& o& their clients and &ailure to do so constitutes

pro&essional !isconduct.E2

This >ourt holds that respondent cannot invoke the separate personality o& the

corporation to absolve hi! &ro! e/ercising these duties over the properties turned

over to hi! by co!plainant. e blatantly used the corporate veil to de&eat his

"duciary obligation to his client, the co!plainant. Toleration o& such &raudulent

conduct was never the reason &or the creation o& said corporate "ction.

The !assive &raud perpetrated by respondent on the co!plainant leaves us no

choice but to set aside the veil o& corporate entity. For purposes o& this action

there&ore, the properties registered in the na!e o& the corporation should still be

considered as properties o& co!plainant and her daughter. The respondent !erely

held the! in trust &or co!plainant ;now an ailing (0yearold= and her daughter. The

properties conveyed &raudulently andLor without the reuisite authority should be

dee!ed as never to have been trans&erred, sold or !ortgaged at all.8espondent

shall be liable, in his personal capacity, to third parties who !ay have contracted

with hi! in good &aith.

3ased on the a&ore!entioned "ndings, this >ourt believes that the gravity o&

respondents o?enses cannot be adeuately !atched by !ere suspension as

reco!!ended by the I3B.Instead, his wrongdoings deserve the severe penalty o&

disbar!ent, without preudice to his cri!inal and civil liabilities &or his dishonest

acts.

$0















&ERE(ORE, respondent ttorney Desus T. 3alicanta is hereby *I:388<*.

The >lerk o& >ourt is directed to strike out his na!e &ro! the 8oll o& ttorneys.

SO OR$ERE$.

Bellosillo, 'uno, 3itug, 'anganiban, 4uisumbing, 5nares67antiago, $arpio, )ustria6Martine2, $orona, $arpio6Morales, and $alle8o, 7r., %%., concur.

+avide, %r., $.%., Mendo2a, and 7andoval6(utierre2, %%., on leave.

M!rc) 3, 199I" re LIS B. +AGOR$A,+uran < Lim for respondent.

)ttorney6(eneral %aranilla and 'rovincial 1iscal %ose for the (overnment.MALCOLM, J.:

The respondent, uis 3. Tagorda, a practising attorney and a !e!ber o& theprovincial board o& Isabela, ad!its that previous to the last general elections he!ade use o& a card written in :panish and Ilocano, which, in translation, reads as&ollows5

HI: 3. T)8* )ttorney &otary 'ublic

>C*I*T< F)8 TI8* #<#3<8Brovince o& Isabela;C)T<. U s notary public, he can e/ecute &or you a deed o& sale &orthe purchase o& land as reuired by the cadastral o@ceG can renew lostdocu!ents o& your ani!alsG can !ake your application and "nalreuisites &or your ho!esteadG and can e/ecute any kind o& [email protected] a lawyer, he can help you collect your loans although long overdue,as well as any co!plaint &or or against you. >o!e or write to hi! in histown, <chague, Isabela. e o?ers &ree consultation, and is willing tohelp and serve the poor.=

The respondent &urther ad!its that he is the author o& a letter addressed to alieutenant o& barrio in his ho!e !unicipality written in Ilocano, which letter, in

translation, reads as &ollows5<>H<, I:3<, 7eptember =>, =?@>#M *<8 I<HT<CCT5 I would like to in&or! you o& the approachingdate &or our induction into o@ce as !e!ber o& the Brovincial 3oard,that is on the 16th o& ne/t !onth. 3e&ore !y induction into o@ce Ishould be very glad to hear your suggestions or reco!!endations &orthe good o& the province in general and &or your barrio in particular.

Mou can co!e to !y house at any ti!e here in <chague, to sub!it to!e any kind o& suggestion or reco!!endation as you !ay desire.

$+



I also in&or! you that despite !y !e!bership in the 3oard I will have!y residence here in <chague. I will attend the session o& the 3oard o& Ilagan, but will co!e back ho!e on the &ollowing day here in <chagueto live and serve with you as a lawyer and notary public. *espite !yelection as !e!ber o& the Brovincial 3oard, I will e/ercise !y legalpro&ession as a lawyer and notary public. In case you cannot see !e at

ho!e on any week day, I assure you that you can always "nd !e thereon every :unday. I also in&or! you that I will receive any workregarding preparations o& docu!ents o& contract o& sales and a@davitsto be sworn to be&ore !e as notary public even on :undays.I would like you all to be in&or!ed o& this !atter &or the reason thatso!e people are in the belie& that !y residence as !e!ber o& the3oard will be in Ilagan and that I would then be disuali"ed to e/ercise!y pro&ession as lawyer and as notary public. :uch is not the case andI would !ake it clear that I a! &ree to e/ercise !y pro&ession as&or!erly and that I will have !y residence here in <chague.I would reuest you kind &avor to trans!it this in&or!ation to yourbarrio people in any o& your !eetings or social gatherings so that they

!ay be in&or!ed o& !y desire to live and to serve with you in !ycapacity as lawyer and notary public. I& the people in your locality havenot as yet contracted the services o& other lawyers in connection withthe registration o& their land titles, I would be willing to handle the workin court and would charge only three pesos &or every registration.

Mours respect&ully,;:gd.= HI: T)8*

)ttorney&otary 'ublic.

The &acts being conceded, it is ne/t in order to write down the applicable legalprovisions. :ection 21 o& the >ode o& >ivil Brocedure as originally conceived relatedto disbar!ents o& !e!bers o& the bar. In 1919 at the instigation o& the Bhilippine

3ar ssociation, said codal section was a!ended by ct Co. 2(2( by adding at theend thereo& the &ollowing5 The practice o& soliciting cases at law &or the purpose o& gain, either personally or through paid agents or brokers, constitutes !alpractice.

The statute as a!ended con&or!s in principle to the >anons o& Bro&essionals <thicsadopted by the !erican 3ar ssociation in 19( and by the Bhilippine 3arssociation in 191%. >anons 2% and 2( o& the >ode o& <thics provide5

2%. *A<8TI:IC, *I8<>T )8 IC*I8<>T. U The !ost worthy and e?ectiveadvertise!ent possible, even &or a young lawyer, and especially with hisbrother lawyers, is the establish!ent o& a well!erited reputation &orpro&essional capacity and "delity to trust. This cannot be &orced, but !ust bethe outco!e o& character and conduct. The publication or circulation o& ordinary si!ple business cards, being a !atter o& personal taste or localcusto!, and so!eti!es o& convenience, is not per se i!proper. 3utsolicitation o& business by circulars or advertise!ents, or by personalco!!unications or interview not warranted by personal relations, isunpro&essional. It is eually unpro&essional to procure business by indirectionthrough touters o& any kind, whether allied real estate "r!s or trustco!panies advertising to secure the drawing o& deeds or wills or o?eringretainers in e/change &or e/ecutorships or trusteeships to be inNuenced bythe lawyer. Indirect advertise!ent &or business by &urnishing or inspiring

$$



newspaper co!!ents concerning the !anner o& their conduct, the!agnitude o& the interest involved, the i!portance o& the lawyer's position,and all other like sel&laudation, de&y the traditions and lower the tone o& ourhigh calling, and are intolerable.2(. :TI88IC HB ITITI)C, *I8<>TM )8 T8)H <CT:. U It isunpro&essional &or a lawyer to volunteer advice to bring a lawsuit, e/cept in

rare cases where ties o& blood, relationship or trust !ake it his duty to do so.:tirring up stri&e and litigation is not only unpro&essional, but it is indictable atco!!on law. It is disreputable to hunt up de&ects in titles or other causes o& action and in&or! thereo& in order to the e!ployed to bring suit, or to breedlitigation by seeking out those with clai!s &or personal inuries or thosehaving any other grounds o& action in order to secure the! as clients, or toe!ploy agents or runners &or like purposes, or to pay or reward directly orindirectly, those who bring or inNuence the bringing o& such cases to hiso@ce, or to re!unerate police!en, court or prison o@cials, physicians,hospital attaches or others who !ay succeed, under the guise o& givingdisinterested &riendly advice, in inNuencing the cri!inal, the sick and theinured, the ignorant or others, to seek his pro&essional services. duty to the

public and to the pro&ession devolves upon every !e!ber o& the bar havingknowledge o& such practices upon the part o& any practitioner i!!ediately toin&or! thereo& to the end that the o?ender !ay be disbarred.

>o!!on barratry consisting o& &reuently stirring up suits and uarrels betweenindividuals was a cri!e at the co!!on law, and one o& the penalties &or this o?ensewhen co!!itted by an attorney was disbar!ent. :tatutes intended to reach thesa!e evil have been provided in a nu!ber o& urisdictions usually at the instance o& the bar itsel&, and have been upheld as constitutional. The reason behind statutes o& this type is not di@cult to discover. The law is a pro&ession and not a business. Thelawyer !ay not seek or obtain e!ploy!ent by hi!sel& or through others &or to do sowould be unpro&essional. ;:tate vs. 8oss!an E199, $0 -ash., 1G 1% nn. >as., 62$GBeoplevs. #ac >abe E1(90, 19 . 8. ., 201G 2 8. >. ., 19%.=

It beco!es our duty to conde!n in no uncertain ter!s the ugly practice o& solicitation o& cases by lawyers. It is destructive o& the honor o& a great pro&ession. Itlowers the standards o& that pro&ession. It works against the con"dence o& theco!!unity in the integrity o& the !e!bers o& the bar. It results in needless litigationand in incenting to stri&e otherwise peace&ully inclined citi4ens.

The solicitation o& e!ploy!ent by an attorney is a ground &or disbar!ent orsuspension. That should be distinctly understood.iving application o& the law and the >anons o& <thics to the ad!itted &acts, therespondent stands convicted o& having solicited cases in de"ance o& the law andthose canons. ccordingly, the only re!aining duty o& the court is to "/ upon theaction which should here be taken. The provincial "scal o& Isabela, with who! oinedthe representative o& the ttorneyeneral in the oral presentation o& the case,suggests that the respondent be only repri!anded. -e think that our action shouldgo &urther than this i& only to reNect our attitude toward cases o& this character o& which un&ortunately the respondent's is only one. The co!!ission o& o?enses o& thisnature would a!ply usti&y per!anent eli!ination &ro! the bar. 3ut as !itigating,circu!stances working in &avor o& the respondent there are, "rst, his inti!ation thathe was unaware o& the i!propriety o& his acts, second, his youth and ine/perienceat the bar, and, third, his pro!ise not to co!!it a si!ilar !istake in the &uture. !odest period o& suspension would see! to "t the case o& the erring attorney. 3ut it

$6



should be distinctly understood that this result is reached in view o& theconsiderations which have inNuenced the court to the relatively lenient in thisparticular instance and should, there&ore, not be taken as indicating that &utureconvictions o& practice o& this kind will not be dealt with by disbar!ent.In view o& all the circu!stances o& this case, the udg!ent o& the court is that therespondent uis 3. Tagorda be and is hereby suspended &ro! the practice as an

attorneyatlaw &or the period o& one !onth &ro! pril 1, 1929,7treet, %ohns, Romualde2, and 3illa6Real, %%., concur.

%ohnson, %., reserves his vote.

Se@!r!te O@/"/o"0OS+RAN$, J., dissenting5I dissent. Hnder the circu!stances o& the case a repri!and would have beensu@cient punish!ent.

A.C. No. 599. A0t 19, 3

A++:. ISMAEL G. F&AN, 'R., A00/0t!"t Cort A#?/"/0tr!tor !"# C)/e, *b/c

I"or?!t/o" OJce, complainant, vs. A++:. RIZALINO +.

SIMBILLO,respondent .

G.R. No. 15753. A0t 19, 3

$%



A++:. RIZALINO +. SIMBILLO, petitioner, vs. IB* COMMISSION ON BAR

$ISCI*LINE !"# A++:. ISMAEL G. F&AN, 'R., /" )/0 c!@!c/t !0

A00/0t!"t Cort A#?/"/0tr!tor !"# C)/e, *b/c I"or?!t/o"

OJce, respondents.

R E S O L + I O N

:NARES-SAN+IAGO, J.>

This ad!inistrative co!plaint arose &ro! a paid advertise!ent that appeared in

the Duly $, 2 issue o& the newspaper, Bhilippine *aily Inuirer, which reads5

CCH#<CT )F #88I< :pecialist $02+000L$21266%.E1

#s. #a. Theresa 3. <speleta, a sta? !e!ber o& the Bublic In&or!ation )@ce o&

the :upre!e >ourt, called up the published telephone nu!ber and pretended to be

an interested party.:he spoke to #rs. :i!billo, who clai!ed that her husband, tty.

8i4alino :i!billo, was an e/pert in handling annul!ent cases and can guarantee a

court decree within &our to si/ !onths, provided the case will not involve separation

o& property or custody o& children. #rs. :i!billo also said that her husband charges

a &ee o& B+(,., hal& o& which is payable at the ti!e o& "ling o& the case and the

other hal& a&ter a decision thereon has been rendered.

Further research by the )@ce o& the >ourt d!inistrator and the Bublic

In&or!ation )@ce revealed that si!ilar advertise!ents were published in the

ugust 2 and 6, 2 issues o& the#anila 3ulletin and ugust $, 2 issue o&

The Bhilippine :tar.E2

)n :epte!ber 1, 2, tty. Is!ael . Qhan, Dr., in his capacity as ssistant

>ourt d!inistrator and >hie& o& the Bublic In&or!ation )@ce, "led an

ad!inistrative co!plaint against tty. 8i4alino T. :i!billo &or i!proper advertising

and solicitation o& his legal services, in violation o& 8ule 2.0 and 8ule 0.1 o& the

>ode o& Bro&essional 8esponsibility and 8ule 10(, :ection 2% o& the 8ules o& >ourt. E0

In his answer, respondent ad!itted the acts i!puted to hi!, but argued that

advertising and solicitation per se are not prohibited actsG that the ti!e has co!e to

change our views about the prohibition on advertising and solicitationG that the

interest o& the public is not served by the absolute prohibition on lawyer advertisingG

that the >ourt can li&t the ban on lawyer advertisingG and that the rationale behind

the decadesold prohibition should be abandoned. Thus, he prayed that he be

e/onerated &ro! all the charges against hi! and that the >ourt pro!ulgate a ruling

that advertise!ent o& legal services o?ered by a lawyer is not contrary to law,

public policy and public order as long as it is digni"ed. E+

$(











The case was re&erred to the Integrated 3ar o& the Bhilippines &or investigation,

report and reco!!endation.E$ )n Dune 29, 22, the I3B >o!!ission on 3ar

*iscipline passed 8esolution Co. OA2206,E6 "nding respondent guilty o&

violation o& 8ules 2.0 and 0.1 o& the >ode o& Bro&essional 8esponsibility and 8ule

10(, :ection 2% o& the 8ules o& >ourt, and suspended hi! &ro! the practice o& law

&or one ;1= year with the warning that a repetition o& si!ilar acts would be dealt with!ore severely. The I3B 8esolution was noted by this >ourt on Cove!ber 11, 22.E%

In the !eanti!e, respondent "led an Hrgent #otion &or 8econsideration,E( which

was denied by the I3B in 8esolution Co. OA2266 dated )ctober 19, 22 E9

ence, the instant petition &or certiorari, which was docketed as .8. Co.

1$%$0 entitled, )tty. Ri2alino ". 7imbillo, 'etitioner versus B' $ommission on Bar

+iscipline, )tty. smael (. 9han, %r., )sst. $ourt )dministrator and $hief, 'ublic

nformation ;Ace, Respondents. This petition was consolidated with .>. Co. $299

per the >ourts 8esolution dated #arch +, 20.

In a 8esolution dated #arch 26, 20, the parties were reuired to !ani&est

whether or not they were willing to sub!it the case &or resolution on the basis o& the

pleadings.E1>o!plainant "led his #ani&estation on pril 2$, 20, stating that he is

not sub!itting any additional pleading or evidence and is sub!itting the case &or its

early resolution on the basis o& pleadings and records thereo&. E11 8espondent, on the

other hand, "led a :upple!ental #e!orandu! on Dune 2, 20.

-e agree with the I3Bs 8esolutions Cos. OA2206 and OA2266.

8ules 2.0 and 0.1 o& the >ode o& Bro&essional 8esponsibility read5

Re .3. lawyer shall not do or per!it to be done any act designed pri!arily to

solicit legal business.

Re 3.1. lawyer shall not use or per!it the use o& any &alse, &raudulent,

!isleading, deceptive, undigni"ed, sel&laudatory or un&air state!ent or clai!

regarding his uali"cations or legal services.

8ule 10(, :ection 2% o& the 8ules o& >ourt states5

SEC. 7. +isbarment and suspension of attorneys by 7upreme $ourt, grounds

therefor. !e!ber o& the bar !ay be disbarred or suspended &ro! his o@ce as

attorney by the :upre!e >ourt &or any deceit, !alpractice or other gross

!isconduct in such o@ce, grossly i!!oral conduct or by reason o& his conviction o&

a cri!e involving !oral turpitude, or &or any violation o& the oath which he is

reuired to take be&ore the ad!ission to practice, or &or a will&ul disobedience

appearing as attorney &or a party without authority to do so.

$9

















It has been repeatedly stressed that the practice o& law is not a business. E12 It is

a pro&ession in which duty to public service, not !oney, is the pri!ary

consideration. awyering is not pri!arily !eant to be a !oney!aking venture, and

law advocacy is not a capital that necessarily yields pro"ts. E10 The gaining o& a

livelihood should be a secondary consideration. E1+ The duty to public service and to

the ad!inistration o& ustice should be the pri!ary consideration o& lawyers, who!ust subordinate their personal interests or what they owe to the!selves. E1$ The

&ollowing ele!ents distinguish the legal pro&ession &ro! a business5

1. duty o& public service, o& which the e!olu!ent is a byproduct, and in

which one !ay attain the highest e!inence without !aking !uch

!oneyG

2. relation as an o@cer o& the court to the ad!inistration o& ustice

involving thorough sincerity, integrity and reliabilityG

0. relation to clients in the highest degree o& "duciaryG

+. relation to colleagues at the bar characteri4ed by candor, &airness, and

unwillingness to resort to current business !ethods o& advertising and

encroach!ent on their practice, or dealing directly with their clients.E16

There is no uestion that respondent co!!itted the acts co!plained o&. e

hi!sel& ad!its that he caused the publication o& the advertise!ents. -hile he

pro&esses repentance and begs &or the >ourts indulgence, his contrition rings

hollow considering the &act that he advertised his legal services again a&ter he

pleaded &or co!passion and a&ter clai!ing that he had no intention to violate therules. <ight !onths a&ter "ling his answer, he again advertised his legal services in

the ugust 1+, 21 issue o& the 3uy J :ell Free ds Cewspaper. E1% Ten !onths

later, he caused the sa!e advertise!ent to be published in the )ctober $, 21

issue o& 3uy J :ell.E1( :uch acts o& respondent are a deliberate and conte!ptuous

a?ront on the >ourts authority.

-hat adds to the gravity o& respondents acts is that in advertising hi!sel& as a

sel&styled nnul!ent o& #arriage :pecialist, he wittingly or unwittingly erodes and

under!ines not only the stability but also the sanctity o& an institution still

considered sacrosanct despite the conte!porary cli!ate o& per!issiveness in our

society. Indeed, in assuring prospective clients that an annul!ent !ay be obtained

in &our to si/ !onths &ro! the ti!e o& the "ling o& the case, E19 he in &act encourages

people, who !ight have otherwise been disinclined and would have re&rained &ro!

dissolving their !arriage bonds, to do so.

Conetheless, the solicitation o& legal business is not altogether

proscribed. owever, &or solicitation to be proper, it !ust be co!patible with the

6



















dignity o& the legal pro&ession. I& it is !ade in a !odest and decorous !anner, it

would bring no inury to the lawyer and to the bar. E2 Thus, the use o& si!ple signs

stating the na!e or na!es o& the lawyers, the o@ce and residence address and

"elds o& practice, as well as advertise!ent in legal periodicals bearing the sa!e

brie& data, are per!issible. <ven the use o& calling cards is now acceptable.E21

Bublication in reputable law lists, in a !anner consistent with the standards o& conduct i!posed by the canon, o& brie& biographical and in&or!ative data is likewise

allowable. s e/plicitly stated in lep v. Legal $linic, nc.:E22

:uch data !ust not be !isleading and !ay include only a state!ent o& the lawyers

na!e and the na!es o& his pro&essional associatesG addresses, telephone nu!bers,

cable addressesG branches o& law practicedG date and place o& birth and ad!ission

to the barG schools attended with dates o& graduation, degrees and other

educational distinctionsG public or uasipublic o@cesG posts o& honorG legal

authorshipsG legal teaching positionsG !e!bership and o@ces in bar associations

and co!!ittees thereo&, in legal and scienti"c societies and legal &raternitiesG the

&act o& listings in other reputable law listsG the na!es and addresses o& re&erencesG

and, with their written consent, the na!es o& clients regularly represented.

The law list !ust be a reputable law list published pri!arily &or that purposeG it

cannot be a mere supplemental feature of a paper, maga2ine, trade 8ournal or

periodical which is published principally for other purposes. 1or that reason, a

la!er ma! not properl! pu"lis# #is "rie$ "io%rap#ical and in$ormative

data in a dail! paper, ma%a&ine, trade 'ournal or societ! pro%ram. &or may

a lawyer permit his name to be published in a law list the conduct, management, or

contents of which are calculated or li#ely to deceive or in8ure the public or the bar,

or to lower dignity or standing of the profession.

The use o& an ordinary si!ple pro&essional card is also per!itted. The card !ay

contain only a state!ent o& his na!e, the na!e o& the law "r! which he is

connected with, address, telephone nu!ber and special branch o& law

practiced. The publication o& a si!ple announce!ent o& the opening o& a law "r! or

o& changes in the partnership, associates, "r! na!e or o@ce address, being &or the

convenience o& the pro&ession, is not obectionable. e !ay likewise have his na!e

listed in a telephone directory but not under a designation of special branch of

law. ;e!phasis and italics supplied=

&ERE(ORE, in view o& the &oregoing, respondent 8IPIC) T. :I#3I) is

&ound HITM o& violation o& 8ules 2.0 and 0.1 o& the >ode o& Bro&essional

8esponsibility and 8ule 10(, :ection 2% o& the 8ules o& >ourt. e is :H:B<C*<*

&ro! the practice o& law &or )C< ;1= M<8 e?ective upon receipt o& this

8esolution. e is likewise :T<8CM -8C<* that a repetition o& the sa!e or si!ilar

o?ense will be dealt with !ore severely.

61









et copies o& this 8esolution be entered in his record as attorney and be

&urnished the Integrated 3ar o& the Bhilippines and all courts in the country &or their

in&or!ation and guidance.

SO OR$ERE$.

3itug, /)cting $hairman0,$arpio, and )2cuna, %%., concur.

+avide, %r., $.%., /$hairman 0, abroad, on o@cial business.

A. C. No. 5485. M!rc) 16, 5

ELMER CANO:, complainant, vs. A++:. 'OSE MAK OR+IZ, respondent .

$ E C I S I O N

+INGA, J.>

There are no good reasons that would usti&y a lawyer virtually abandoning thecause o& the client in the !idst o& litigation without even in&or!ing the client o& the

&act or cause o& desertion. That the lawyer &orsook his legal practice on account o&

what !ight be perceived as a higher calling, election to public o@ce, does not

!itigate the dereliction o& pro&essional duty. :uspension &ro! the practice is the

usual penalty, and there is no reason to deviate &ro! the nor! in this case.

62



$omplaint E1 dated 1 pril 21 was "led with the )@ce o& the 3ar >on"dant

by <l!er >anoy ;>anoy= accusing tty. Dose #a/ )rti4 ;tty. )rti4= o& !isconduct and

!alpractice. It was alleged that >anoy "led a co!plaint &or illegal dis!issal against

his &or!er e!ployer, >oca >ola 3ottlers Bhilippines. The co!plaint was "led with

the Cational abor 8elations >o!!ission ;C8>= 8egional rbitration 3oard AI in

3acolod >ity.E2

tty. )rti4 appeared as counsel &or >anoy in this proceeding. In 199(,the labor arbiter hearing the co!plaint ordered the parties to sub!it their

respective position papers. >anoy sub!itted all the necessary docu!ents and

records to tty. )rti4 &or the preparation o& the position paper. Therea&ter, he !ade

several un&ruit&ul visits to the o@ce o& tty. )rti4 to &ollowup the progress o& the

case. &ter a "nal visit at the o@ce o& tty. )rti4 in pril o& 2, during which >anoy

was told to co!e back as his lawyer was not present, >anoy decided to &ollowup

the case hi!sel& with the C8>. e was shocked to learn that his co!plaint was

actually dis!issed way back in 199(, &or &ailure to prosecute, the parties not having

sub!itted their position papers.E0 The dis!issal was without preudice. >anoy

alleged that tty. )rti4 had never co!!unicated to hi! about the status o& the

case, !uch less the &act that he &ailed to sub!it the position paper.

The $omment E+ "led by tty. )rti4 is the epito!e o& sel&hagiography. e

in&or!s the >ourt that since co!!encing his law practice in 19(%, he has !ostly

catered to indigent and lowinco!e clients, at considerable "nancial sacri"ce to

hi!sel&. tty. )rti4 clai!s that &or !ore than ten years, his law o@ce was a virtual

adunct o& the Bublic ttorneys )@ce with its steady strea! o& nonpaying clients in

the hundreds or thousands.E$ t the sa!e ti!e, he hosted a legal assistance show

on the radio, catering to &arNung !unicipalities and reaching the people who need

legal advice and assistance.E6 tty. )rti4 pursued on with this li&estyle until his

election as >ouncilor o& 3acolod >ity, a victory which he generously attributes to thehelp o& the sa!e people who! he had helped by way o& legal assistance be&ore. E%

>anoy was a!ong those lowinco!e clients who! tty. )rti4 deigned to

represent. The lawyer was apparently con"dent that the illegal dis!issal case would

eventually be resolved by way o& co!pro!ise. e clai!s having prepared the

position paper o& >anoy, but be&ore he could sub!it the sa!e, the abor rbiter had

already issued the order dis!issing the case. E(tty. )rti4 ad!its though that the

period within which to "le the position paper had already lapsed. e attributes this

&ailure to ti!ely "le the position paper to the &act that a&ter his election as >ouncilor

o& 3acolod >ity, he was &rankly preoccupied with both his &unctions as a localgovern!ent o@cial and as a practicing lawyer. <ventually, his desire to help was

beyond physical li!itations, and he withdrew &ro! his other cases and his &ree legal

services.E9

ccording to tty. )rti4, #r. >anoy should have at least understood that during

all that ti!e, he was &ree to visit or call the o@ce and be entertained by the

secretary as Ehe would nor!ally report to the o@ce in the a&ternoon as he had to

60

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attend to court trials and report to the :anggunian [email protected] e states that it was his

policy to in&or! clients that they should be the ones to &ollowup their cases with his

o@ce, as it would be too di@cult and a "nancial burden to attend !aking &ollowups

with hundreds o& clients, !ostly indigents with only two o@ce personnel.E11

Conetheless, tty. )rti4 notes that the dis!issal o& >anoys co!plaint waswithout preudice, thus the prescriptive period had been tolled. e clai!s not being

able to re!e!ber whether he i!!ediately in&or!ed >anoy o& the dis!issal o& the

case, though as &ar as he could recall, >anoy had conveyed a !essage to hi! that

he had a lawyer to handle the case, thus his o@ce did not insist on re"ling the

sa!e.E12

The !atter was re&erred to the Integrated 3ar o& the Bhilippines ;I3B= &or

investigation, report and reco!!endation.E10 >anoy eventually sub!itted a !otion

withdrawing the co!plaint, but this was not &avorably acted upon by the I3B in view

o& the rule that the investigation o& a case shall not be interrupted or ter!inated by

reason o& withdrawal o& the charges.E1+<ventually, the investigating co!!issioner

concluded that clearly, the records show that Etty. )rti4 &ailed to e/ercise that

degree o& co!petence and diligence reuired o& hi! in prosecuting his clients ;sic=

clai!, and reco!!ended that tty. )rti4 be repri!anded. E1$ The I3B >o!!ission on

*iscipline adopted the reco!!endation, with the slight !odi"cation that tty. )rti4

be likewise warned that a repetition o& the sa!e negligence shall be dealt with !ore

severely in the &uture.

The >ourt is sensitive to the di@culties in obtaining legal representation &or

indigent or lowinco!e litigants. part &ro! the heroic e?orts o& govern!ent entities

such as the Bublic ttorneys )@ce, groups such as the I3B Cational >o!!ittee onegal id and the )@ce o& egal id o& the HB >ollege o& aw have likewise been at

the &ore&ront in the uest to provide legal representation &or those who could not

otherwise a?ord the services o& lawyers. The e?orts o& private practitioners who

assist in this goal are especially co!!endable, owing to their sacri"ce in ti!e and

resources beyond the call o& duty and without e/pectation o& pecuniary reward.

Met, the proble! o& underrepresentation o& indigent or lowinco!e clients is ust

as grievous as that o& nonrepresentation. d!irable as the apparent &ocus o& tty.

)rti4s legal practice !ay have been, his particular representation o& >anoy in the

latters illegal dis!issal case leaves !uch to be desired.

:everal o& the canons and rules in the >ode o& Bro&essional 8esponsibility guard

against the sort o& conduct displayed by tty. )rti4 with respect to the handling o&

>anoys case.

>C)C 1% -M<8 )-<: FI*<ITM T) T< >H:< )F I: >I<CT C* < :

3< #IC*FH )F T< T8H:T C* >)CFI*<C>< 8<B):<* IC I#.

6+















>C)C 1( -M<8 : :<8A< I: >I<CT -IT >)#B<T<C>< C* *II<C><.

. . .

8ule 1(.0 lawyer shall not neglect a legal !atter entrusted to hi!, and his

negligence in connection therewith shall render hi! liable.

8ule 1(.+ lawyer shall keep the client in&or!ed o& the status o& his case and shall

respond within a reasonable ti!e to the clients reuest &or in&or!ation.

. . .

>C)C 22 -M<8 : -IT*8- I: :<8AI><: )CM F)8 ))* >H:< C*

HB)C C)TI>< BB8)B8IT< IC T< >I8>H#:TC><:.

. . .

8ule 22.2 lawyer who withdraws or is discharged shall, subect to a retainer lien,

i!!ediately turn over all papers and property to which the client is entitled, and

shall cooperate with his successor in the orderly trans&er o& the !atter, including all

in&or!ation necessary &or the proper handling o& the !atter.

tty. )rti4 should have "led the position paper on ti!e, owing to his duty as

counsel o& >anoy to attend to this legal !atter entrusted to hi!. is &ailure to do so

constitutes a violation o& 8ule 1(.0 o& the >ode o& Bro&essional 8esponsibility.

)nce he agrees to take up the cause o& a client, a lawyer owes "delity to such causeand !ust always be !ind&ul o& the trust and con"dence reposed in hi!. e !ust

serve the client with co!petence and diligence and cha!pion the latter's cause

with wholehearted "delity, care and devotion. <lsewise stated, he owes entire

devotion to the interest o& the client, war! 4eal in the !aintenance and de&ense o&

his client's rights, and the e/ertion o& his ut!ost learning and ability to the end that

nothing be taken or withheld &ro! his client, save by the rules o& law, legally

applied. This si!ply !eans that his client is entitled to the bene"t o& any and every

re!edy and de&ense that is authori4ed by the law o& the land and he !ay e/pect his

lawyer to assert every such re!edy or de&ense. I& !uch is de!anded &ro! an

attorney, it is because the entrusted privilege to practice law carries with it the

correlative duties not only to the client but also to the court, to the bar and to the

public. lawyer who per&or!s his duty with diligence and candor not only protects

the interest o& his clientG he also serves the ends o& ustice, does honor to the bar

and helps !aintain the respect o& the co!!unity to the legal pro&ession.E16

I& indeed tty. )rti4s schedule, workload, or physical condition was such that he

would not be able to !ake a ti!ely "ling, he should have in&or!ed >anoy o& such

6$





&act. The relationship o& lawyerclient being one o& con"dence, there is ever present

the need &or the client to be adeuately and &ully in&or!ed o& the develop!ents o&

the case and should not be le&t in the dark as to the !ode and !anner in which

hisLher interests are being de&ended.E1%

There could have been re!edies undertaken to this inability o& tty. )rti4 to "leon ti!e the position paper had >anoy been told o& such &act, such as a reuest &or

!ore ti!e to "le the position paper, or !aybe even the hiring o& collaborating

counsel or substitution o& tty. )rti4 as counsel. :ince tty. )rti4 did not e/ercise the

necessary degree o& care by either "ling the position paper on ti!e or in&or!ing

>anoy that the paper could not be sub!itted seasonably, the igno!iny o& having

the co!plaint dis!issed &or &ailure to prosecute could not be avoided.

That the case was dis!issed without preudice, thus allowing >anoy to re"le the

case, hardly serves to !itigate the liability o& tty. )rti4, as the &ailure to "le the

position paper is per sea violation o& 8ule 1(.0.E1(

Ceither is the >ourt !olli"ed by the circu!stance o& tty. )rti4s election as a

>ity >ouncilor o& 3acolod >ity, as his adoption o& these additional duties does not

e/onerate hi! o& his negligent behavior. The >ode o& Bro&essional 8esponsibility

does allow a lawyer to withdraw his legal services i& the lawyer is elected or

appointed to a public [email protected] :tatutes e/pressly prohibit the occupant o& particular

public o@ces &ro! engaging in the practice o& law, such as governors and !ayors,E2 and in such instance, the attorneyclient relationship is ter!inated.E21 owever,

city councilors are allowed to practice their pro&ession or engage in any occupation

e/cept during session hours, and in the case o& lawyers such as tty. )rti4, subect

to certain prohibitions which are not relevant to this case.E22 In such case, thelawyer nevertheless has the choice to withdraw hisLher services.E20 :till, the

severance o& the relation o& attorneyclient is not e?ective until a notice o&

discharge by the client or a !ani&estation clearly indicating that purpose is "led

with the court or tribunal, and a copy thereo& served upon the adverse party, and

until then, the lawyer continues to be counsel in the case. E2+

ssu!ing that tty. )rti4 was usti"ed in ter!inating his services, he, however,

cannot ust do so and leave co!plainant in the cold unprotected. E2$ Indeed, 8ule

22.2 reuires that a lawyer who withdraws or is discharged shall, subect to a lien,

i!!ediately turn over all papers and property to which the client is entitled, and

shall cooperate with his successor in the orderly trans&er o& the !atter. tty. )rti4

clai!s that the reason why he took no &urther action on the case was that he was

in&or!ed that >anoy had acuired the services o& another counsel. ssu!ing that

were true, there was no apparent coordination between tty. )rti4 and this new

counsel.

66





















In &act, it took nearly two years be&ore >anoy had learned that the position

paper had not been "led and that the case had been dis!issed. This was highly

irresponsible o& tty. )rti4, !uch !ore so considering that >anoy was one o& the

indigent clients who! tty. )rti4 proudly clai!s as his &avored clientele. It does not

escape the >ourts attention that tty. )rti4 &aults >anoy &or not adeuately

&ollowing up the case with his [email protected]

e cannot now shi&t the bla!e toco!plainant &or &ailing to inuire about the status o& the case, since, as stated

above, it was his duty as lawyer to in&or! his clients o& the status o& cases entrusted

to hi!.E2%

The appropriate sanction is within the sound discretion o& this >ourt. In cases o&

si!ilar nature, the penalty i!posed by the >ourt consisted o& either a repri!and, a

"ne o& "ve hundred pesos with warning, suspension o& three !onths, si/ !onths,

and even disbar!ent in aggravated cases.E2( iven the circu!stances, the >ourt

"nds the penalty reco!!ended by the I3B too lenient and instead suspends tty.

)rti4 &ro! the practice o& law &or one ;1= !onth. The graver penalty o& suspension is

warranted in lieu o& an ad!onition or a repri!and considering that tty. )rti4s

undisputed negligence in &ailing to ti!ely "le the position paper was co!pounded

by his &ailure to in&or! >anoy o& such &act, and the successive dis!issal o& the

co!plaint.

awyers who devote their pro&essional practice in representing litigants who

could ill a?ord legal services deserve co!!endation. owever, this !antle o& public

service will not deliver the lawyer, no !atter how well!eaning, &ro! the

conseuences o& negligent acts. It is not enough to say that all pauper litigants

should be assured o& legal representation. They deserve uality representation as

well.

&ERE(ORE, respondent tty. Dose #a/ :. )rti4 is ordered :H:B<C*<* &ro!

the practice o& law &or one ;1= !onth &ro! notice, with the warning that a repetition

o& the sa!e negligence will be dealt with !ore severely. et a copy o& this decision

be attached to respondent's personal record in the )@ce o& the 3ar >on"dant and

copies be &urnished to all chapters o& the Integrated 3ar o& the Bhilippines and to all

the courts in the land.

SO OR$ERE$.

'uno, /$hairman0, )ustria6Martine2, $alle8o, 7r., and $hico6&a2ario, %%., concur.

6%









*E$RO L. LINSANGAN, .>. Co. 66%2Co?@!/"!"t,

Bresent5

BHC), $.%., $hairperson,>8BI),

- e r 0 0 - >)8)C,<)C8*)*< >:T8) and3<8:#IC, %%.A++:. NICOME$ES +OLEN+INO,Re0@o"#e"t. Bro!ulgated5

:epte!ber +, 29 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R E S O L + I O N

CORONA, J.>

This is a co!plaint &or disbar!entE1 "led by Bedro insangan o& the insanganinsangan J insangan aw )@ce against tty. Cico!edes Tolentino &or solicitationo& clients and encroach!ent o& pro&essional services.>o!plainant alleged that respondent, with the help o& paralegal Fe #arie abiano,convinced his clientsE2 to trans&er legal representation. 8espondent pro!ised the!"nancial assistanceE0 and e/peditious collection on their clai!s. E+ To induce the! tohire his services, he persistently called the! and sent the! te/t !essages.

To support his allegations, co!plainant presented the sworn a@davitE$ o& Da!esregorio attesting that abiano tried to prevail upon hi! to sever his lawyerclientrelations with co!plainant and utili4e respondents services instead, in e/change &ora loan o& B$,. >o!plainant also attached respondents calling card5 E6

Front CI>)#<*<: T)<CTIC)- )FFFI><>)C:HTC>M J #8ITI#< :<8AI><:() *I+A+CIA ASSIS-A+CE Fe #arie . abianoBaralegal 1st #IDI #ansion, 2nd Flr. 8!. #1 Tel5 062%(26th ve., cor #.. *el Bilar Fa/5 ;602= 062%(21race Bark, >aloocan >ity >el.5 ;926= 2%1%19

6(

http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/6672.htm#_ftn1














3ack

:<8AI><: )FF<8<*5

>)C:HTTI)C C* ::I:TC><

T) )A<8:<: :<#<C

8<BT8IT<* *H< T) >>I*<CT,

ICDH8M, IC<::, :I>QC<::, *<T

C* IC:H8C>< 3<C<FIT >I#:

38)*.

;e!phasis supplied=ence, this co!plaint.8espondent, in his de&ense, denied knowing abiano and authori4ing the printingand circulation o& the said calling card.E%

The co!plaint was re&erred to the >o!!ission on 3ar *iscipline ;>3*= o& theIntegrated 3ar o& the Bhilippines ;I3B= &or investigation, report and reco!!endation.E(

3ased on testi!onial and docu!entary evidence, the >3*, in its report andreco!!endation,E9 &ound that respondent had encroached on the pro&essionalpractice o& co!plainant, violating 8ule (.2 E1 and other canonsE11 o& the >ode o& Bro&essional 8esponsibility ;>B8=. #oreover, he contravened the rule against

soliciting cases &or gain, personally or through paid agents or brokers as stated in:ection 2%, 8ule 10(E12 o& the 8ules o& >ourt. ence, the >3* reco!!ended thatrespondent be repri!anded with a stern warning that any repetition would !erit aheavier penalty.-e adopt the "ndings o& the I3B on the unethical conduct o& respondent but we!odi&y the reco!!ended penalty.

The co!plaint be&ore us is rooted on the alleged intrusion by respondent intoco!plainants pro&essional practice in violation o& 8ule (.2 o& the >B8. nd the!eans e!ployed by respondent in &urtherance o& the said !isconduct the!selvesconstituted distinct violations o& ethical rules.>anons o& the >B8 are rules o& conduct all lawyers !ust adhere to, including the!anner by which a lawyers services are to be !ade known. Thus, >anon 0 o& the

>B8 provides5 >C)C 0 -M<8 IC #QIC QC)-C I: < :<8AI><: :H:< )CM T8H<, )C<:T, FI8, *ICIFI<* C* )3D<>TIA<ICF)8#TI)C )8 :TT<#<CT )F F>T:.

Ti!e and ti!e again, lawyers are re!inded that the practice o& law is a pro&essionand not a businessG lawyers should not advertise their talents as !erchantsadvertise their wares.E10 To allow a lawyer to advertise his talent or skill is to

69

















co!!erciali4e the practice o& law, degrade the pro&ession in the publics esti!ationand i!pair its ability to e@ciently render that high character o& service to whichevery !e!ber o& the bar is called.E1+

8ule 2.0 o& the >B8 provides5

8H< 2.0. -M<8 : C)T *) )8 B<8#IT T) 3< *)C< CM >T*<:IC<* B8I#8IM T) :)I>IT < 3H:IC<::.

ence, lawyers are prohibited &ro! soliciting cases &or the purpose o& gain, eitherpersonally or through paid agents or brokers.E1$ :uch actuation constitutes!alpractice, a ground &or disbar!ent.E16

8ule 2.0 should be read in connection with 8ule 1.0 o& the >B8 which

provides5

8H< 1.0. -M<8 : C)T, F)8 CM >)88HBT #)TIA< )8ICT<8<:T, <C>)H8< CM :HIT )8 B8)><<*IC )8 *<M CM

#C: >H:<.

This rule proscribes a!bulance chasing ;the solicitation o& al!ost any kind o& legalbusiness by an attorney, personally or through an agent in order to gaine!ploy!ent=E1% as a !easure to protect the co!!unity &ro! barratry andcha!perty.E1(

>o!plainant presented substantial evidenceE19 ;consisting o& the sworn state!entso& the very sa!e persons coa/ed by abiano and re&erred to respondents o@ce= toprove that respondent indeed solicited legal business as well as pro"ted &ro!re&errals suits.

lthough respondent initially denied knowing abiano in his answer, he laterad!itted it during the !andatory hearing.

Through abianos actions, respondents law practice was bene"ted. apless

sea!en were enticed to trans&er representation on the strength o& abianos wordthat respondent could produce a !ore &avorable result.3ased on the &oregoing, respondent clearly solicited e!ploy!ent violating 8ule2.0, and 8ule 1.0 and >anon 0 o& the >B8 and :ection 2%, 8ule 10( o& the 8ules o& >ourt.-ith regard to respondents violation o& 8ule (.2 o& the >B8, settled is the rule thata lawyer should not steal another lawyers client nor induce the latter to retain hi!by a pro!ise o& better service, good result or reduced &ees &or his services. E2 gainthe >ourt notes that respondent never denied having these sea&arers in his clientlist nor receiving bene"ts &ro! abianos re&errals. Further!ore, he never deniedabianos connection to his [email protected] 8espondent co!!itted an unethical, predatoryoverstep into anothers legal practice. e cannot escape liability under 8ule (.2 o& the >B8.#oreover, by engaging in a !oneylending venture with his clients as borrowers,respondent violated 8ule 16.+5

%



















8ule 16.+ lawyer shall not borrow !oney &ro! his client unless the clientsinterests are &ully protected by the nature o& the case or byindependent advice. Ceither shall a lawyer lend !oney to a cliente/cept, when in the interest o& ustice, he has to advance necessarye/penses in a legal !atter he is handling &or the client.

The rule is that a lawyer shall not lend !oney to his client. The only e/ception

is, when in the interest o& ustice, he has to advance necessary e/penses ;such as"ling &ees, stenographers &ees &or transcript o& stenographic notes, cash bond orpre!iu! &or surety bond, etc.= &or a !atter that he is handling &or the client.

The rule is intended to sa&eguard the lawyers independence o& !ind so thatthe &ree e/ercise o& his udg!ent !ay not be adversely a?ected. E22 It seeks toensure his undivided attention to the case he is handling as well as his entiredevotion and "delity to the clients cause. I& the lawyer lends !oney to the client inconnection with the clients case, the lawyer in e?ect acuires an interest in thesubect !atter o& the case or an additional stake in its outco!e. E20 <ither o& thesecircu!stances !ay lead the lawyer to consider his own recovery rather than that o& his client, or to accept a settle!ent which !ay take care o& his interest in the

verdict to the preudice o& the client in violation o& his duty o& undivided "delity tothe clients cause.E2+

s previously !entioned, any act o& solicitation constitutes !alpracticeE2$ whichcalls &or the e/ercise o& the >ourts disciplinary powers. Aiolation o& antisolicitationstatutes warrants serious sanctions &or initiating contact with a prospective client&or the purpose o& obtaining e!ploy!ent.E26 Thus, in this urisdiction, we adhere tothe rule to protect the public &ro! the #achiavellian !achinations o& unscrupulouslawyers and to uphold the nobility o& the legal pro&ession.

>onsidering the !yriad in&ractions o& respondent ;including violation o& theprohibition on lending !oney to clients=, the sanction reco!!ended by the I3B, a!ere repri!and, is a wi!py slap on the wrist. The proposed penalty is grossly

inco!!ensurate to its "ndings. "nal word regarding the calling card presented in evidence by petitioner. lawyers best advertise!ent is a well!erited reputation &or pro&essional capacityand "delity to trust based on his character and conduct.E2% For this reason, lawyersare only allowed to announce their services by publication in reputable law lists oruse o& si!ple pro&essional cards.Bro&essional calling cards !ay only contain the &ollowing details5

;a= lawyers na!eG;b= na!e o& the law "r! with which he is connectedG;c= addressG;d= telephone nu!ber and;e= special branch o& law practiced.E2(

abianos calling card contained the phrase =/t) "!"c/! !00/0t!"ce. Thephrase was clearly used to entice clients ;who already had representation= tochange counsels with a pro!ise o& loans to "nance their legal actions. #oney wasdangled to lure clients away &ro! their original lawyers, thereby taking advantage

%1

















o& their "nancial distress and e!otional vulnerability. This crass co!!ercialis!degraded the integrity o& the bar and deserved no place in the legal pro&ession.owever, in the absence o& substantial evidence to prove his culpability, the >ourtis not prepared to rule that respondent was personally and directly responsible &orthe printing and distribution o& abianos calling cards.

&ERE(ORE, respondent tty. Cico!edes Tolentino &or violating 8ules 1.0, 2.0,(.2 and 16.+ and >anon 0 o& the >ode o& Bro&essional 8esponsibility and :ection2%, 8ule 10( o& the 8ules o& >ourt is hereby SS*EN$E$ ro? t)e @r!ct/ce o != or ! @er/o# o o"e e!r e?ective i!!ediately &ro! receipt o& this resolution.e is S+ERNL: ARNE$ that a repetition o& the sa!e or si!ilar acts in the &utureshall be dealt with !ore severely. et a copy o& this 8esolution be !ade part o& his records in the )@ce o& the 3ar>on"dant, :upre!e >ourt o& the Bhilippines, and be &urnished to the Integrated 3aro& the Bhilippines and the )@ce o& the >ourt d!inistrator to be circulated to allcourts.

SO OR$ERE$.

8<CT) >. >)8)C

ssociate Dustice

-< >)C>H85

RE:NA+O S. *NO>hie& Dustice>hairperson

EN BANC

$IANA RAMOS,

Co?@!/"!"t,

. >. Co. 6%((

;For!erly, >3* 0(2=

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- e r 0 0 -

Bresent5

BHC), $.%.,RHI:H#3IC,

MC8<::CTI),:C*)AHTI<88<P,>8BI),H:T8I#8TIC<P,>)8)C,>8BI) #)8<:,P>HC,

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8>I,

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8<M<:, %%.

A++:. 'OSE R. IMBANG,

Re0@o"#e"t.

Bro!ulgated5

ugust 20, 2%

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R E S O L + I O N

*ER CRIAM>

This is a co!plaint &or disbar!ent or suspensionE1 against tty. Dose 8. I!bang &or!ultiple violations o& the >ode o& Bro&essional 8esponsibility. +&E COM*LAIN+

%0

http://sc.judiciary.gov.ph/jurisprudence/2007/august2007/6788.htm#_ftn1






In 1992, the co!plainant *iana 8a!os sought the assistance o& respondent

tty. Dose 8. I!bang in "ling civil and cri!inal actions against the spouses 8oueand <lenita Dovellanos.E2 :he gave respondent B(,$ as attorney's &ees but thelatter issued a receipt &or B$, only.E0

The co!plainant tried to attend the scheduled hearings o& her cases against the Dovellanoses. )ddly, respondent never allowed her to enter the courtroo! andalways told her to wait outside. e would then co!e out a&ter several hours toin&or! her that the hearing had been cancelled and rescheduled. E+ This happenedsi/ ti!es and &or each appearance in court, respondent charged her B0$. &ter si/ consecutive postpone!ents, the co!plainant beca!e suspicious. :hepersonally inuired about the status o& her cases in the trial courts o& 3ian and :anBedro, aguna. :he was shocked to learn that respondent never "led any caseagainst the Dovellanoses and that he was in &act e!ployed in the Bublic ttorney's)@ce ;B)=.E$

RES*ON$EN+<S $E(ENSEccording to respondent, the co!plainant knew that he was in the govern!entservice &ro! the very start. In &act, he "rst !et the co!plainant when he was still adistrict attorney in the >iti4en's egal ssistance )@ce ;predecessor o& B)= o& 3ian, aguna and was assigned as counsel &or the co!plainant's daughter.E6

In 1992, the co!plainant reuested hi! to help her "le an action &or da!agesagainst the Dovellanoses.E% 3ecause he was with the B) and aware that theco!plainant was not an indigent, he declined.E( Cevertheless, he advised theco!plainant to consult tty. Ti! Hngson, a relative who was a private practitioner.E9 tty. Hngson, however, did not accept the co!plainant's case as she was unable

to co!e up with the acceptance &ee agreed upon. E1 Cotwithstanding tty. Hngson'sre&usal, the co!plainant allegedly re!ained ada!ant. :he insisted on suing the

Dovellanoses. &raid that she !ight spend the cash on hand, the co!plainant askedrespondent to keep the B$, while she raised the balance o& tty. Hngson'sacceptance &ee.E11

year later, the co!plainant reuested respondent to issue an antedated receiptbecause one o& her daughters asked her to account &or the B$, she hadpreviously given the respondent &or sa&ekeeping.E12 3ecause the co!plainant was a&riend, he agreed and issued a receipt dated Duly 1$, 1992.E10

)n pril 1$, 199+, respondent resigned &ro! the B). E1+ &ew !onths later or in:epte!ber 199+, the co!plainant again asked respondent to assist her in suing the

Dovellanoses. Inas!uch as he was now a private practitioner, respondent agreed toprepare the co!plaint. owever, he was unable to "nali4e it as he lost contact withthe co!plainant.E1$

RECOMMEN$A+ION O( +&E IB*

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cting on the co!plaint, the >o!!ission on 3ar *iscipline ;>3*= o& the Integrated3ar o& the Bhilippines ;I3B= where the co!plaint was "led, received evidence &ro!the parties. )n Cove!ber 22, 2+, the >3* sub!itted its report andreco!!endation to the I3B 3oard o& overnors.E16

The >3* noted that the receiptE1% was issued on Duly 1$, 1992 when respondent was

still with the B).E1( It also noted that respondent described the co!plainant as ashrewd businesswo!an and that respondent was a seasoned trial lawyer. For thesereasons, the co!plainant would not have accepted a spurious receipt nor wouldrespondent have issued one. The >3* reected respondent's clai! that he issuedthe receipt to acco!!odate a &riend's reuest.E19 It &ound respondent guilty o& violating the prohibitions on govern!ent lawyers &ro! accepting private cases andreceiving lawyer's &ees other than their salaries.E2 The >3* concluded thatrespondent violated the &ollowing provisions o& the >ode o& Bro&essional8esponsibility5

8ule 1.1. lawyer shall not engage in unlaw&ul, dishonest, i!!oral ordeceit&ul conduct.

8ule 16.1. lawyer shall account &or all !oney or property collectedor received &or or &ro! a client. 8ule 1(.1. lawyer should not undertake a legal service which heknows or should know that he is not uali"ed to render. owever, he!ay render such service i&, with the consent o& his client, he can obtainas collaborating counsel a lawyer who is co!petent on the !atter.

Thus, it reco!!ended respondent's suspension &ro! the practice o& law &or threeyears and ordered hi! to i!!ediately return to the co!plainant the a!ount

o& B$, which was substantiated by the receipt.E21

The I3B 3oard o& overnors adopted and approved the "ndings o& the >3* thatrespondent violated 8ules 1.1, 16.1 and 1(.1 o& the >ode o& Bro&essional8esponsibility. It, however, !odi"ed the >3*'s reco!!endation with regard to therestitution o& B$, by i!posing interest at the legal rate, reckoned &ro! 199$ or,in case o& respondent's &ailure to return the total a!ount, an additional suspensiono& si/ !onths.E22

+&E COR+<S RLING

-e adopt the "ndings o& the I3B with !odi"cations. awyers are e/pected to conduct the!selves with honesty and integrity. E20 #orespeci"cally, lawyers in govern!ent service are e/pected to be !ore conscientiouso& their actuations as they are subect to public scrutiny. They are not only !e!berso& the bar but also public servants who owe ut!ost "delity to public service. E2+

%$





















overn!ent e!ployees are e/pected to devote the!selves co!pletely to publicservice. For this reason, the private practice o& pro&ession is prohibited. :ection %;b=;2= o& the >ode o& <thical :tandards &or Bublic )@cials and <!ployees provides5

:ection %. 'rohibited )cts and "ransactions. In addition to acts ando!issions o& public o@cials and e!ployees now prescribed in the

>onstitution and e/isting laws, the &ollowing constitute prohibited actsand transactions o& any public o@cial and e!ployee and are herebydeclared unlaw&ul5

/// /// ///

;b= )utside e!ploy!ent and other activities related thereto, public

o@cials and e!ployees during their incu!bency shall not5

/// /// ///

;1= <ngage in the private practice o& pro&ession unless authori4ed by

the >onstitution or law, provided that such practice will not conNict

with their o@cial &unction.E2$

Thus, lawyers in govern!ent service cannot handle private cases &or they aree/pected to devote the!selves &ullti!e to the work o& their respective o@ces. In this instance, respondent received B$, &ro! the co!plainant and issued areceipt on Duly 1$, 1992 while he was still connected with the B). cceptance o& !oney &ro! a client establishes an attorneyclient relationship.E26 8espondent'sad!ission that he accepted !oney &ro! the co!plainant and the receipt con"r!ed

the presence o& an attorneyclient relationship between hi! and the co!plainant.#oreover, the receipt showed that he accepted the co!plainant's case while he wasstill a govern!ent lawyer. 8espondent clearly violated the prohibition on privatepractice o& pro&ession. ggravating respondent's wrongdoing was his receipt o& attorney's &ees. The B)was created &or the purpose o& providing &ree legal assistance to indigent litigants.

%6







E2% :ection 1+;0=, >hapter $, Title III, 3ook A o& the 8evised d!inistrative >odeprovides5

:ec. 1+. ///

The B) shall be the principal law o@ce o& the overn!ent in

e/tending &ree legal assistance to indigent persons in cri!inal, civil,labor, ad!inistrative and other uasiudicial cases. E2(

s a B) lawyer, respondent should not have accepted attorney's &ees &ro! theco!plainant as this was inconsistent with the o@ce's !ission.E29 8espondentviolated the prohibition against accepting legal &ees other than his salary. >anon 1 o& the >ode o& Bro&essional 8esponsibility provides5

>C)C 1. -M<8 : HB)* T< >)C:TITHTI)C, )3<M T<

-: )F T< C* C* B8)#)T< 8<:B<>T F)8 T< - C* <B8)><::<:.

<very lawyer is obligated to uphold the law.E0 This undertaking includes theobservance o& the above!entioned prohibitions blatantly violated by respondentwhen he accepted the co!plainant's cases and received attorney's &ees inconsideration o& his legal services. >onseuently, respondent's acceptance o& thecases was also a breach o& 8ule 1(.1 o& the >ode o& Bro&essional 8esponsibilitybecause the prohibition on the private practice o& pro&ession disuali"ed hi! &ro!acting as the co!plainant's counsel. side &ro! disregarding the prohibitions against handling private cases and

accepting attorney's &ees, respondent also surreptitiously deceived the co!plainant.Cot only did he &ail to "le a co!plaint against the Dovellanoses ;which in the "rstplace he should not have done=, respondent also led the co!plainant to believe thathe really "led an action against the Dovellanoses. e even !ade it appear that thecases were being tried and asked the co!plainant to pay his appearance &ees &orhearings that never took place. These acts constituted dishonesty, a violation o& thelawyer's oath not to do any &alsehood.E01

8espondent's conduct in o@ce &ell short o& the integrity and good !oral characterreuired o& all lawyers, specially one occupying a public o@ce. awyers in publico@ce are e/pected not only to re&rain &ro! any act or o!ission which tend to lessenthe trust and con"dence o& the citi4enry in govern!ent but also uphold the dignityo& the legal pro&ession at all ti!es and observe a high standard o& honesty and &airdealing. govern!ent lawyer is a keeper o& public &aith and is burdened with a highdegree o& social responsibility, higher than his brethren in private practice.E02

There is, however, insu@cient basis to "nd respondent guilty o& violating 8ule 16.1o& the >ode o& Bro&essional 8esponsibility. 8espondent did not hold the !oney &orthe bene"t o& the co!plainant but accepted it as his attorney's &ees. e neither heldthe a!ount in trust &or the co!plainant ;such as an a!ount delivered by the sheri?

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in satis&action o& a udg!ent obligation in &avor o& the client=E00 nor was it given tohi! &or a speci"c purpose ;such as a!ounts given &or "ling &ees and bail bond=.E0+ Cevertheless, respondent should return the B$, as he, a govern!ent lawyer,was not entitled to attorney's &ees and not allowed to accept the!.E0$

&ERE(ORE, tty. Dose 8. I!bang is &ound guilty o& violating the lawyers oath,>anon 1, 8ule 1.1 and >anon 1(, 8ule 1(.1 o& the >ode o& Bro&essional

8esponsibility. ccordingly, he is hereby $ISBARRE$ &ro! the practice o& law andhis na!e is OR$ERE$ S+RICFEN &ro! the 8oll o& ttorneys. e is also ordered toreturn to co!plainant the a!ount o& B$, with interest at the legal rate, reckoned&ro! 199$, within 1 days &ro! receipt o& this resolution.

et a copy o& this resolution be attached to the personal records o& respondent in the )@ce o& the 3ar >on"dant and notice o& the sa!e be served onthe Integrated 3ar o& the Bhilippines and on the )@ce o& the >ourt d!inistrator &orcirculation to all courts in the country.

SO OR$ERE$.

RE:NA+O S. *NO>hie& Dustice

IL(RE$O M. CA+, .>. Co. $%0(Co?@!/"!"t,Bresent5

BHC), $.%., $hairperson,:C*)AHTI<88<P,- e r 0 0 - >)8)C,

P>HC and<)C8*)*< >:T8), %%.

A++:. %ICEN+E G. RELLOSA,

%(









Re0@o"#e"t. Bro!ulgated5February 19, 2(

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

R E S O L + I O N

CORONA, J.>

>o!plainant -il&redo #. >atu is a coowner o& a lot E1 and the building erectedthereon located at 9$9 :an ndres :treet, #alate, #anila. is !other and brother,8egina >atu and ntonio >atu, contested the possession o& <li4abeth >. *ia4>atuE2 and ntonio BastorE0 o& one o& the units in the building. The latter ignoredde!ands &or the! to vacate the pre!ises. Thus, a co!plaint was initiated against

the! in the Lupong "agapamayapa o& 3arangay %20, Pone %9 o& the $th

*istrict o& #anilaE+ where the parties reside.

8espondent, as punong barangay o& 3arangay %20, su!!oned the parties to

conciliation !eetings.E$ -hen the parties &ailed to arrive at an a!icable settle!ent,respondent issued a certi"cation &or the "ling o& the appropriate action in court.

Therea&ter, 8egina and ntonio "led a co!plaint &or eect!ent against <li4abethand Bastor in the #etropolitan Trial >ourt o& #anila, 3ranch 11. 8espondent enteredhis appearance as counsel &or the de&endants in that case. 3ecause o& this,co!plainant "led the instant ad!inistrative co!plaint,E6 clai!ing that respondentco!!itted an act o& i!propriety as a lawyer and as a public o@cer when he stood

as counsel &or the de&endants despite the &act that he presided over the conciliationproceedings between the litigants as punong barangay . In his de&ense, respondent clai!ed that one o& his duties as punong barangay wasto hear co!plaints re&erred to the barangays Lupong "agapamayapa. s such, heheard the co!plaint o& 8egina and ntonio against <li4abeth and Bastor. s head o& the Lupon, he per&or!ed his task with ut!ost obectivity, without bias or partialitytowards any o& the parties. The parties, however, were not able to a!icably settletheir dispute and 8egina and ntonio "led the eect!ent case. It was then that<li4abeth sought his legal assistance. e acceded to her reuest. e handled hercase &or &ree because she was "nancially distressed and he wanted to prevent theco!!ission o& a patent inustice against her.

The co!plaint was re&erred to the Integrated 3ar o& the Bhilippines ;I3B= &orinvestigation, report and reco!!endation. s there was no &actual issue to threshout, the I3Bs >o!!ission on 3ar *iscipline ;>3*= reuired the parties to sub!ittheir respective position papers. &ter evaluating the contentions o& the parties, theI3B>3* &ound su@cient ground to discipline respondent.E%

ccording to the I3B>3*, respondent ad!itted that, as punong barangay , he

presided over the conciliation proceedings and heard the co!plaint o& 8egina and

%9

http://sc.judiciary.gov.ph/jurisprudence/2008/feb2008/5738.htm#_ftn1
















ntonio against <li4abeth and Bastor. :ubseuently, however, he represented<li4abeth and Bastor in the eect!ent case "led against the! by 8egina andntonio. In the course thereo&, he prepared and signed pleadings including theanswer with counterclai!, pretrial brie&, position paper and notice o& appeal. 3y sodoing, respondent violated 8ule 6.0 o& the >ode o& Bro&essional 8esponsibility5

8ule 6.0 lawyer shall not, a&ter leaving govern!ent service,accept engage!ent or e!ploy!ent in connection with any !atter inwhich he intervened while in said service. Further!ore, as an elective o@cial, respondent contravened the prohibition

under :ection %;b=;2= o& 8 6%105E(

:<>. %. 'rohibited )cts and "ransactions. In addition to acts and

o!issions o& public o@cials and e!ployees now prescribed in the>onstitution and e/isting laws, the &ollowing shall constitute prohibitedacts and transactions o& any public o@cial ands e!ployee and arehereby declared to be unlaw&ul5

/// /// /// ;b= ;utside employment and other activities related thereto. Bublico@cials and e!ployees during their incu!bency shall not5 /// /// ///

;2= E"!e /" t)e @r/!te @r!ct/ce o @roe00/o" "e00!t)or/e# b t)e Co"0t/tt/o" or !=, provided that suchpractice will not conNict or tend to conNict with their o@cial&unctionsG /// ;e!phasis supplied=

ccording to the I3B>3*, respondents violation o& this prohibition constituteda breach o& >anon 1 o& the >ode o& Bro&essional 8esponsibility5

>C)C 1. -M<8 : HB)* T< >)C:TITHTI)C, OBE: +&ELAS O( +&E LAN$, *ROMO+E RES*EC+ (OR LA C* <B8)><::<:. ;e!phasis supplied=For these in&ractions, the I3B>3* reco!!ended the respondents suspension

&ro! the practice o& law &or one !onth with a stern warning that the co!!ission o& the sa!e or si!ilar act will be dealt with !ore severely.E9 This was adopted andapproved by the I3B 3oard o& overnors. E1

-e !odi&y the &oregoing "ndings regarding the transgression o& respondent

as well as the reco!!endation on the i!posable penalty.

RLE 6.3 O( +&E CO$EO( *RO(ESSIONAL RES*ONSIBILI+: A**LIES ONL: +O (ORMERGO%ERNMEN+ LA:ERS

(









8espondent cannot be &ound liable &or violation o& 8ule 6.0 o& the >ode o&

Bro&essional 8esponsibility. s worded, that 8ule applies only to a lawyer whohas left government service and in connection with any !atter in which heintervened while in said service. In '$(( v. 7andiganbayan,E11 we ruled that 8ule6.0 @ro)/b/t0 or?er oer"?e"t !=er0 &ro! accepting engage!ent or

e!ploy!ent in connection with any !atter in which Ethey had intervened while insaid service.

8espondent was an incu!bent punong barangay at the ti!e he co!!itted

the act co!plained o&. There&ore, he was not covered by that provision.

SEC+ION 9 O( RA 716, NO+ SEC+ION72B2 O( RA 6713, GO%ERNS +&E*RAC+ICE O( *RO(ESSION O( ELEC+I%E

LOCAL GO%ERNMEN+ O((ICIALS

:ection %;b=;2= o& 8 6%10 prohibits public o@cials and e!ployees, duringtheir incu!bency, &ro! engaging in the private practice o& their pro&ession unlessauthori4ed by the >onstitution or law, provided that such practice will not conNict ortend to conNict with their o@cial &unctions. This is the general law which applies toall public o@cials and e!ployees.

For elective local govern!ent o@cials, :ection 9 o& 8 %16E12 governs5

:<>. 9. 'ractice of 'rofession. ;a= ll governors, city and

!unicipal !ayors are prohibited &ro! practicing their pro&ession orengaging in any occupation other than the e/ercise o& their &unctions

as local chie& e/ecutives.

;b= 7anggunian !e!bers !ay practice their pro&essions,

engage in any occupation, or teach in schools e/cept during

session hours5 'rovided, That sanggunian !e!bers who are

!e!bers o& the 3ar shall not5

;1= ppear as counsel be&ore any court in any civil case

wherein a local govern!ent unit or any o@ce, agency, or

instru!entality o& the govern!ent is the adverse partyG

;2= ppear as counsel in any cri!inal case wherein an

o@cer or e!ployee o& the national or local govern!ent is

accused o& an o?ense co!!itted in relation to his o@ceG

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;0= >ollect any &ee &or their appearance in ad!inistrative

proceedings involving the local govern!ent unit o& which he is

an o@cialG and

;+= Hse property and personnel o& the overn!ent e/cept

when the sanggunian !e!ber concerned is de&ending theinterest o& the overn!ent.

;c= *octors o& !edicine !ay practice their pro&ession even

during o@cial hours o& work only on occasions o&

e!ergency5 'rovided, That the o@cials concerned do not derive

!onetary co!pensation there&ro!.

This is a special provision that applies speci"cally to the practice o&

pro&ession by elective local o@cials. s a special law with a de"nite scope ;that is,

the practice o& pro&ession by elective local o@cials=, it constitutes an e/ception to:ection %;b=;2= o& 8 6%10, the general law on engaging in the private practice o& pro&ession by public o@cials and e!ployees. Lex specialibus derogat generalibus.E10

Hnder 8 %16, elective local o@cials o& provinces, cities, !unicipalities and

barangays are the &ollowing5 the governor, the vice governor and !e!bers o& thesangguniang panlalawigan &or provincesG the city !ayor, the city vice !ayor andthe !e!bers o& the sangguniang panlungsod &or citiesG the !unicipal !ayor, the!unicipal vice !ayor and the !e!bers o& the sangguniang bayan &or !unicipalitiesand the punong barangay , the !e!bers o& the sangguniang barangay and the!e!bers o& the sangguniang #abataan &or barangays.

)& these elective local o@cials, governors, city !ayors and !unicipal !ayorsare prohibited &ro! practicing their pro&ession or engaging in any occupation otherthan the e/ercise o& their &unctions as local chie& e/ecutives. This is because theyare reuired to render &ull ti!e service. They should there&ore devote all their ti!eand attention to the per&or!ance o& their o@cial duties.

)n the other hand, !e!bers o& the sangguniang panlalawigan, sangguniang

panlungsod or sangguniang bayan !ay practice their pro&essions, engage in anyoccupation, or teach in schools e/cept during session hours. In other words, they!ay practice their pro&essions, engage in any occupation, or teach in schoolsoutside their session hours. Hnlike governors, city !ayors and !unicipal!ayors, !e!bers o& the sangguniang panlalawigan, sangguniang

panlungsod or sangguniang bayan are reuired to hold regular sessions only at leastonce a week.E1+ :ince the law itsel& grants the! the authority to practice theirpro&essions, engage in any occupation or teach in schools outside session hours,there is no longer any need &or the! to secure prior per!ission or authori4ation&ro! any other person or o@ce &or any o& these purposes.

-hile, as already discussed, certain local elective o@cials ;like governors,

!ayors, provincial board !e!bers and councilors= are e/pressly subected to a total

(2







or partial proscription to practice their pro&ession or engage in any occupation, nosuch interdiction is !ade on the punong barangay and the !e!bers o& the sangguniang barangay .-xpressio unius est exclusio alterius.E1$ :ince they aree/cluded &ro! any prohibition, the presu!ption is that they are allowed to practicetheir pro&ession. nd this stands to reason because they are not !andated to serve&ull ti!e. In &act, the sangguniang barangay is supposed to hold regular sessions

only twice a !onth.E16

ccordingly, as punong barangay , respondent was not &orbidden to practice

his pro&ession. owever, he should have procured prior per!ission or authori4ation&ro! the head o& his *epart!ent, as reuired by civil service regulations.

A LA:ER IN GO%ERNMEN+ SER%ICE&O IS NO+ *RO&IBI+E$ +O *RAC+ICELA MS+ SECRE *RIOR A+&ORI+: (ROM +&E &EA$ O( &IS $E*AR+MEN+

civil service o@cer or e!ployee whose responsibilities do not reuire his ti!e tobe &ully at the disposal o& the govern!ent can engage in the private practice o& lawonly with the written per!ission o& the head o& the depart!ent concerned.E1% :ection 12, 8ule OAIII o& the 8evised >ivil :ervice 8ules provides5

:ec. 12. No oJcer or e?@oee 0)! e"!e #/rect /"!" private business, vocation, or @roe00/o" or be connected withany co!!ercial, credit, agricultural, or industrial undertaking =/t)ot! =r/tte" @er?/00/o" ro? t)e )e!# o t)e$e@!rt?e"t5 'rovided, That this prohibition will be absolute in thecase o& those o@cers and e!ployees whose duties and responsibilitiesreuire that their entire ti!e be at the disposal o& the

overn!entG 'rovided, further , That i& an e!ployee is grantedper!ission to engage in outside activities, ti!e so devoted outside o& o@ce hours should be "/ed by the agency to the end that it will noti!pair in any way the e@ciency o& the o@cer or e!ployee5nd provided, nally , that no per!ission is necessary in the case o& invest!ents, !ade by an o@cer or e!ployee, which do not involvereal or apparent conNict between his private interests and publicduties, or in any way inNuence hi! in the discharge o& his duties, andhe shall not take part in the !anage!ent o& the enterprise or beco!ean o@cer o& the board o& directors. ;e!phasis supplied=

s punong barangay , respondent should have there&ore obtained the prior

written per!ission o& the :ecretary o& Interior and ocal overn!ent be&ore heentered his appearance as counsel &or <li4abeth and Bastor. This he &ailed to do.

The &ailure o& respondent to co!ply with :ection 12, 8ule OAIII o& the 8evised >ivil:ervice 8ules constitutes a violation o& his oath as a lawyer5 to obey the laws.awyers are servants o& the law, vires legis, !en o& the law. Their para!ount dutyto society is to obey the law and pro!ote respect &or it. To underscore the pri!acy

(0









and i!portance o& this duty, it is enshrined as the "rst canon o& the >ode o& Bro&essional 8esponsibility. In acting as counsel &or a party without "rst securing the reuired writtenper!ission, respondent not only engaged in the unauthori4ed practice o& law butalso violated civil service rules which is a breach o& 8ule 1.1 o& the >ode o&

Bro&essional 8esponsibility58ule 1.1 A !=er 0)! "ot e"!e /" "!=, dishonest,

i!!oral or deceit&ul co"#ct. ;e!phasis supplied=

For not living up to his oath as well as &or not co!plying with the e/acting ethicalstandards o& the legal pro&ession, respondent &ailed to co!ply with >anon % o& the>ode o& Bro&essional 8esponsibility5

>C)C %. A LA:ER S&ALL A+ ALL +IMES *&OL$ +&EIN+EGRI+: AN$ +&E $IGNI+: O( +&E LEGAL *RO(ESSION C*:HBB)8T T< >TIAITI<: )F T< ICT<8T<* 38. ;e!phasis

supplied=

Indeed, a lawyer who disobeys the law disrespects it. In so doing, hedisregards legal ethics and disgraces the dignity o& the legal pro&ession.

Bublic con"dence in the law and in lawyers !ay be eroded by the

irresponsible and i!proper conduct o& a !e!ber o& the bar. E1( <very lawyer shouldact and co!port hi!sel& in a !anner that pro!otes public con"dence in theintegrity o& the legal pro&ession.E19

!e!ber o& the bar !ay be disbarred or suspended &ro! his o@ce as an

attorney &or violation o& the lawyers oathE2 andLor &or breach o& the ethics o& the

legal pro&ession as e!bodied in the >ode o& Bro&essional 8esponsibility. &ERE(ORE, respondent tty. Aicente . 8ellosa is hereby &ound GIL+: o& pro&essional !isconduct &or violating his oath as a lawyer and >anons 1 and % and8ule 1.1 o& the >ode o& Bro&essional 8esponsibility. e isthere&ore SS*EN$E$ ro? t)e @r!ct/ce o != &or a period o& si/ !onthse?ective &ro! his receipt o& this resolution. e is sternly ARNE$ that anyrepetition o& si!ilar acts shall be dealt with !ore severely. 8espondent is strongly advised to look up and take to heart the !eaning o& theword delicade2a. et a copy o& this resolution be &urnished the )@ce o& the 3ar >on"dant and enteredinto the records o& respondent tty. Aicente . 8ellosa. The )@ce o& the >ourtd!inistrator shall &urnish copies to all the courts o& the land &or their in&or!ationand guidance.

SO OR$ERE$.

(+









8<CT) >. >)8)C

ssociate Dustice

-< >)C>H85

RE:NA+O S. *NO>hie& Dustice>hairperson

($



G.R. No0. 15189-1. A@r/ 1, 5

*RESI$EN+IAL COMMISSION ON GOO$ GO%ERNMEN+ 2*CGG, petitioner,

vs. SAN$IGANBA:AN 2(/t) $//0/o", LCIO C. +AN, CARMEN F&AO

+AN, (LORENCIO +. SAN+OS, NA+I%I$A$ *. SAN+OS, $OMINGO C&A,+AN &I NEE, MARIANO +AN ENG LIAN, ES+A+E O( BENI+O +AN FEE

&IONG 2re@re0e"te# b +ARCIANA C. +AN, (LORENCIO N. SAN+OS,

'R., &ARR: C. +AN, +AN ENG C&AN, C&NG *OE FEE, MARIANO F&OO,

MANEL F&OO, MIGEL F&OO, 'AIME F&OO, ELIZABE+& F&OO,

CELSO RANOLA, ILLIAM +. ONG, ERNES+O B. LIM, BEN'AMIN +.

ALBACI+A, ILL: CO, ALLIE$ BANFING COR*., ALLIE$ LEASING AN$

(INANCE COR*ORA+ION, ASIA BREER:, INC., BASIC &OL$INGS

COR*., (OREMOS+ (ARMS, INC., (OR+NE +OBACCO COR*.,

GRAN$S*AN $E%ELO*MEN+ COR*., &IMMEL IN$S+RIES, IRIS

&OL$INGS AN$ $E%ELO*MEN+ COR*., 'EEL &OL$INGS, INC.,

MAN(AC+RING SER%ICES AN$ +RA$E COR*., MARANA &O+ELS

AN$ RESOR+ COR*., NOR+&ERN +OBACCO RE$R:ING *LAN+,

*ROGRESSI%E (ARMS, INC., S&ARE&OL$INGS, INC., SI*ALA: +RA$ING

COR*., %IRGO &OL$INGS $E%ELO*MEN+ COR*., !"# A++:. ES+ELI+O

*. MEN$OZA, respondents.

$ E C I S I O N

*NO, J.>

This case is prima impressiones and it is weighted with signi"cance &or itconcerns on one hand, the e?orts o& the 3ar to upgrade the ethics o& lawyers in

govern!ent service and on the other, its e?ect on the right o& govern!ent to recruit

co!petent counsel to de&end its interests.

In 1976, eneral 3ank and Trust >o!pany ;<C3CQ= encountered "nancial

di@culties. <C3CQ had e/tended considerable "nancial support to Filcapital

*evelop!ent >orporation causing it to incur daily overdrawings on its current

(6



account with the >entral 3ank.E1 It was later &ound by the >entral 3ank that

<C3CQ had approved various loans to directors, o@cers, stockholders and related

interests totaling B1%2.0 !illion, o& which $9 was classi"ed as doubt&ul and B.$$

!illion as uncollectible.E2 s a bailout, t)e Ce"tr! B!"; ete"#e# e?ere"c

o!"0 to GENBANF =)/c) re!c)e# ! tot! o *31 ?//o".E0 *espite the !ega

loans, <C3CQ &ailed to recover &ro! its "nancial woes. )n #arch 2$, 19%%,the Ce"tr! B!"; /00e# ! re0ot/o" #ec!r/" GENBANF /"0oe"t and

unable to resu!e business with sa&ety to its depositors, creditors and the general

public, and or#er/" /t0 //#!t/o".E+ @b/c b/##/" o GENBANF0

!00et0 was held &ro! #arch 26 to 2(, 19%%, wherein the ucio Tan group sub!itted

the winning bid.E$ :ubseuently, or?er So/c/tor Ge"er! E0te/to *. Me"#o!

e# ! @et/t/o" with the then >ourt o& First Instance @r!/" or t)e

!00/0t!"ce and supervision o& the court in <C3CQs liuidation as !andated by

:ection 29 o& 8epublic ct Co. 26$.

In February 19(6, the <*: I revolution toppled the #arcos govern!ent. )ne o&

the "rst acts o& Bresident >ora4on >. uino was to establish the Bresidential

>o!!ission on ood overn!ent ;B>= to recover the alleged illgotten wealth o&

&or!er Bresident Ferdinand #arcos, his &a!ily and his cronies. Bursuant to this

!andate, the B>, on Duly 1%, 19(%, "led with the Sandi%an"a!an a co!plaint

&or reer0/o", reco"e!"ce, re0t/tt/o", !cco"t/" !"# #!?!e0 against

respondents ucio Tan, >ar!en Qhao Tan, Florencio T. :antos, Catividad B. :antos,

*o!ingo >hua, Tan ui Cee, #ariano Tan <ng ian, <state o& 3enito Tan Qee iong,

Florencio C. :antos, Dr., arry >. Tan, Tan <ng >han, >hung Boe Qee, #ariano Qhoo,

#anuel Qhoo, #iguel Qhoo, Dai!e Qhoo, <li4abeth Qhoo, >elso 8anola, -illia! T.

-ong, <rnesto 3. i!, 3ena!in T. lbacita, -illy >o, llied 3anking >orporation

;llied 3ank=, llied easing and Finance >orporation, sia 3rewery, Inc., 3asicoldings >orp., Fore!ost Far!s, Inc., Fortune Tobacco >orporation, randspan

*evelop!ent >orp., i!!el Industries, Iris oldings and *evelop!ent >orp., Dewel

oldings, Inc., #anu&acturing :ervices and Trade >orp., #aranaw otels and 8esort

>orp., Corthern Tobacco 8edrying Blant, Brogressive Far!s, Inc., :hareholdings, Inc.,

:ipalay Trading >orp., Airgo oldings J *evelop!ent >orp., ;collectively re&erred to

herein as respondents Tan, et al.=, then Bresident Ferdinand <. #arcos, I!elda 8.

#arcos, Ban"lo ). *o!ingo, >esar Pala!ea, *on Ferry and regorio icaros. +)e

c!0e =!0 #oc;ete# !0 C// C!0e No. 5 o& the :econd *ivision o&

theSandi%an"a!an.E6 In connection therewith, the B> issued several =r/t0 o

0ee0tr!t/o" on properties allegedly acuired by the abovena!ed persons bytaking advantage o& their close relationship and inNuence with &or!er Bresident

#arcos.

8espondents Tan, et al. repaired to this >ourt and "led petitions &or certiorari,

prohibition and inunction to nulli&y, a!ong others, the writs o& seuestration issued

by the B>.E% &ter the "ling o& the parties co!!ents, this >ourt re&erred the cases

to the Sandi%an"a!an &or proper disposition. These cases were docketed as C//

(%

http://sc.judiciary.gov.ph/jurisprudence/2005/apr2005/151809_12.htm#_ftn1
















C!0e No0. 96-99. In all these cases, respondents Tan, et al. were represented

by their counsel, &or!er :olicitor eneral <stelito B. #endo4a, who has then

resu!ed his private practice o& law.

O" (ebr!r 5, 1991, the B> "led ?ot/o"0 to #/0!/ respondent

#endo4a as counsel &or respondents Tan, et al. with the Seco"#

$//0/o" o t)e Sandi%an"a!an in >ivil >ase Cos. $E( and 9699.E9 The !otions

alleged that respondent #endo4a, as then :olicitor eneralE1 and counsel to

>entral 3ank, !ct/e /"tere"e# in the liuidation o& <C3CQ, which was

subseuently acuired by respondents Tan, et al. and beca!e llied 3anking

>orporation. 8espondent #endo4a allegedly intervened in the acuisition o&

<C3CQ by respondents Tan, et al. when, in his capacity as then :olicitor eneral,

he !#/0e# the >entral 3anks o@cials on the @roce#re to bring about <C3CQs

liuidation and appeared as counsel &or the >entral 3ank in connection with its

petition &or assistance in the liuidation o& <C3CQ which he "led with the >ourt o&

First Instance ;now 8egional Trial >ourt= o& #anila and was docketed as :pecial

Broceeding Co. 1%(12. The !otions to disuali&y invoked Re 6.3 o t)e Co#e

o *roe00/o"! Re0@o"0/b//t. 8ule 6.0 @ro)/b/t0 or?er oer"?e"t

!=er0 &ro! accepting engage!ent or e!ploy!ent in connection with any !atter

in which he had intervened while in said service.

)n A@r/ , 1991 the :econd *ivision o& the Sandi%an"a!an issued a

resolution #e"/" B>s !otion to disuali&y respondent #endo4a in >ivil >ase

Co. $.E11 It &ound that the B> &ailed to prove the e/istence o& an inconsistency

between respondent #endo4as &or!er &unction as :olicitor eneral and his present

e!ploy!ent as counsel o& the ucio Tan group. It noted that respondent #endo4a

did not take a position adverse to that taken on behal& o& the >entral 3ank duringhis ter! as :olicitor eneral.E12 It &urther ruled that respondent #endo4as

appearance as counsel &or respondents Tan, et al. was beyond the oneyear

prohibited period under :ection %;b= o& 8epublic ct Co. 6%10 since he ceased to be

:olicitor eneral in the year 19(6. The said section prohibits a &or!er public o@cial

or e!ployee &ro! practicing his pro&ession in connection with any !atter be&ore the

o@ce he used to be with within one year &ro! his resignation, retire!ent or

separation &ro! public [email protected] The B> did not seek any reconsideration o& the

ruling.E1+

It appears that >ivil >ase Cos. 9699 were tr!"0erre# &ro!the Sandi%an"a!ans :econd *ivision to the Fi&th *ivision.E1$ In its resolution dated

Duly 11, 21, the Fi&th *ivision o& the Sandi%an"a!an denied the other B>s

!otion to disuali&y respondent #endo4a.E16 It !#o@te# the resolution o&

its Seco"# $//0/o" dated pril 22, 1991, and observed that the argu!ents were

the sa!e in substance as the !otion to disuali&y "led in >ivil >ase Co. $. The

B> sought reconsideration o& the ruling but its !otion was denied in its resolution

dated *ece!ber $, 21.E1%

((























ence, the recourse to this >ourt by the B> assailing the resolutions dated

Duly 11, 21 and *ece!ber $, 21 o& the (/t) $//0/o" o

t)e Sandi%an"a!an via a petition &orcertiorari and prohibition under 8ule 6$ o& the

199% 8ules o& >ivil Brocedure.E1( The B> alleged that the (/t) $//0/o" acted

with grave abuse o& discretion a!ounting to lack or e/cess o& urisdiction in issuing

the assailed resolutions contending that5 1= 8ule 6.0 o& the >ode o& Bro&essional8esponsibility prohibits a &or!er govern!ent lawyer &ro! accepting e!ploy!ent in

connection with any !atter in which he intervenedG 2= the prohibition in the 8ule is

not ti!eboundG 0= that >entral 3ank could not waive the obection to respondent

#endo4as appearance on behal& o& the B>G and += the resolution in >ivil >ase Co.

$ was interlocutory, thus res 'udicata does not apply.E19

The petition at bar raises procedural and substantive issues o& law. In view,

however, o& the i!port and i!pact o& 8ule 6.0 o& the >ode o& Bro&essional

8esponsibility to the legal pro&ession and the govern!ent, we shall cut our way and

&orthwith resolve the substantive issue.

I

Sb0t!"t/e I00e

The ;e /00e is whether 8ule 6.0 o& the >ode o& Bro&essional 8esponsibility

applies to respondent #endo4a. gain, the prohibition states5 lawyer shall not,

a&ter leaving govern!ent service, accept engage!ent or e!ploy!ent in connection

with any ?!tter in which he had /"tere"e# while in the said service.

I.A. +)e )/0tor o Re 6.3

proper resolution o& this case necessitates that we trace the )/0tor/c!

/"e!e o& 8ule 6.0 o& the >ode o& Bro&essional 8esponsibility.

In the 0ee"tee"t) !"# e/)tee"t) ce"tr/e0, ethical standards &or lawyers

were pervasive in E"!"# and other parts o& <urope. The early state!ents o&

standards did not rese!ble !odern codes o& conduct. They were not detailed or

collected in one source but surprisingly were co!prehensive &or their ti!e. The

principal thrust o& the standards was directed towards the litigation conduct o&

lawyers. It underscored the central duty o& truth and &airness in litigation as superior

to any obligation to the client. The &or!ulations o& the litigation duties were at ti!es

intricate, including speci"c pleading standards, an obligation to in&or! the court o&

&alsehoods and a duty to e/plore settle!ent alternatives. #ost o& the lawyer's other

basic duties co!petency, diligence, loyalty, con"dentiality, reasonable &ees and

service to the poor originated in the litigation conte/t, but ulti!ately had broader

application to all aspects o& a lawyer's practice.

(9







The &or!s o& lawyer regulation in coo"/! !"# e!r @o0t-reot/o"!r

A?er/c! did not di?er !arkedly &ro! those in <ngland. The colonies and early

states used oaths, statutes, udicial oversight, and procedural rules to govern

attorney behavior. The di?erence &ro! <ngland was in the pervasiveness and

continuity o& such regulation. The standards set in <ngland varied over ti!e, but the

variation in early !erica was &ar greater. The !erican regulation Nuctuated withina single colony and di?ered &ro! colony to colony. #any regulations had the e?ect

o& setting so!e standards o& conduct, but the regulation was sporadic, leaving gaps

in the substantive standards. )nly three o& the traditional core duties can be &airly

characteri4ed as pervasive in the &or!al, positive law o& the colonial and post

revolutionary period5 the duties o& litigation &airness, co!petency and reasonable

&ees.E2

The "/"etee"t) ce"tr has been ter!ed the #!r; !e0 o e! et)/c0 in

the Hnited :tates. 3y !idcentury, !erican legal re&or!ers were "lling the void in

two ways. First, *avid *udley Field, the dra&ter o& the highly inNuential Cew Mork

Field >ode, introduced a new set o& uni&or! standards o& conduct &or lawyers. This

concise state!ent o& eight statutory duties beca!e law in several states in the

second hal& o& the nineteenth century. t the sa!e ti!e, legal educators, such as

*avid o?!an and eorge :harswood, and !any other lawyers were working to

Nesh out the broad outline o& a lawyer's duties. These re&or!ers wrote about legal

ethics in unprecedented detail and thus brought a new level o& understanding to a

lawyer's duties. nu!ber o& !idnineteenth century laws and statutes, other than

the Field >ode, governed lawyer behavior. &ew &or!s o& colonial regulations e.g.,

the do no &alsehood oath and the deceit prohibitions persisted in so!e states.

Brocedural law continued to directly, or indirectly, li!it an attorney's litigation

behavior. The developing law o& agency recogni4ed basic duties o& co!petence,loyalty and sa&eguarding o& client property. <vidence law started to recogni4e with

less euivocation the attorneyclient privilege and its underlying theory o&

con"dentiality. Thus, all o& the core duties, with the likely e/ception o& service to the

poor, had so!e basis in &or!al law. Met, as in the colonial and early post

revolutionary periods, these standards were isolated and did not provide a

co!prehensive state!ent o& a lawyer's duties. The re&or!ers, by contrast, were

!ore co!prehensive in their discussion o& a lawyer's duties, and they actually

ushered a new era in !erican legal ethics.E21

Toward the e"# o t)e "/"etee"t) ce"tr, a new &or! o& ethical standardsbegan to guide lawyers in their practice the bar association code o& legal ethics. The

bar codes were detailed ethical standards &or!ulated by lawyers &or lawyers. They

co!bined the two pri!ary sources o& ethical guidance &ro! the nineteenth century.

ike the acade!ic discourses, the bar association codes gave detail to the statutory

state!ents o& duty and the oaths o& o@ce. Hnlike the acade!ic lectures, however,

the bar association codes retained so!e o& the o@cial i!pri!atur o& the statutes

and oaths. )ver ti!e, the bar association codes beca!e e/tre!ely popular that

9







states adopted the! as binding rules o& law. >ritical to the develop!ent o& the new

codes was the ree!ergence o& bar associations the!selves. ocal bar associations

&or!ed sporadically during the colonial period, but they disbanded by the early

nineteenth century. In the late nineteenth century, bar associations began to &or!

again, picking up where their colonial predecessors had le&t o?. #any o& the new bar

associations, !ost notably the laba!a :tate 3ar ssociation and the !erican 3arssociation, assu!ed on the task o& dra&ting substantive standards o& conduct &or

their !e!bers.E22

I" 1887, A!b!?! beca!e the "rst state with a co!prehensive bar association

code o& ethics. The 1((% laba!a >ode o& <thics was the !odel &or several states

codes, and it was the &oundation &or the !erican 3ar ssociation's ;3= 19(

>anons o& <thics.E20

I" 1917, t)e *)//@@/"e B!r &ound that the oath and duties o& a lawyer were

insu@cient to attain the &ull !easure o& public respect to which the legal pro&ession

was entitled. In that year, the Bhilippine 3ar ssociation adopted as its own, >anons

1 to 02 o& the 3 >anons o& Bro&essional <thics.E2+

A0 e!r !0 194, so!e 3 !e!bers have uestioned the &or! and &unction

o& the canons. !ong their concerns was the reo/" #oor or the process by

which lawyers and others te!porarily enter govern!ent service &ro! private li&e

and then leave it &or large &ees in private practice, where they can e/ploit

in&or!ation, contacts, and inNuence garnered in govern!ent service.E2$ These

concerns were classi"ed as !#er0e-/"tere0t co"/ct0 and co"re"t-/"tere0t

co"/ct0. A#er0e-/"tere0t co"/ct0 e/ist where the !atter in which the &or!er

govern!ent lawyer represents a client in private practice is substantially related toa !atter that the lawyer dealt with while e!ployed by the govern!ent and the

interests o& the current and &or!er are adverse.E26 )n the other hand, co"re"t-

/"tere0t re@re0e"t!t/o" co"/ct0 are uniue to govern!ent lawyers and apply

pri!arily to &or!er govern!ent lawyers.E2% For several years, the 3 atte!pted to

correct and update the canons through new canons, individual a!end!ents and

interpretative opinions. In 192(, the 3 a!ended one canon and added thirteen

new canons.E2( To deal with proble!s peculiar to &or!er govern!ent

lawyers, C!"o" 36 was !inted which disuali"ed the! both &or adverseinterest

conNicts and congruentinterest representation conNicts.E29 The rationale &or

disuali"cation is rooted in a concern that the govern!ent lawyers largelydiscretionary actions would be inNuenced by the te!ptation to take action on behal&

o& the govern!ent client that later could be to the advantage o& parties who !ight

later beco!e private practice clients.E0 C!"o" 36 provides, vi2 .5

06. 8etire!ent &ro! udicial position or public e!ploy!ent

91





















lawyer should not accept e!ploy!ent as an advocate in any !atter upon the

!erits o& which he has previously acted in a udicial capacity.

A !=er, )!/" o"ce )e# @b/c oJce or )!/" bee" /" t)e @b/c

e?@o 0)o# "ot, !ter )/0 ret/re?e"t, !cce@t e?@o?e"t /" co""ect/o"

=/t) !" ?!tter )e )!0 /"e0t/!te# or @!00e# @o" =)/e /" 0c) oJce ore?@o.

)ver the ne/t thirty years, the 3 continued to a!end !any o& the canons and

added >anons +6 and +% in 1900 and 190%, respectively.E01

I" 1946, t)e *)//@@/"e B!r A00oc/!t/o" again adopted as its own >anons 00

to +% o& the 3 >anons o& Bro&essional <thics.E02

3y the ?/##e o t)e t=e"t/et) ce"tr, there was growing consensus that

the 3 >anons needed !ore !eaning&ul revision. In 196+, the 3 Bresidentelect

ewis Bowell asked &or the creation o& a co!!ittee to study the adeuacy and

e?ectiveness o& the 3 >anons. The co!!ittee reco!!ended that the canons

needed substantial revision, in part because the 3 >anons &ailed to distinguish

between the inspirational and the proscriptive and were thus unsuccess&ul in

en&orce!ent. The legal pro&ession in the Hnited :tates likewise observed thatC!"o"

36 o& the 3 >anons o& Bro&essional <thics resulted in unnecessary disuali"cation

o& lawyers &or negligible participation in !atters during their e!ploy!ent with the

govern!ent.

+)e "!/r"e00 o C!"o" 36 co?@ee# ABA to re@!ce /t /" t)e 1969

ABA Mo#e Co#e o *roe00/o"! Re0@o"0/b//t.E00

The basic ethical principlesin the >ode o& Bro&essional 8esponsibility were supple!ented by *isciplinary 8ules

that de"ned !ini!u! rules o& conduct to which the lawyer !ust adhere. E0+ In the

case o& >anon 9, $R 9-112bE0$beca!e the applicable supple!entary nor!. The

dra&ting co!!ittee re&or!ulated the canons into the #odel >ode o& Bro&essional

8esponsibility, and, in ugust o& 1969, the 3 ouse o& *elegates approved

the Mo#e Co#e.E06

*espite these a!end!ents, legal practitioners re!ained unsatis"ed with the

results and inde"nite standards set &orth by *8 911;b= and the #odel >ode o&

Bro&essional 8esponsibility as a whole. +)0, /" A0t 1983, t)e ABA !#o@te#

"e= Mo#e Re0 o *roe00/o"! Re0@o"0/b//t. The #odel 8ules used the

restate!ent &or!at, where the conduct standards were setout in rules, with

co!!ents &ollowing each rule. The new &or!at was intended to give better

guidance and clarity &or en&orce!ent because the only en&orceable standards were

the black letter 8ules. The #odel 8ules eli!inated the broad canons altogether and

reduced the e!phasis on narrative discussion, by placing co!!ents a&ter the rules

and li!iting co!!ent discussion to the content o& the black letter rules. The #odel

92















8ules !ade a nu!ber o& substantive i!prove!ents particularly with regard to

conNicts o& interests.E0% I" @!rt/c!r, t)e ABA #/# !=! =/t) C!"o" 9, c/t/"

t)e )o@ee00 #e@e"#e"ce o t)e co"ce@t o /?@ro@r/et o" t)e 0bDect/e

/e=0 o !"/o0 c/e"t0 !0 =e !0 t)e "or?0 /"#e"/te "!tre. E0(

In cadence with these changes, t)e I"ter!te# B!r o t)e *)//@@/"e0 2IB*!#o@te# ! @ro@o0e# Co#e o *roe00/o"! Re0@o"0/b//t /" 198 =)/c) /t

0b?/tte# to t)/0 Cort or !@@ro!. The >ode was dra&ted to reNect the local

custo!s, traditions, and practices o& the bar and to con&or! with new realities. O"

'"e 1, 1988, t)/0 Cort @ro?!te# t)e Co#e o *roe00/o"!

Re0@o"0/b//t.E09 8ule 6.0 o& the >ode o& Bro&essional 8esponsibility deals

particularly with &or!er govern!ent lawyers, and provides, vi2 .5

8ule 6.0 lawyer shall not, a&ter leaving govern!ent service, accept engage!ent

or e!ploy!ent in connection with any ?!tter in which he had /"tere"e# while in

said service.

8ule 6.0 o& the >ode o& Bro&essional 8esponsibility retained the general

structure o& paragraph 2, >anon 06 o& the >anons o& Bro&essional <thics

but re@!ce# the e/pansive phrase/"e0t/!te# !"# @!00e# @o" with the

word /"tere"e#. It is, there&ore, properly applicable to both !#er0e-/"tere0t

co"/ct0 and co"re"t-/"tere0t co"/ct0.

+)e c!0e !t b!r #oe0 "ot /"oe t)e !#er0e /"tere0t !0@ect o Re

6.3. 8espondent #endo4a, it is conceded, has no adverse interest proble! when

he acted as :olicitor eneral in :p. Broc. Co. 1%(12 and later as counsel o&

respondents Tan, et al. in >ivil >ase Co. $ and >ivil >ase Cos. 9699 be&orethe Sandi%an"a!an. Conetheless, t)ere re?!/"0 t)e /00e o& whether there

e/ists a co"re"t-/"tere0t co"/ct su@cient to disuali&y respondent #endo4a

&ro! representing respondents Tan, et al.

I.B. +)e co"re"t /"tere0t !0@ect o Re 6.3

The ;e to unlock 8ule 6.0 lies in co!prehending "rst, the !eaning

o& ?!tter re&erred to in the rule and, second, the !etes and bounds o&

the /"tere"t/o" !ade by the &or!er govern!ent lawyer on the !atter. The

!erican 3ar ssociation in its For!al O@/"/o" 34, de"ned !atter as any

discrete, isolatable act as well as identi"able transaction or conduct involving a

particular situation and speci"c party, !"# "ot ?ere an act o& dra&ting, en&orcing

or interpreting govern!ent or agency procedures, regulations or laws, or brie"ng

abstract principles o& law.

(/r0t, it is critical that we pinpoint the ?!tter which was the subect o&

intervention by respondent #endo4a while he was the :olicitor eneral. The B>

90









relates the &ollowing acts o& respondent #endo4a as constituting the ?!tter where

he intervened as a :olicitor eneral, vi2 5E+

The B>s >ase &or tty. #endo4as *isuali"cation

The B> i!putes grave abuse o& discretion on the part o& the 7andiganbayan ;Fi&th*ivision= in issuing the assailed 8esolutions dated Duly 11, 21 and *ece!ber $,

21 denying the !otion to disuali&y tty. #endo4a as counsel &or respondents

Tan, et al. The B> insists that tty. #endo4a, as then :olicitor eneral, actively

intervened in the closure o& <C3CQ by advising the >entral 3ank on how to

proceed with the said banks liuidation and even "ling the petition &or its liuidation

with the >FI o& #anila.

s proo& thereo&, the B> cites the #e!orandu! dated #arch 29, 19%% prepared

by certain key o@cials o& the >entral 3ank, na!ely, then :enior *eputy overnor

!ado 8. 3rinas, then *eputy overnor Dai!e >. aya, then *eputy overnor and

eneral >ounsel abriel >. :ingson, then :pecial ssistant to the overnor >arlota

B. Aalen4uela, then sistant to the overnor rnul&o 3. urellano and then *irector

o& *epart!ent o& >o!!ercial and :avings 3ank ntonio T. >astro, Dr., where they

averred that on #arch 2(, 19%%, they had a con&erence with the :olicitor eneral

;tty. #endo4a=, who advised the! on how to proceed with the liuidation o&

<C3CQ. The pertinent portion o& the said !e!orandu! states5

I!!ediately a&ter said !eeting, we had a con&erence with the :olicitor eneral and

he advised that the &ollowing procedure should be taken5

1. #anage!ent should sub!it a !e!orandu! to the #onetary 3oardreporting that studies and evaluation had been !ade since the last

e/a!ination o& the bank as o& ugust 01, 19%6 and it is believed that the

bank can not be reorgani4ed or placed in a condition so that it !ay be

per!itted to resu!e business with sa&ety to its depositors and creditors

and the general public.

2. I& the said report is con"r!ed by the #onetary 3oard, it shall order the

liuidation o& the bank and indicate the !anner o& its liuidation and

approve a liuidation plan.

0. The >entral 3ank shall in&or! the principal stockholders o& enbank o& the

&oregoing decision to liuidate the bank and the liuidation plan

approved by the #onetary 3oard.

+. The :olicitor eneral shall then "le a petition in the >ourt o& First Instance

reciting the proceedings which had been taken and praying the

assistance o& the >ourt in the liuidation o& enbank.

9+





The B> &urther cites the #inutes Co. 10 dated #arch 29, 19%% o& the #onetary

3oard where it was shown that tty. #endo4a was &urnished copies o& pertinent

docu!ents relating to <C3CQ in order to aid hi! in "ling with the court the

petition &or assistance in the banks liuidation. The pertinent portion o& the said

!inutes reads5

The 3oard decided as &ollows5

. . .

<. To authori4e #anage!ent to &urnish the :olicitor eneral with a copy

o& the subect !e!orandu! o& the *irector, *epart!ent o&

>o!!ercial and :avings 3ank dated #arch 29, 19%%, together with

copies o&5

1. #e!orandu! o& the *eputy overnor, :upervision and

</a!ination :ector, to the #onetary 3oard, dated #arch 2$,

19%%, containing a report on the current situation o& enbankG

@. )ide Memoire on the ntecedent Facts 8e5 eneral 3ank and Trust

>o., dated #arch 20, 19%%G

0. #e!orandu! o& the *irector, *epart!ent o& >o!!ercial and

:avings 3ank, to the #onetary 3oard, dated #arch 2+, 19%%,

sub!itting, pursuant to :ection 29 o& 8.. Co. 26$, as a!ended

by B.*. Co. 1%, a repot on the state o& insolvency o& enbank,

together with its attach!entsG and

+. :uch other docu!ents as !ay be necessary or needed by the

:olicitor eneral &or his use in then >FIpraying the assistance o&

the >ourt in the liuidation o& enbank.

3eyond doubt, there&ore, the ?!tter or the act o& respondent #endo4a as

:olicitor eneral involved in the case at bar is advising the >entral 3ank, on )o= to

@rocee# with the said banks liuidation and even "ling the petition &or its

liuidation with the >FI o& #anila. In "ne, the >ourt should resolve whether his act o&

advising the >entral 3ank on the e! @roce#re to liuidate <C3CQ is

included within the concept o& ?!tter under 8ule 6.0. +)e @roce#re o

//#!t/o" is given in black and white in 8epublic ct Co. 26$, section 29, vi2:

The provision reads in part5

:<>. 29. 'roceedings upon insolvency . -henever, upon e/a!ination

by the head o& the appropriate supervising or e/a!ining depart!ent or his

9$



e/a!iners or agents into the condition o& any bank or nonbank "nancial

inter!ediary per&or!ing uasibanking &unctions, it shall be disclosed that

the condition o& the sa!e is one o& insolvency, or that its continuance in

business would involve probable loss to its depositors or creditors, it shall be

the duty o& the depart!ent head concerned &orthwith, in writing, to in&or!

the #onetary 3oard o& the &acts, and the 3oard !ay, upon "nding thestate!ents o& the depart!ent head to be true, &orbid the institution to do

business in the Bhilippines and shall designate an o@cial o& the >entral 3ank

or a person o& recogni4ed co!petence in banking or "nance, as receiver to

i!!ediately take charge o& its assets and liabilities, as e/peditiously as

possible collect and gather all the assets and ad!inister the sa!e &or the

bene"t o& its creditors, e/ercising all the powers necessary &or these

purposes including, but not li!ited to, bringing suits and &oreclosing

!ortgages in the na!e o& the bank or nonbank "nancial inter!ediary

per&or!ing uasibanking &unctions.

. . .

I& the #onetary 3oard shall deter!ine and con"r! within the said

period that the bank or nonbank "nancial inter!ediary per&or!ing uasi

banking &unctions is insolvent or cannot resu!e business with sa&ety to its

depositors, creditors and the general public, it shall, i& the public interest

reuires, order its liuidation, indicate the !anner o& its liuidation and

approve a liuidation plan. The >entral 3ank shall, by the :olicitor eneral,

"le a petition in the >ourt o& First Instance reciting the proceedings which

have been taken and praying the assistance o& the court in the liuidation o&

such institution. The court shall have urisdiction in the sa!e proceedings toadudicate disputed clai!s against the bank or nonbank "nancial

inter!ediary per&or!ing uasibanking &unctions and en&orce individual

liabilities o& the stockholders and do all that is necessary to preserve the

assets o& such institution and to i!ple!ent the liuidation plan approved by

the #onetary 3oard. The #onetary 3oard shall designate an o@cial o& the

>entral 3ank, or a person o& recogni4ed co!petence in banking or "nance,

as liuidator who shall take over the &unctions o& the receiver previously

appointed by the #onetary 3oard under this :ection. The liuidator shall,

with all convenient speed, convert the assets o& the banking institution or

nonbank "nancial inter!ediary per&or!ing uasibanking &unctions to!oney or sell, assign or otherwise dispose o& the sa!e to creditors and

other parties &or the purpose o& paying the debts o& such institution and he

!ay, in the na!e o& the bank or nonbank "nancial inter!ediary per&or!ing

uasibanking &unctions, institute such actions as !ay be necessary in the

appropriate court to collect and recover accounts and assets o& such

institution.

96



The provisions o& any law to the contrary notwithstanding, the actions

o& the #onetary 3oard under this :ection and the second paragraph o&

:ection 0+ o& this ct shall be "nal and e/ecutory, and can be set aside by

the court only i& there is convincing proo& that the action is plainly arbitrary

and !ade in bad &aith. Co restraining order or inunction shall be issued by

the court enoining the >entral 3ank &ro! i!ple!enting its actions underthis :ection and the second paragraph o& :ection 0+ o& this ct, unless there

is convincing proo& that the action o& the #onetary 3oard is plainly arbitrary

and !ade in bad &aith and the petitioner or plainti? "les with the clerk or

udge o& the court in which the action is pending a bond e/ecuted in &avor o&

the >entral 3ank, in an a!ount to be "/ed by the court. The restraining

order or inunction shall be re&used or, i& granted, shall be dissolved upon

"ling by the >entral 3ank o& a bond, which shall be in the &or! o& cash or

>entral 3ank cashier;s= check, in an a!ount twice the a!ount o& the bond

o& the petitioner or plainti? conditioned that it will pay the da!ages which

the petitioner or plainti? !ay su?er by the re&usal or the dissolution o& the

inunction. The provisions o& 8ule $( o& the Cew 8ules o& >ourt inso&ar as

they are applicable and not inconsistent with the provisions o& this :ection

shall govern the issuance and dissolution o& the restraining order or

inunction conte!plated in this :ection.

Insolvency, under this ct, shall be understood to !ean the inability o&

a bank or nonbank "nancial inter!ediary per&or!ing uasibanking

&unctions to pay its liabilities as they &all due in the usual and ordinary

course o& business. Brovided, however, That this shall not include the

inability to pay o& an otherwise noninsolvent bank or nonbank "nancial

inter!ediary per&or!ing uasibanking &unctions caused by e/traordinaryde!ands induced by "nancial panic co!!only evidenced by a run on the

bank or nonbank "nancial inter!ediary per&or!ing uasibanking &unctions

in the banking or "nancial co!!unity.

The appoint!ent o& a conservator under :ection 2( o& this ct or the

appoint!ent o& a receiver under this :ection shall be vested e/clusively with

the #onetary 3oard, the provision o& any law, general or special, to the

contrary notwithstanding. ;s a!ended by B* Cos. %2, 1%, 1%%1 J 1(2%,

Dan. 16, 19(1=

-e hold that this advice given by respondent #endo4a on the procedure to

liuidate <C3CQ is "ot t)e ?!tter conte!plated by 8ule 6.0 o& the >ode o&

Bro&essional 8esponsibility. ABA (or?! O@/"/o" No. 34 /0 ce!r !0 #!/)t /"

0tre00/" that the dra&ting, e"orc/" or /"ter@ret/" govern!ent or agency

procedures, regulations or laws, or brie"ng abstract principles o& law are acts

which #o "ot ! within the scope o& the ter! ?!tter and cannot disuali&y.

9%



Seco"#, it can even be conceded &or the sake o& argu!ent that the above act

o& respondent #endo4a &alls within the de"nition o& !atter per 3 For!al )pinion

Co. 0+2. 3e that as it !ay, the said act o& respondent #endo4a which is

the ?!tter involved in :p. Broc. Co. 1%(12 is e"t/re #/ere"t &ro!

the ?!tter involved in >ivil >ase Co. 96. gain, the plain &acts speak &or

the!selves. It is given that respondent #endo4a had nothing to do with the decisiono& the >entral 3ank to liuidate <C3CQ. It is also given that he did not participate

in the sale o& <C3CQ to llied 3ank. +)e ?!tter =)ere )e ot )/?0e

/"oe# was in in&or!ing >entral 3ank on the @roce#re provided by law to

liuidate <C3CQ thru the courts and in "ling the necessary petition in :p. Broc.

Co. 1%(12 in the then >ourt o& First Instance. +)e 0bDect ?!tter o S@. *roc.

No. 1781, t)ereore, /0 "ot t)e 0!?e "or /0 re!te# to bt /0 #/ere"t

ro? t)e 0bDect ?!tter /" C// C!0e No. 96 . >ivil >ase Co. 96 involves

the 0ee0tr!t/o" o t)e 0toc;0 owned by respondents Tan, et al., in llied 3ank

on the alleged ground that they are illgotten. The case does not involve the

liuidation o& <C3CQ. Cor does it involve the sale o& <C3CQ to llied 3ank.

-hether the shares o& stock o& the reorgani4ed llied 3ank are illgotten is !r

re?oe# &ro! the issue o& the dissolution and liuidation o& <C3CQ. <C3CQ

was liuidated by the >entral 3ank due, a!ong others, to the alleged banking

!alpractices o& its owners and o@cers. In other words, the legality o& the liuidation

o& <C3CQ is not an issue in the seuestration cases. Indeed, the urisdiction o&

the B> does not include the dissolution and liuidation o& banks. It goes without

saying that >ode 6.0 o& the >ode o& Bro&essional 8esponsibility c!""ot !@@ to

re0@o"#e"t Me"#o! bec!0e )/0 !ee# /"tere"t/o" =)/e ! So/c/tor

Ge"er! /" S@. *roc. No. 1781 /0 !" /"tere"t/o" o" ! ?!tter #/ere"t

ro? t)e ?!tter /"oe# /" C// C!0e No. 96.

+)/r#, we now slide to the !etes and bounds o&

the /"tere"t/o" conte!plated by 8ule 6.0. Intervene !eans, vi4.5

15 to enter or appear as an irrelevant or e/traneous &eature or circu!stance . . . 25

to occur, &all, or co!e in between points o& ti!e or events . . . 05 to co!e in or

between by way o& hindrance or !odi"cation5 ICT<8B):< . . . +5 to occur or lie

between two things ;Baris, where the sa!e city lay on both sides o& an intervening

river . . .=E+1

)n the other hand, intervention is de"ned as5

15 the act or &act o& intervening5 ICT<8B):ITI)CG 25 inter&erence that

!ay a?ect the interests o& others.E+2

There are, there&ore, t=o possible interpretations o& the word intervene. Hnder

the r0t /"ter@ret!t/o", intervene includes participation in a proceeding even i&

the intervention is irrelevant or has no e?ect or little inNuence. E+0 Hnder the 0eco"#

9(









/"ter@ret!t/o", intervene only includes an act o& a person who has the power to

inNuence the subect proceedings.E++-e hold that this second !eaning is !ore

appropriate to give to the word intervention under 8ule 6.0 o& the >ode o&

Bro&essional 8esponsibility in light o& its history. The evils sought to be re!edied by

the 8ule do not e/ist where the govern!ent lawyer does an act which can be

considered as innocuous such as / / / dra&ting, en&orcing or interpretinggovern!ent or agency procedures, regulations or laws, or brie"ng abstract

principles o& law.

In "ne, the intervention c!""ot be /"0b0t!"t/! !"# /"0/"/c!"t.

)riginally, >anon 06 provided that a &or!er govern!ent lawyer should not, a&ter his

retire!ent, accept e!ploy!ent in connection with any !atter =)/c) )e )!0

/"e0t/!te# or @!00e# @o" while in such o@ce or e!ploy. s a&orediscussed,

the broad sweep o& the phrase which he has investigated or passed upon resulted in

unust disuali"cation o& &or!er govern!ent lawyers. The 1969 >ode restricted its

latitude, hence, in *8 911;b=, the prohibition e/tended only to a !atter in which

the lawyer, while in the govern!ent service, had 0b0t!"t/! re0@o"0/b//t. The

19(0 #odel 8ules &urther constricted the reach o& the rule. #8 1.11;a= provides that

a lawyer shall not represent a private client in connection with a !atter in which the

lawyer @!rt/c/@!te# @er0o"! !"# 0b0t!"t/! as a public o@cer or

e!ployee.

It is, however, alleged that the intervention o& respondent #endo4a in :p. Broc.

Co. 1%(12 is signi"cant and substantial. -e disagree. For one, the petition in the

special proceedings is an /"/t/!tor @e!#/", hence, it has to be signed by

respondent #endo4a as the then sitting :olicitor eneral. For another, the recor#

/0 !r/# as to the !ct! participation o& respondent #endo4a in the subseuentproceedings. Indeed, the case was in slu!berville &or a long nu!ber o& years. Cone

o& the parties pushed &or its early ter!ination. #oreover, we note that the petition

"led !erely seeks the !00/0t!"ce o& the court in the liuidation o& <C3CQ. The

principal role o& the court in this type o& proceedings is to assist the >entral 3ank in

deter!ining c!/?0 o cre#/tor0 against the <C3CQ. The role o& the court is not

strictly as a court o& ustice but as an agent to assist the >entral 3ank in

deter!ining the clai!s o& creditors. In such a proceeding, the participation o& the

)@ce o& the :olicitor eneral is not that o& the usual court litigator protecting the

interest o& govern!ent.

II

B!!"c/" *o/c Co"0/#er!t/o"0

To be sure, 8ule 6.0 o& our >ode o& Bro&essional 8esponsibility represents a

co!!endable e?ort on the part o& the I3B to upgrade the ethics o& lawyers in the

govern!ent service. s a&orestressed, it is a takeo? &ro! si!ilar e?orts especially

99





by the 3 which have not been without di@culties. To date, the legal pro&ession in

the Hnited :tates is still "ne tuning its *8 911;b= rule.

In &atho!ing the depth and breadth o& 8ule 6.0 o& our >ode o& Bro&essional

8esponsibility, the Cort too; !cco"t o !r/o0 @o/c co"0/#er!t/o"0 to

assure that its interpretation and application to the case at bar will achieve its endwithout necessarily preudicing other values o& eual i!portance. Thus, the rule was

not interpreted to cause a c)//" eect o" oer"?e"t recr/t?e"t o !be

e! t!e"t. t present, it is already di@cult &or govern!ent to !atch

co!pensation o?ered by the private sector and it is unlikely that govern!ent will be

able to reverse that situation. The observation is not inaccurate that the only card

that the govern!ent !ay play to recruit lawyers is have the! de&er present inco!e

in return &or the e/perience and contacts that can later be e/changed &or higher

inco!e in private practice.E+$ 8ightly, Dudge Qau&!an warned that the sacri"ce o&

entering govern!ent service would be too great &or !ost !en to endure should

ethical rules prevent the! &ro! engaging in the practice o& a technical specialty

which they devoted years in acuiring and cause the "r! with which they beco!e

associated to be disuali"ed.E+6 Indeed, to !ake govern!ent service !ore di@cult

to e/it can only !ake it less appealing to enter.E+%

In interpreting 8ule 6.0, the >ourt also cast a harsh eye on its use as

a /t/!t/o" t!ct/c to )!r!00 o@@o0/" co"0e as well as deprive his client o&

co!petent legal representation. The danger that the rule will be !isused to

bludgeon an opposing counsel is not a !ere guesswork. The >ourt o& ppeals &or

the *istrict o& >olu!bia has noted the tactical use o& !otions to disuali&y counsel

in order to delay proceedings, deprive the opposing party o& counsel o& its choice,

and harass and e!barrass the opponent, and observed that the tactic was soprevalent in large civil cases in recent years as to pro!pt &reuent udicial and

acade!ic co!!entary.E+( <ven the Hnited :tates :upre!e >ourt &ound no uarrel

with the >ourt o& ppeals description o& disuali"cation !otions as a dangerous

ga!e.E+9 In the case at bar, the "e= !tte?@t to disuali&y respondent #endo4a is

di@cult to divine. The disuali"cation o& respondent #endo4a has long been a #e!#

/00e. It was resuscitated a&ter the lapse o& !any years and only a&ter B> has

lost !any legal incidents in the hands o& respondent #endo4a. For a &act, the

recycled !otion &or disuali"cation in the case at bar was "led ?ore t)!" or

e!r0 a&ter the "ling o& the petitions &or certiorari, prohibition and inunction with

the :upre!e >ourt which were subseuently re!anded to the Sandi%an"a!an anddocketed as >ivil >ase Cos. 9699.E$ t the very least, the circu!stances

under which the !otion to disuali&y in the case at bar were re"led put petitioners

!otive as highly suspect.

S/?/!r, t)e Cort /" /"ter@ret/" Re 6.3 =!0 "ot "co"cer"e# =/t)

t)e @reD#/ce to t)e c/e"t which will be caused by its !isapplication. It cannot

be doubted that granting a disuali"cation !otion causes the client to lose not only

1















the law "r! o& choice, but probably an individual lawyer in who! the client has

con"dence.E$1 The client with a disuali"ed lawyer !ust start again o&ten without

the bene"t o& the work done by the latter.E$2 The e?ects o& this preudice to the right

to choose an e?ective counsel cannot be overstated &or it can result in denial o& due

process.

+)e Cort )!0 to co"0/#er !0o t)e @o00/be !#er0e eect o !

tr"c!te# re!#/" o t)e re o" t)e oJc/! /"#e@e"#e"ce o !=er0 /"

t)e oer"?e"t 0er/ce. ccording to Bro&. #organ5 n individual who has the

security o& knowing he or she can "nd private e!ploy!ent upon leaving the

govern!ent is &ree to work vigorously, challenge o@cial positions when he or she

believes the! to be in error, and resist illegal de!ands by superiors. n e!ployee

who lacks this assurance o& private e!ploy!ent does not enoy such &reedo!. E$0 e

adds5 ny syste! that a?ects the right to take a new ob a?ects the ability to uit

the old ob and any li!it on the ability to uit inhibits o@cial independence.E$+ +)e

c!0e !t b!r /"oe0 t)e @o0/t/o" o So/c/tor Ge"er!, the o@ce once

occupied by respondent #endo4a. It cannot be overly stressed that t)e @o0/t/o" o

So/c/tor Ge"er! 0)o# be e"#o=e# =/t) ! re!t #eree o /"#e@e"#e"ce .

It is this independence that allows the :olicitor eneral to reco!!end acuittal o&

the innocentG it is this independence that gives hi! the right to re&use to de&end

o@cials who violate the trust o& their o@ce. ny undue di!unition o& the

independence o& the :olicitor eneral will have a corrosive e?ect on the rule o& law.

No e00 0/"/c!"t ! co"0/#er!t/o" /0 t)e #e@r/!t/o" o t)e or?er

oer"?e"t !=er o t)e ree#o? to eerc/0e )/0 @roe00/o". iven the

current state o& our law, the disuali"cation o& a &or!er govern!ent lawyer !ay

e/tend to all !e!bers o& his law "r!.E$$ For!er govern!ent lawyers stand indanger o& beco!ing the e@er0 o t)e e! @roe00/o".

It is, however, pro?ered that the !ischie& sought to be re!edied by 8ule 6.0 o&

the >ode o& Bro&essional 8esponsibility is the @o00/be !@@e!r!"ce o

/?@ro@r/et and loss o& public con"dence in govern!ent. 3ut as well observed, the

accuracy o& gauging public perceptions is a highly speculative e/ercise at

bestE$6 which can lead to untoward results.E$% Co less than Dudge Qau&!an doubts

that the lessening o& restrictions as to &or!er govern!ent attorneys will have any

detri!ental e?ect on that &ree Now o& in&or!ation between the govern!entclient

and its attorneys which the canons seek to protect.

E$(

Not!b, t)e !@@e!r!"ceo /?@ro@r/et t)eor )!0 bee" reDecte# /" t)e 1983 ABA Mo#e Re0 o

*roe00/o"! Co"#ctE$9and so!e courts have abandoned per se disuali"cation

based on >anons + and 9 when an actual conNict o& interest e/ists, and de!and an

evaluation o& the interests o& the de&endant, govern!ent, the witnesses in the case,

and the public.E6

11























It is also sub!itted that the >ourt should apply 8ule 6.0 in all its strictness &or

it correctly dis&avors lawyers who 0=/tc) 0/#e0. It is clai!ed that switching sides

carries the danger that &or!er govern!ent e!ployee !ay co?@ro?/0e

co"#e"t/! oJc/! /"or?!t/o" in the process. 3ut this concern does not cast a

shadow in the case at bar. s a&orediscussed, the act o& respondent #endo4a in

in&or!ing the >entral 3ank on the procedure how to liuidate <C3CQ isa #/ere"t ?!tter &ro! the subect !atter o& >ivil >ase Co. $ which is about

the seuestration o& the shares o& respondents Tan, et al., in llied 3ank.

>onseuently, the danger that con"dential o@cial in&or!ation !ight be divulged is

nil, i& not ine/istent. To be sure, there are "o /"co"0/0te"t 0/#e0 to be bothered

about in the case at bar. For there is no uestion that in lawyering &or respondents

Tan, et al., respondent #endo4a is not working against the interest o& >entral 3ank.

)n the contrary, he is indirectly de&ending the validity o& the action o& >entral 3ank

in liuidating <C3CQ and selling it later to llied 3ank. +)e/r /"tere0t0 co/"c/#e

/"0te!# o co/#/". It is &or this reason that >entral 3ank o?ered no obection to

the lawyering o& respondent #endo4a in >ivil >ase Co. $ in de&ense o&

respondents Tan, et al. +)ere /0 "o 0=/tc)/" o 0/#e0 or "o t=o 0/#e0 !re

/"oe#.

It is also urged that the >ourt should consider that 8ule 6.0 is intended to

avoid co"/ct o o!t/e0, i.e., that a govern!ent e!ployee !ight be subect to a

conNict o& loyalties while still in govern!ent service. E61 The e/a!ple given by the

proponents o& this argu!ent is that a lawyer who plans to work &or the co!pany

that he or she is currently charged with prosecuting !ight be te!pted to prosecute

less vigorously.E62 In the cautionary words o& the ssociation o& the 3ar >o!!ittee in

1965 The greatest public risks arising &ro! post e!ploy!ent conduct !ay well

occur #r/" the period o& e!ploy!ent through the da!pening o& aggressivead!inistration o& govern!ent policies.E60 Bro&. #organ, however, considers this

concern as probably e/cessive.E6+ e opines / / / it is hard to i!agine that a private

"r! would &eel secure hiding so!eone who had ust been disloyal to his or her last

client the govern!ent. Interviews with lawyers consistently con"r! that law "r!s

want the best govern!ent lawyers the ones who were hardest to beat not the least

uali"ed or least vigorous advocates.E6$ 3ut again, t)/0 @!rt/c!r co"cer" /0 !

"o" !ctor /" t)e c!0e !t b!r. There is no charge against respondent #endo4a

that he advised >entral 3ank on how to liuidate <C3CQ with an eye in later

de&ending respondents Tan, et al. o& llied 3ank. Indeed, he continues de&ending

both the interests o& >entral 3ank and respondents Tan, et al. in the above cases.

ikewise, the >ourt is nudged to consider the need to curtail what is perceived

as the ece00/e /"e"ce o or?er oJc/!0 or t)e/r cot. E66 Bro&. #organ

again warns against e/tending this concern too &ar. e e/plains the rationale &or his

warning, vi2 5 #uch o& what appears to be an e!ployees inNuence !ay actually be

the power or authority o& his or her position, power that evaporates uickly upon

departure &ro! govern!ent / / /.E6% #ore, he contends that the concern can

12

















be #e?e!"/" to those sitting in govern!ent. To uote hi! &urther5 / / / The idea

that, present o@cials !ake signi"cant decisions based on &riendship rather than on

the !erit says !ore about the present o@cials than about their &or!er coworker

&riends. It i!plies a lack o& will or talent, or both, in &ederal o@cials that does not

see! usti"ed or intended, and it ignores the possibility that the o@cials will tend to

dis&avor their &riends in order to avoid even the appearance o& &avoritis!.E6(

III

+)e e0t/o" o !/r"e00

#r. Dustices Banganiban and >arpio are o& the view, a!ong others, that the

congruent interest prong o& 8ule 6.0 o& the >ode o& Bro&essional 8esponsibility

should be subect to a prescriptive period. #r. Dustice Tinga opines that the rule

cannot apply retroactively to respondent #endo4a. )bviously, and rightly so, they

are disuieted by the &act that ;1= when respondent #endo4a was the :olicitor

eneral, 8ule 6.0 has not yet adopted by the I3B and approved by this >ourt, and

;2= the bid to disuali&y respondent #endo4a was !ade a&ter the lapse o& ti!e

whose length cannot, by any standard, uali&y as reasonable. t botto!, the point

they !ake relates to the un&airness o& the rule i& applied without any prescriptive

period and retroactively, at that. Their concern is legiti!ate and deserves to be

initially addressed by the I3B and our >o!!ittee on 8evision o& the 8ules o& >ourt.

IN %IE &EREO(, the petition assailing the resolutions dated Duly 11, 21

and *ece!ber $, 21 o& the Fi&th *ivision o& the 7andiganbayan in >ivil >ase Cos.

9699 is denied.

Co cost.

SO OR$ERE$.

+avide, %r., $.%., 4uisumbing, 5nares67antiago, 7andoval6(utierre2, $arpio,

)ustria6Martine2, $orona and (arcia, %%., concur.

'anganiban and "inga, %%., Blease see separate opinion.

$arpio6Morales and $alle8o, 7r., %%., Blease see dissenting opinion.

)2cuna, %., I was &or!er B> >hair.

$hico6&a2ario, %., Co part.

10





G.R. No. 14599 M!rc) 11, 1994

'ON $E :SASI III, petitioner,vs.

NA+IONAL LABOR RELA+IONS COMMISSION 2(OR+& $I%ISION, CEB CI+:,

!"# 'ON $E :SASI,respondents.

1.B. 7antiago, &alus < )ssociates for petitioner.

smael ). 7erno for private respondent.

REGALA$O, J.:

The adage that blood is thicker than water obviously stood &or naught in this case,

notwithstanding the vinculum o& paternity and "liation between the parties. It would

indeed have been the better part o& reason i& herein petitioner and private

respondent had reconciled their di?erences in an e/traudicial at!osphere o&

&a!ilial a!ity and with the grace o& reciprocal concessions. Father and son opted

instead &or udicial intervention despite the inevitable acri!ony and negative

publicity. lbeit with distaste, the >ourt cannot proceed elsewise but to resolve their

dispute with the sa!e reasoned detach!ent accorded any udicial proceeding

be&ore it.

The records o& this case reveal that petitioner was e!ployed by his &ather, herein

private respondent, as &ar! ad!inistrator o& acienda #anucao in inigaran,

Cegros )ccidental so!eti!e in pril, 19(. Brior thereto, he was successively

e!ployed as sales !anager o& Triu!ph International ;Bhil.=, Inc. and later as

operations !anager o& Top For! #anu&acturing ;Bhil.=, Inc. is e!ploy!ent as &ar!

1+



ad!inistrator was on a "/ed salary, with other allowances covering housing, &ood,

light, power, telephone, gasoline, !edical and dental e/penses.

s &ar! ad!inistrator, petitioner was responsible &or the supervision o& daily

activities and operations o& the sugarcane &ar! such as land preparation, planting,

weeding, &ertili4ing, harvesting, dealing with third persons in all !atters relating tothe hacienda and attending to such other tasks as !ay be assigned to hi! by

private respondent. For this purpose, he lived on the &ar!, occupying the upper

Noor o& the house there.

Following his !arriage on Dune 6, 19(2, petitioner !oved to 3acolod >ity with his

wi&e and co!!uted to work daily. e su?ered various ail!ents and was hospitali4ed

on two separate occasions in Dune and ugust, 19(2. In Cove!ber, 19(2, he

underwent "stulecto!y, or the surgical re!oval o& the "stula, a deep sinuous ulcer.

*uring his recuperation which lasted over &our !onths, he was under the care o& *r.

Batricio Tan. In Dune, 19(0, he was con"ned &or acute gastroenteritis and, therea&ter,

&or in&ectious hepatitis &ro! *ece!ber, 19(0 to Danuary, 19(+.

*uring the entire periods o& petitioner's illnesses, private respondent took care o&

his !edical e/penses and petitioner continued to receive co!pensation. owever,

in pril, 19(+, without due notice, private respondent ceased to pay the latter's

salary. Betitioner !ade oral and written de!ands &or an e/planation &or the sudden

withholding o& his salary &ro! tty. polonio :u!bingco, private respondent's

auditor and legal adviser, as well as &or the re!ittance o& his salary. 3oth de!ands,

however, were not acted upon.

Betitioner then "led an action with the Cational abor 8elations >o!!ission ;C8>,&or brevity=, 8egional rbitration 3ranch Co. AI, 3acolod >ity, on )ctober 1%, 19(+,

docketed therein as 83 >ase Co. +$2(+, against private respondent &or illegal

dis!issal with prayer &or reinstate!ent without loss o& seniority rights and pay!ent

o& &ull back wages, thirteenth !onth pay &or 19(0, conseuential, !oral and

e/e!plary da!ages, as well as attorney's &ees.

)n Duly 01, 1991, said co!plaint &or illegal dis!issal was dis!issed by the

C8>, 1 holding that petitioner abandoned his work and that the ter!ination o& his

e!ploy!ent was &or a valid cause, but ordering private respondent to pay petitioner

the a!ount o& B$,. as penalty &or his &ailure to serve notice o& said ter!ination

o& e!ploy!ent to the *epart!ent o& abor and <!ploy!ent as reuired by 3atas

Ba!bansa 3lg. 10 and consonant with this >ourt's ruling in Cenphil $orporation

vs. &ational Labor Relations $ommission, et al. )n appeal to the Fourth *ivision o&

the C8>, >ebu >ity, said decision was a@r!ed in toto. 3

is !otion &or reconsideration 4 o& said decision having been denied &or lack o&

!erit, 5 petitioner "led this petition presenting the &ollowing issues &or resolution5 ;1=

1$



whether or not the petitioner was illegally dis!issedG ;2= whether or not he is

entitled to reinstate!ent, pay!ent o& back wages, thirteenth !onth pay and other

bene"tsG and ;0= whether or not he is entitled to pay!ent o& !oral and e/e!plary

da!ages and attorney's &ees because o& illegal dis!issal. The discussion o& these

issues will necessarily subsu!e the corollary uestions presented by private

respondent, such as the e/act date when petitioner ceased to &unction as &ar!ad!inistrator, the character o& the pecuniary a!ounts received by petitioner &ro!

private respondent, that is, whether the sa!e are in the nature o& salaries or

pensions, and whether or not there was abandon!ent by petitioner o& his &unctions

as &ar! ad!inistrator.

In his !ani&estation dated :epte!ber 1+, 1992, the :olicitor eneral reco!!ended

a !odi"cation o& the decision o& herein public respondent sustaining the "ndings

and conclusions o& the </ecutive abor rbiter in 83 >ase Co. +$2(+, 6 &or which

reason the C8> was reuired to sub!it its own co!!ent on the petition. In

co!pliance with the >ourt's resolution o& Cove!ber 16, 1992, 7 C8> "led its

co!!ent on February 12, 1992 largely reiterating its earlier position in support o&

the "ndings o& the </ecutive abor rbiter. 8

3e&ore proceeding with a discussion o& the issues, the observation o& the labor

arbiter is worth noting5

This case is truly uniue. -hat !akes this case uniue is the &act that

because o& the special relationship o& the parties and the nature o& the

action involved, this case could very well go down ;in= the annals o& the

>o!!ission as perhaps the "rst o& its kind. For this case is an action

"led by an only son, his &ather's na!esake, the only child and there&orethe only heir against his own &ather. 9

dditionally, the :olicitor eneral re!arked5

. . . &ter an e/haustive reading o& the records, two ;2= observations

were noted that !ay usti&y why this labor case deserves special

considerations. First, !ost o& the co!plaints that petitioner and private

respondent had with each other, were personal !atters a?ecting

&ather and son relationship. nd secondly, i& any o& the co!plaints

pertain to their work, they allow their personal relationship to co!e in

the way. 1

I. Betitioner !aintains that his dis!issal &ro! e!ploy!ent was illegal because o&

want o& ust cause there&or and nonobservance o& the reuire!ents o& due process.

e also charges the C8> with grave abuse o& discretion in relying upon the "ndings

o& the e/ecutive labor arbiter who decided the case but did not conduct the

hearings thereo&.

16



Brivate respondent, in re&utation, avers that there was abandon!ent by petitioner

o& his &unctions as &ar! ad!inistrator, thereby ar!ing private respondent with a

ground to ter!inate his e!ploy!ent at acienda #anucao. It is also contended that

it is wrong &or petitioner to uestion the &actual "ndings o& the e/ecutive labor

arbiter and the C8> as only uestions o& law !ay be appealed &or resolution by this

>ourt. Further!ore, in seeking the dis!issal o& the instant petition, privaterespondent &aults herein petitioner &or &ailure to re&er to the corresponding pages o&

the transcripts o& stenographic notes, erroneously citing :ections 1$;d= and 16;d=,

8ule ++ ;should be :ection 16Ec and Ed,

8ule +6 and :ection 1Eg, 8ule $= o& the 8ules o& >ourt, which provide that want o&

page re&erences to the records is a ground &or dis!issal o& an appeal.

Bre&atorily, we take advertence o& the provisions o& rticle 221 o& the abor >ode

that technical rules o& evidence prevailing in courts o& law and euity shall not be

controlling, and that every and all reasonable !eans to speedily and obectively

ascertain the &acts in each case shall be availed o&, without regard to technicalities

o& law or procedure in the interest o& due process.

It is settled that it is not procedurally obectionable &or the decision in a case to be

rendered by a udge, or a labor arbiter &or that !atter, other than the one who

conducted the hearing. The &act that the udge who heard the case was not the

udge who penned the decision does not i!pair the validity o& the

udg!ent, 11 provided that he draws up his decision and resolution with due care

and !akes certain that they truly and accurately reNect conclusions and "nal

dispositions on the bases o& the &acts o& and evidence sub!itted in the case. 1

Thus, the !ere &act that the case was initially assigned to abor rbiter 8icardo T.)ctavio, who conducted the hearings therein &ro! *ece!ber $, 19(+ to Duly 11,

19($, and was later trans&erred to </ecutive abor rbiter )scar :. Hy, who

eventually decided the case, presents no procedural in"r!ity, especially considering

that there is a presu!ption o& regularity in the per&or!ance o& a public o@cer's

&unctions, 13 which petitioner has not success&ully rebutted.

-e are constrained to heed the underlying policy in the abor >ode rela/ing the

application o& technical rules o& procedure in labor cases in the interest o& due

process, ever !ind&ul o& the longstanding legal precept that rules o& procedure

!ust be interpreted to help secure, not de&eat, ustice. For this reason, we cannot

indulge private respondent in his tendency to nitpick on trivial technicalities to

boost his argu!ents. The strength o& one's position cannot be hinged on !ere

procedural niceties but on solid bases in law and urisprudence.

The &unda!ental guarantees o& security o& tenure and due process dictate that no

worker shall be dis!issed e/cept &or ust and authori4ed cause provided by law and

a&ter due process. 14 rticle 2(2 o& the abor >ode enu!erates the causes &or which

1%



an e!ployer !ay validly ter!inate an e!ploy!ent, to wit5

;a= serious !isconduct or will&ul disobedience by the e!ployee o& the law&ul orders

o& his e!ployer or representative in connection with his workG ;b= gross and habitual

neglect by the e!ployee o& his dutiesG ;c= &raud or will&ul breach by the e!ployee o&

the trust reposed in hi! by his e!ployer or duly authori4ed representativeG ;d=

co!!ission o& a cri!e or o?ense by the e!ployee against the person o& hise!ployer or any i!!ediate !e!ber o& his &a!ily or his duly authori4ed

representativeG and ;e= other causes analogous to the &oregoing.

The e!ployer !ay also ter!inate the services o& any e!ployee due to the

installation o& labor saving devices, redundancy, retrench!ent to prevent losses or

the closing or cessation o& operation o& the establish!ent or undertaking, unless the

closing is &or the purpose o& circu!venting the pertinent provisions o& the abor

>ode, by serving a written notice on the workers and the *epart!ent o& abor and

<!ploy!ent at least one ;1= !onth be&ore the intended date thereo&, with due

entitle!ent to the corresponding separation pay rates provided by law. 15 :u?ering

&ro! a disease by reason whereo& the continued e!ploy!ent o& the e!ployee is

prohibited by law or is preudicial to his and his coe!ployee's health, is also a

ground &or ter!ination o& his services provided he receives the prescribed

separation pay. 16 )n the other hand, it is wellsettled that abandon!ent by an

e!ployee o& his work authori4es the e!ployer to e?ect the &or!er's dis!issal &ro!

e!ploy!ent. 17

&ter a care&ul review o& the records o& this case, we "nd that public respondent

gravely erred in a@r!ing the decision o& the e/ecutive labor arbiter holding that

petitioner abandoned his e!ploy!ent and was not illegally dis!issed &ro! such

e!ploy!ent. For want o& substantial bases, in &act orin law, we cannot give the sta!p o& "nality and conclusiveness nor!ally accorded

to the &actual "ndings o& an ad!inistrative agency, such as herein public

respondent C8>, 18 as even decisions o& ad!inistrative agencies which are

declared "nal by law are not e/e!pt &ro! udicial review when so warranted. 19

The &ollowing perceptive disuisitions o& the :olicitor eneral on this point deserve

acceptance5

It is sub!itted that the absences o& petitioner in his work &ro! )ctober

19(2 to *ece!ber 19(2, cannot be construed as abandon!ent o& work

because he has a usti"able e/cuse. Betitioner was su?ering &ro!

perennial abscess in the perianal around the anus and "stula under

the !edical attention o& *r. Batricio Tan o& 8iverside #edical >enter,

Inc., 3acolod >ity ;Tsn, Aol. III, *r. Tan, February 19, 19(6 at 2++=.

1(



This &act ;was= duly co!!unicated to private respondent by !edical

bills sent to acienda #anucao ;Tsn, Aol. III, *r. Tan, Danuary 22, 19(%

at +9$=.

*uring the period o& his illness and recovery, petitioner stayed in

3acolod >ity upon the instruction;s= o& private respondent torecuperate thereat and to handle only ad!inistrative !atters o& the

hacienda in that city. s a !anager, petitioner is not really obliged to

live and stay 2+ hours a day inside acienda #anucao.

/// /// ///

&ter evaluating the evidence within the conte/t o& the special

circu!stances involved and basic hu!an e/perience, petitioner's

illness and strained &a!ily relation with respondent Don de Msasi II !ay

be considered as usti"able reason &or petitioner Don de Msasi III's

absence &ro! work during the period o& )ctober 19(2 to *ece!ber

19(2. In any event, such absence does not warrant outright dis!issal

without notice and hearing.

/// /// ///

The ele!ents o& abandon!ent as a ground &or dis!issal o& an

e!ployee are as &ollows5

;1= &ailure to report &or work or absence without valid or

usti"able reasonG and ;2= clear intention to sever thee!ployere!ployee tie ;:a!son lcantara, Reviewer in

Labor and 7ocial Legislation, 19(9 edition, p. 100=.

This onorable >ourt, in several cases, illustrates what constitute

abandon!ent. In +agupan Bus $ompany v . &LR$ ;191 :>8 02(=, the

>ourt rules that &or abandon!ent to arise, there !ust be a

concurrence o& the intention to abandon and so!e overt act &ro!

which it !ay be in&erred that the e!ployee has no !ore interest to

work. :i!ilarly, in &ueva -ci8a -lectric $ooperative, nc. v . &LR$;1(+

:>8 2$=, &or abandon!ent to constitute a valid cause &or ter!ination

o& e!ploy!ent, there !ust be a deliberate, unusti"ed re&usal o& the

e!ployee to resu!e his e!ploy!ent. . . #ere absence is not su@cientG

it !ust be acco!panied by overt acts unerringly pointing to the &act

that the e!ployee si!ply does not want to work any!ore.

There are signi"cant indications in this case, that there is no

abandon!ent. First, petitioner's absence and his decision to leave his

19



residence inside acienda #anucao, is usti"ed by his illness and

strained &a!ily relations. :econd he has so!e !edical certi"cates to

show his &rail health. Third, once able to work, petitioner wrote a letter

;nne/ D= in&or!ing private respondent o& his intention to assu!e

again his e!ploy!ent. ast, but not the least, he at once instituted a

co!plaint &or illegal dis!issal when he reali4ed he was unustlydis!issed. ll these are indications that petitioner had no intention to

abandon his e!ploy!ent.

The records show that the parties herein do not dispute the &act o& petitioner's

con"ne!ent in the hospital &or his various aVictions which reuired !edical

treat!ent. Ceither can it be denied that private respondent was well aware o&

petitioner's state o& health as the &or!er ad!ittedly shouldered part o& the !edical

and hospital bills and even advised the latter to stay in 3acolod >ity until he was "t

to work again. The disagree!ent as to whether or not petitioner's ail!ents were so

serious as to necessitate hospitali4ation and corresponding periods &or recuperation

is beside the point. The &act re!ains that on account o& said illnesses, the details o&

which were a!ply substantiated by the attending physician, 1 and as the records

are bere&t o& any suggestion o& !alingering on the part o& petitioner, there was

usti"able cause &or petitioner's absence &ro! work. -e repeat, it is clear, deliberate

and unusti"ed re&usal to resu!e e!ploy!ent and not !ere absence that is

reuired to constitute abandon!ent as a valid ground &or ter!ination o&

e!ploy!ent.

-ith his position as &ar! ad!inistrator o& acienda #anucao, petitioner

un!istakably !ay be classi"ed as a !anagerial e!ployee 3 to who! the law

grants an a!ount o& discretion in the discharge o& his duties. This is why whenpetitioner stated that I assigned !ysel& where I want to go, 4 he was si!ply being

candid about what he could do within the sphere o& his authority. is duties as &ar!

ad!inistrator did not strictly reuire hi! to keep regular hours or to be at the o@ce

pre!ises at all ti!es, or to be subected to speci"c control &ro! his e!ployer in

every aspect o& his work. -hat is essential only is that he runs the &ar! as

e@ciently and e?ectively as possible and, while petitioner !ay de"nitely not uali&y

as a !odel e!ployee, in this regard he proved to be uite success&ul, as there was

at least a showing o& increased production during the ti!e that petitioner was in

charge o& &ar! operations.

I&, as private respondent contends, he had no control over petitioner during the

years 19(0 to 19(+, this is because that was the period when petitioner was

recuperating &ro! illness and on account o& which his attendance and direct

involve!ent in &ar! operations were irregular and !ini!al, hence the supervision

and control e/ercisable by private respondent as e!ployer was necessarily li!ited.

It goes without saying that the control conte!plated re&ers only to !atters relating

11



to his &unctions as &ar! ad!inistrator and could not e/tend to petitioner's personal

a?airs and activities.

-hile it was taken &or granted that &or purposes o& discharging his duties as &ar!

ad!inistrator, petitioner would be staying at the house in the &ar!, there really was

no e/plicit contractual stipulation ;as there was no &or!al e!ploy!ent contract tobegin with= reuiring hi! to stay therein &or the duration o& his e!ploy!ent or that

any trans&er o& residence would usti&y the ter!ination o& his e!ploy!ent. That

petitioner changed his residence should not be taken against hi!, as this is

undeniably a!ong his basic rights, nor can such &act o& trans&er o& residence per

se be a valid ground to ter!inate an e!ployere!ployee relationship.

Brivate respondent, in his pleadings, asserted that as he was yet uncertain o& his

son's intention o& returning to work a&ter his con"ne!ent in the hospital, he kept

petitioner on the payroll, reported hi! as an e!ployee o& thehacienda &or social

security purposes, and paid his salaries and bene"ts with the !andated deductions

there&ro! until the end o& *ece!ber, 19(2. It was only in Danuary, 19(0 when he

beca!e convinced that petitioner would no longer return to work that he considered

the latter to have abandoned his work and, &or this reason, no longer listed hi! as

an e!ployee. ccording to private respondent, whatever a!ount o& !oney was

given to petitioner &ro! that ti!e until

pril, 19(+ was in the nature o& a pension or an allowance or !ere gratuitous doles

&ro! a &ather to a son, and not salaries as, in &act, none o& the usual deductions

were !ade there&ro!. It was only in pril, 19(+ that private respondent co!pletely

stopped giving said pension or allowance when he was angered by what he heard

petitioner had been saying about sending hi! to ail.

Brivate respondent capitali4es on the testi!ony o& one #anolo o!e4 taken on oral

deposition regarding petitioner's alleged state!ent to hi!, /h0e uemado los

/p0ue/n0tes de Manucao ;I have burned !y bridges with #anucao= as e/pressive

o& petitioner's intention to abandon his ob. In addition to insinuations o& sinister

!otives on the part o& petitioner in working at the &ar! and therea&ter abandoning

the ob upon acco!plish!ent o& his obectives, private respondent takes the novel

position that the agree!ent to support his son a&ter the latter abandoned the

ad!inistration o& the &ar! legally converts the initial abandon!ent to i!plied

voluntary resignation. 5

s earlier !entioned, petitioner ripostes that private respondent undoubtedly knew

about petitioner's illness and even paid &or his hospital and other !edical bills. The

assertion regarding abandon!ent o& work, petitioner argues, is &urther belied by his

continued per&or!ance o& various services related to the operations o& the &ar!

&ro! #ay to the last uarter o& 19(0, his persistent inuiries &ro! his &ather's

accountant and legal adviser about the reason why his pension or allowance was

discontinued since pril, 19(+, and his indication o& having recovered and his

111



willingness and capability to resu!e his work at the &ar! as e/pressed in a letter

dated :epte!ber 1+, 19(+. 6 -ith these, petitioner contends that it is i!!aterial

how the !onthly pecuniary a!ounts are designated, whether as salary, pension or

allowance, with or without deductions, as he was entitled thereto in view o& his

continued service as &ar! ad!inistrator. 7

To stress what was earlier !entioned, in order that a "nding o& abandon!ent !ay

ustly be !ade there !ust be a concurrence o& two ele!ents, vi2 .5 ;1= the &ailure to

report &or work or absence without valid or usti"able reason, and ;2= a clear

intention to sever the e!ployere!ployee relationship, with the second ele!ent as

the !ore deter!inative &actor and being !ani&ested by so!e overt acts. :uch

intent we "nd dis!ally wanting in this case.

It will be recalled that private respondent hi!sel& ad!itted being unsure o& his son's

plans o& returning to work. The absence o& petitioner &ro! work since !id19(2,

prolonged though it !ay have been, was not without valid causes o& which private

respondent had &ull knowledge. s to what convinced or led hi! to believe that

petitioner was no longer returning to work, private respondent neither e/plains nor

substantiates by any reasonable basis how he arrived at such a conclusion.

#oreover, private respondent's clai! o& abandon!ent cannot be given credence as

even a&ter Danuary, 19(0, when private respondent supposedly beca!e convinced

that petitioner would no longer work at the &ar!, the latter continued to per&or!

services directly reuired by his position as &ar! ad!inistrator. These are duly and

correspondingly evidenced by such acts as picking up so!e &ar!

!achineryLeuip!ent &ro! .. #achineries, Inc., 8 clai!ing and paying &or

additional &ar! euip!ent and !achinery shipped by said "r! &ro! #anila to3acolod through Pip Forwarders, 9 getting the pay!ent o& the additional cash

advances &or !olasses &or crop year 19(019(+ &ro! grote/ >o!!odities,

Inc., 3 and re!itting to private respondent through

tty. :u!bingco the su!s collected along with receipts &or !edicine and oil. 31

It will be observed that all o& these chores, which petitioner took care o&, relate to

the nor!al activities and operations o& the &ar!. True, it is a &ather's prerogative to

reuest or even co!!and his child to run errands &or hi!. In the present case,

however, considering the nature o& these transactions, as well as the property

values and !onetary su!s involved, it is unlikely that private respondent would

leave the !atter to ust anyone. Brudence dictates that these !atters be handled

by so!eone who can be trusted or at least be held accountable there&or, and who is

&a!iliar with the ter!s, speci"cations and other details relative thereto, such as an

e!ployee. I& indeed petitioner had abandoned his ob or was considered to have

done so by private respondent, it would be awkward, or even out o& place, to e/pect

or to oblige petitioner to concern hi!sel& with !atters relating to or e/pected o& hi!

with respect to what would then be his past and ter!inated e!ploy!ent. It is hard

112



to i!agine what &urther authority an e!ployer can have over a dis!issed e!ployee

so as to co!pel hi! to continue to per&or! workrelated tasks5

It is also signi"cant that the special power o& attorney 3 e/ecuted

by private respondent on Dune 26, 19( in &avor o& petitioner, speci"cally stating U

/// /// ///

That I, D)C de M::I, Filipino, o& legal age, !arried, and a resident o&

da. #anucao, hereina&ter called and re&erred to as B8IC>IB, a! a

sugarcane planter, 3I:>)# #ill *istrict, and a duly accredited planter

!e!ber o& the 3IC3CI:3< BCT<8:' ::)>ITI)C, IC>.G

That as such planter!e!ber o& 3IB, I have checkLchecks with 3IB

representing pay!ent &or all checks and papers to which I a! entitled

to ;sic= as such planter!e!berG

That I have na!ed, appointed and constituted as by these presents

I <8<3M C#<, BB)ICT C* >)C:TITHT< as !y true and law&ul

TT)8C<MICF>T

D)C de M::I III

whose speci!en signature is hereunder a@/ed, T) <T F)8 #< and in

!y na!e, place and stead, !y checkLchecks a&ore!entioned, said

TT)8C<MICF>T being herein given the power and authority to sign

&or !e and in !y na!e, place and stead, the receipt or receipts orpayroll &or the said checkLchecks. B8)AI*<*, )-<A<8, that !y said

TT)8C<MICF>T cannot cash the said checkLchecks, but to turn the

sa!e over to !e &or !y proper disposition.

That I <8<3M 8TIFM C* >)CFI8# the acts o& !y

ttorneyinFact in getting the said checkLchecks and signing the

receipts there&or.

That I &urther reuest that !y said checkLchecks be !ade a >8)::<*

><>Q.

/// /// ///

re!ained in &orce even a&ter petitioner's e!ploy!ent was supposed to have been

ter!inated by reason o& abandon!ent. Further!ore, petitioner's nu!erous reuests

&or an e/planation regarding the stoppage o& his salaries and bene"ts, 33 the

issuance o& withholding ta/ reports, 34 as well as correspondence reporting his &ull

110



recovery and readiness to go back to work, 35 and, speci"cally, his "ling o& the

co!plaint &or illegal dis!issal are hardly the acts o& one who has abandoned his

work.

-e are likewise not i!pressed by the deposition o& #anolo o!e4, as witness &or

private respondent, ascribing state!ents to petitioner supposedly indicative o& thelatter's intention to abandon his work. -e perceive the irregularity in the taking o&

such deposition without the presence o& petitioner's counsel, and the &ailure o&

private respondent to serve reasonably advance notice o& its taking to said counsel,

thereby &oreclosing his opportunity to

crosse/a!ine the deponent. Brivate respondent also &ailed to serve notice thereo&

on the 8egional rbitration 3ranch Co. AI o& the C8>, as certi"ed to by

d!inistrative ssistant >elestina . )veera o& said o@ce. 36 Fair play dictates that

at such an i!portant stage o& the proceedings, which involves the taking o&

testi!ony, both parties !ust be a?orded eual opportunity to e/a!ine and cross

e/a!ine a witness.

s to the !onthly !onetary a!ounts given to petitioner, whether deno!inated as

salary, pension, allowance orex gratia handout, there is no uestion as to

petitioner's entitle!ent thereto inas!uch as he continued to per&or! services in his

capacity as &ar! ad!inistrator. The change in description o& said a!ounts

contained in the pay slips or in the receipts prepared by private respondent cannot

be dee!ed to be deter!inative o& petitioner's e!ploy!ent status in view o& the

peculiar circu!stances above set out. 3esides, i& such a!ounts were truly in the

nature o& allowances given by a parent out o& concern &or his child's wel&are, it is

rather unusual that receipts there&or 37 should be necessary and reuired as i& they

were ordinary business e/penditures.

Ceither can we subscribe to private respondent's theory that petitioner's alleged

abandon!ent was converted into an i!plied voluntary resignation on account o&

the &ather's agree!ent to support his son a&ter the latter abandoned his work. s

we have deter!ined that no abandon!ent took place in this case, the !onthly

su!s received by petitioner, regardless o& designation, were in consideration &or

services rendered e!anating &ro! an e!ployere!ployee relationship and were not

o& a character that can uali&y the! as !ere civil support given out o& parental duty

and solicitude. -e are also hard put to i!agine how abandon!ent can be i!pliedly

converted into a voluntary resignation without any positive act on the part o& thee!ployee conveying a desire to ter!inate his e!ploy!ent. The very concept o&

resignation as a ground &or ter!ination by the e!ployee o& his e!ploy!ent38 does

not suare with the ele!ents constitutive o& abandon!ent.

)n procedural considerations, petitioner posits that there was a violation by private

respondent o& the due process reuire!ents under the abor >ode &or want o&

notice and hearing. 39 Brivate respondent, in opposition, argues that :ection 2, 8ule

11+



OIA, 3ook A o& the )!nibus 8ules I!ple!enting the abor >ode applies only to

cases where the e!ployer seeks to ter!inate the services o& an e!ployee on any o&

the grounds enu!erated under rticle 2(2 o& the abor >ode, but not to the

situation obtaining in this case where private respondent did not dis!iss petitioner

on any ground since it was petitioner who allegedly abandoned his e!ploy!ent. 4

The due process reuire!ents o& notice and hearing applicable to labor cases are

set out in 8ule OIA, 3ook A o& the )!nibus 8ules I!ple!enting the abor >ode in

this wise5

:ec. 2. &otice of +ismissal. U ny e!ployer who seeks to dis!iss a

worker shall &urnish hi! a written notice stating the particular acts or

o!ission;s= constituting the grounds &or his dis!issal. In cases o&

abandon!ent o& work, notice shall be served at the worker's last

known address.

/// /// ///

:ec. $. )nswer and hearing. U The worker !ay answer the allegations

as stated against hi! in the notice o& dis!issal within a reasonable

period &ro! receipt o& such notice. The e!ployer shall a?ord the

worker a!ple opportunity to be heard and to de&end hi!sel& with the

assistance o& his representative, i& he so desires.

:ec. 6. +ecision to dismiss. U The e!ployer shall i!!ediately noti&y a

worker in writing o& a decision to dis!iss hi! stating clearly the

reasons there&or.

:ec. %. Right to contest dismissal. U ny decision taken by the

e!ployer shall be without preudice to the right o& the worker to

contest the validity or legality o& his dis!issal by "ling a co!plaint with

the 8egional 3ranch o& the >o!!ission.

/// /// ///

:ec. 11. Report of dismissal. U The e!ployer shall sub!it a !onthly

report to the 8egional )@ce having urisdiction over the place o& work

at all dis!issals e?ected by hi! during the !onth, speci&ying therein

the na!es o& the dis!issed workers, the reasons &or their dis!issal,

the dates o& co!!ence!ent and ter!ination o& e!ploy!ent, the

positions last held by the! and such other in&or!ation as !ay be

reuired by the #inistry &or policy guidance and statistical purposes.

11$



Brivate respondent's argu!ent is without !erit as there can be no uestion that

petitioner was denied his right to due process since he was never given any notice

about his i!pending dis!issal and the grounds there&or, !uch less a chance to be

heard. <ven as private respondent controverts the applicability o& the !andatory

twin reuire!ents o& procedural due process in this particular case, he in e?ect

ad!its that no notice was served by hi! on petitioner. This &act is corroborated bythe certi"cation issued on :epte!ber $, 19(+ by the 8egional *irector &or 8egion AI

o& the *epart!ent o& abor that no notice o& ter!ination o& the e!ploy!ent o&

petitioner was sub!itted thereto. 41

ranting arguendo that there was abandon!ent in this case, it nonetheless cannot

be denied that notice still had to be served upon the e!ployee sought to be

dis!issed, as the second sentence o& :ection 2 o& the pertinent i!ple!enting rules

e/plicitly reuires service thereo& at the e!ployee's last known address, by way o&

substantial co!pliance. -hile it is conceded that it is the e!ployer's prerogative to

ter!inate an e!ployee, especially when there is ust cause there&or, the

reuire!ents o& due process cannot be lightly taken. The law does not countenance

the arbitrary e/ercise o& such a power or prerogative when it has the e?ect o&

under!ining the &unda!ental guarantee o& security o& tenure in &avor o& the

e!ployee. 4

)n the e/ecutive labor arbiter's !isplaced reliance on the Cenphil case, the

:olicitor eneral reoins as &ollows5

The abor rbiter held thus5

-hile we are in &ull agree!ent with the respondent as tohis de&ense o& i!plied resignation andLor abandon!ent,

records so!ehow showed that he &ailed to noti&y the

*epart!ent o&

abor and <!ploy!ent &or his sons' ;sic=Lco!plainants'

;sic= aba;n=don!ent as reuired by 3B 10. nd &or this

&ailure, the other reuisite &or a valid ter!ination by an

e!ployer was not co!plied with. This however, would not

work to invalidate the otherwise ;sic= e/istence o& a valid

cause &or dis!issal. The validity o& the cause o& dis!issal

!ust be upheld at all ti!es provided however that

sanctions !ust be i!posed on the respondent &or his

&ailure to observe the notice on due process reuire!ent.

;-enphil >orp. v. C8>, .8. Co. ($(%=. ;*ecision abor

rbiter, at 1112, nne/ > Betition=, . . .

This is thus a very di?erent case &ro! Cenphil $orporation v . &LR$,

1% :>8 69. In Cenphil, the rule applied to the &acts is5 once an

116



e!ployee is dis!issed &or ust cause, he !ust not be rewarded

ree!ploy!ent and backwages &or &ailure o& his e!ployer to observe

procedural due process. The public policy behind this is that, it !ay

encourage the e!ployee to do even worse and render a !ockery o&

the rules o& discipline reuired to be observed. owever, the e!ployer

!ust be penali4ed &or his in&raction o& due process. In the present case,however, not only was petitioner dis!issed without due process, but

his dis!issal is without ust cause. Betitioner did not abandon his

e!ploy!ent because he has a usti"able e/cuse. 43

II. Betitioner avers that the e/ecutive labor arbiter erred in disregarding the

!andatory provisions o& rticle 2%9 o& the abor >ode which entitles an illegally

dis!issed e!ployee to reinstate!ent and back wages and, instead, a@r!ed the

i!position o& the penalty o& B$,. on private respondent &or violation o& the due

process reuire!ents. Brivate respondent, &or his part, !aintains that there was

error in i!posing the "ne because that penalty conte!plates the &ailure to sub!it

the e!ployer's report on dis!issed e!ployees to the *)< regional o@ce, as

reuired under :ection $ ;now, :ection 11=, 8ule OIA o& the i!ple!enting rules, and

not the &ailure to serve notice upon the e!ployee sought to be dis!issed by the

e!ployer.

3oth the >onstitution and the abor >ode enunciate in no uncertain ter!s the right

o& every worker to security o& tenure. 44 To give teeth to this constitutional and

statutory !andates, the abor >ode spells out the relie& available to an e!ployee in

case o& its denial5

rt. 2%9. 7ecurity of "enure. U In cases o& regular e!ploy!ent, thee!ployer shall not ter!inate the services o& an e!ployee e/cept &or a

ust cause or when authori4ed by this Title. n e!ployee who is

unustly dis!issed &ro! work shall be entitled to reinstate!ent without

loss o& seniority rights and other privileges and to his &ull backwages,

inclusive o& allowances, and to his other bene"ts o& their !onetary

euivalent co!puted &ro! the ti!e his co!pensation was withheld

&ro! hi! up to the ti!e o& actual reinstate!ent.

>learly, there&ore, an e!ployee is entitled to reinstate!ent with &ull back wages in

the absence o& ust cause &or dis!issal. 45 The >ourt, however, on nu!erous

occasions has te!pered the rigid application o& said provision o& the abor >ode,

recogni4ing that in so!e cases certain events !ay have transpired as would

!ilitate against the practicability o& granting the relie& thereunder provided, and

declares that where there are strained relations between the e!ployer and the

e!ployee, pay!ent o& back wages and severance pay !ay be awarded instead o&

reinstate!ent, 46 and !ore particularly when !anagerial e!ployees are

concerned. 47 Thus, where reinstate!ent is no longer possible, it is there&ore

11%



appropriate that the dis!issed e!ployee be given his &air and ust share o& what the

law accords hi!. 48

-e note with &avor and give our i!pri!atur to the :olicitor eneral's ratiocination,

to wit5

s a general rule, an e!ployee who is unustly dis!issed &ro! work

shall be entitled to reinstate!ent without loss o& seniority rights and to

his backwages co!puted &ro! the ti!e his co!pensation was withheld

up to the ti!e o& his reinstate!ent. ;#orales vs. C8>, 1(( :>8 29$=.

3ut in 'acic $ement $ompany, nc. vs. &LR$, 1%0 :>8 192, this

onorable >ourt held that when it co!es to reinstate!ent, di?erences

should be !ade between !anagers and the ordinary working!en. The

>ourt concluded that a co!pany which no longer trusts its !anagers

cannot operate &reely in a co!petitive and pro"table !anner. The

C8> should know the di?erence between !anagers and ordinary

working!en. It cannot i!prudently order the reinstate!ent o&

!anagers with the sa!e ease and liberality as that o& rank and "le

workers who had been ter!inated. :i!ilarly, a reinstate!ent !ay not

be appropriate or &easible in case o& antipathy or antagonis! between

the parties ;#orales, vs. C8>, 1(( :>8 29$=.

In the present case, it is sub!itted that petitioner should not be

reinstated as &ar! ad!inistrator o& acienda #anucao. The present

relationship o& petitioner and private respondent ;is= so strained that a

har!onious and peace&ul e!ployeee!ployer relationship is hardly

possible. 49

III. Finally, petitioner insists on an award o& !oral da!ages, arguing that his

dis!issal &ro! e!ploy!ent was attended by bad &aith or &raud, or constituted

oppression, or was contrary to !orals, good custo!s or public policy. e &urther

prays &or e/e!plary da!ages to serve as a deterrent against si!ilar acts o& unust

dis!issal by other e!ployers.

#oral da!ages, under rticle 221% o& the >ivil >ode, !ay be awarded to

co!pensate one &or diverse inuries such as !ental anguish, bes!irched reputation,

wounded &eelings, and social hu!iliation, provided that such inuries spring &ro! a

wrong&ul act or o!ission o& the de&endant which was the pro/i!ate cause

thereo&. 5</e!plary da!ages, under rticle 2229, are i!posed by way o& e/a!ple

or correction &or the public good, in addition to !oral, te!perate, liuidated or

co!pensatory da!ages. They are not recoverable as a !atter o& right, it being le&t

to the court to decide whether or not they should be adudicated. 51

11(



-e are well aware o& the >ourt's rulings in a nu!ber o& cases in the past allowing

recovery o& !oral da!ages where the dis!issal o& the e!ployee was attended by

bad &aith or &raud, or constituted an act oppressive to labor, or was done in a

!anner contrary to !orals, good custo!s or public policy, 5 and o& e/e!plary

da!ages i& the dis!issal was e?ected in a wanton, oppressive or !alevolent

!anner. 53

-e do not &eel, however, that an award o& the da!ages prayed &or in thispetition would be proper even i&, see!ingly, the &acts o& the case usti&y their

allowance. In the a&orestated cases o& illegal dis!issal where !oral and e/e!plary

da!ages were awarded, the dis!issed e!ployees were genuinely without &ault and

were undoubtedly victi!s o& the erring e!ployers' capricious e/ercise o& power.

In the present case, we "nd that both petitioner and private respondent can eually

be &aulted &or &anning the Na!es which gave rise to and ulti!ately aggravated this

controversy, instead o& sincerely negotiating a peace&ul settle!ent o& their

disparate clai!s. The records reveal how their actuations seethed with !utual

antagonis! and the undeniable en!ity between the! negates the likelihood that

either o& the! acted in good &aith. It is apparent that each one has a cause &or

da!ages against the other. For this reason, we hold that no !oral or e/e!plary

da!ages can right&ully be awarded to petitioner.

)n this score, we are once again persuaded by the validity o& the &ollowing

reco!!endation o& the :olicitor eneral5

The abor rbiter's decision in 83 >ase Co. +$2(+ should be

!odi"ed. There was no voluntary abandon!ent in this case because

petitioner has a usti"able e/cuse &or his absence, or such absence

does not warrant outright dis!issal without notice and hearing. Brivaterespondent, there&ore, is guilty o& illegal dis!issal. e should be

ordered to pay backwages &or a period not e/ceeding three years &ro!

date o& dis!issal. nd in lieu o& reinstate!ent, petitioner !ay be paid

separation pay euivalent to one ;1= !onth;'s= salary &or every year o&

service, a &raction o& si/ !onths being considered as one ;1= year in

accordance with recent urisprudence ;Tan, Dr. vs. C8>, 1(0 :>8

6$1=. 3ut all clai!s &or da!ages should be dis!issed, &or both parties

are eually at &ault. 54

The conduct o& the respective counsel o& the parties, as revealed by the records,

sorely disappoints the >ourt and invites reproo&. 3oth counsel !ay well be re!inded

that their ethical duty as lawyers to represent their clients with

4eal 55 goes beyond !erely presenting their clients' respective causes in court. It is

ust as !uch their responsibility, i& not !ore i!portantly, to e/ert all reasonable

e?orts to s!ooth over legal conNicts, pre&erably out o& court and especially in

consideration o& the direct and i!!ediate consanguineous ties between their

clients. )nce again, we reiterate that the use&ul &unction o& a lawyer is not only to

119



conduct litigation but to avoid it whenever possible by advising settle!ent or

withholding suit. e is o&ten called upon less &or dra!atic &orensic e/ploits than &or

wise counsel in every phase o& li&e. e should be a !ediator &or concord and a

conciliator &or co!pro!ise, rather than a virtuoso o& technicality in the conduct o&

litigation. 56

8ule 1.+ o& the >ode o& Bro&essional 8esponsibility e/plicitly provides that ;a=

lawyer shall encourage his client to avoid, end or settle the controversy i& it will

ad!it o& a &air settle!ent. )n this point, we "nd that both counsel herein &ell short

o& what was e/pected o& the!, despite their avowed duties as o@cers o& the court.

The records do not show that they took pains to initiate steps geared toward

e?ecting a rapproche!ent between their clients. )n the contrary, their acerbic and

protracted e/changes could not but have e/acerbated the situation even as they

!ay have &ound &avor in the eually hostile eyes o& their respective clients.

In the sa!e !anner, we "nd that the labor arbiter who handled this regrettable

case has been less than &aith&ul to the letter and spirit o& the abor >ode !andating

that a labor arbiter shall e/ert all e?orts towards the a!icable settle!ent o& a labor

dispute within his urisdiction. 57 I& he ever did so, or at least entertained the

thought, the copious records o& the proceedings in this controversy are barren o&

any reNection o& the sa!e.

)ne "nal word. This is one decision we do not particularly relish having been obliged

to !ake. The task o& resolving cases involving disputes a!ong !e!bers o& a &a!ily

leaves a bad taste in the !outh and an aversion in the !ind, &or no truly !eaning&ul

and enduring resolution is really achieved in such situations. -hile we are

convinced that we have adudicated the legal issues herein suarely on the bases o& law and urisprudence, sanssenti!entality, we are saddened by the thought that we

!ay have &ailed to bring about the reconciliation o& the &ather and son who "gured

as parties to this dispute, and that our adherence here to law and duty !ay

unwittingly contribute to the breaking, instead o& the strengthening, o& &a!ilial

bonds. In "ne, neither o& the parties herein actually e!erges victorious. It is the

>ourt's earnest hope, there&ore, that with the i!partial e/position and e/tended

e/planation o& their respective rights in this decision, the parties !ay eventually see

their way clear to an ulti!ate resolution o& their di?erences on !ore convivial

ter!s.

-<8<F)8<, the decision o& respondent Cational abor 8elations >o!!ission is

hereby :<T :I*<. Brivate respondent is )8*<8<* to pay petitioner back wages &or

a period not e/ceeding three ;0= years, without uali"cation or deduction, 58 and, in

lieu o& reinstate!ent, separation pay euivalent to one ;1= !onth &or every year o&

service, a &raction o& si/ ;6= !onths being considered as one ;1= whole year.

:) )8*<8<*.

12



&arvasa, $.%., 'adilla, &ocon and 'uno, %%., concur.

RE> RE*OR+ ON +&E .#. Co. B621%%(INANCIAL A$I+ CON$C+E$ ;For!erly .#. Co. 6+26(8T>=ON +&E BOOFS O( ACCON+SO( A++:. RAEL G. F&O,CLERF O( COR+ I%,REGIONAL +RIAL COR+,ORAS, EAS+ERN SAMAR . Bresent5

BHC), %., $hairperson,:C*)AHTI<88<P,>)8)C,AZCNA !"#8>I, %%.

Bro!ulgated5

Dune 2%, 26 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

8 < : ) H T I ) C

CORONA, J.>

This ad!inistrative case is a result o& the audit conducted by the )@ce o& the >ourt d!inistrator ;)>= o& the books o& accounts o& tty. 8auel . Qho,&or!er clerk o& court o& the 8egional Trial >ourt, 3ranch$, )ras, <astern :a!ar. The audit covered the period #arch 19($ to )ctober 01,2$.

The )>, in its !e!orandu! dated pril 1(, 26, had the &ollowing "ndings5 ;1=there was a shortage o& B$+$. in re!ittances to the eneral FundG ;2= a cashshortage o& B2+. in the :heri?s eneral FundG and ;0= tty. Qho did not deposit onti!e in the authori4ed depository bank the collections &or the Fiduciary Fund;B6,= and :pecial llowance &or the Dudiciary Fund ;B$,=. It also noted thattty. Qho had already restituted the B$+$. and B2+. cash shortages.

8egarding the delayed re!ittance o& the a!ount o& B6, representing thea!ount o& a con"scated cash bond, Qho e/plained that the and 3ank o& theBhilippines ;the authori4ed depository bank= had no branch in their locality. Thenearest and 3ank branch was appro/i!ately 9$ kilo!eters away so it was hispractice to keep his collections in the courts sa&ety vault.

121



)n the other hand, the a!ount o& B$, was collected as "ling &ee &or an election

protest. ccording to Qho, this was collected under 8ule + o& the >o!!ission on

<lections ;>)#<<>= 8ules o& Brocedure. In de&ense, he presented a letter

addressed to :enior *eputy >ourt d!inistratorPenaida C. <lepao inuiring where

to re!it said a!ount. The )>, through *eputy >ourt d!inistrator Dose B. Bere4,

responded that pending o@cial instructions on how to !anage the !oney collectedunder 8ule + o& the >)#<<> 8ules, it was to be treated as trust deposits and

te!porarily deposited in the Fiduciary Fund.E1 owever, Qho &ailed to do this.

>onseuently, the audit tea! advised hi! to deposit the B$, in the:pecial llowance &or the Dudiciary Fund as provided under :ec. 21 ;g= o& thea!ended d!inistrative >ircular Co. 0$2+.E2 e was also advised to deposit thecon"scated B6, cash bond in the Dudicial *evelop!ent Fund account. eco!plied with both directives on Cove!ber 1$, 2$. )n Danuary 26, 26, the )> received a letterco!plaint with the in&or!ation

that Qho, along with his alleged co!!onlawwi&e,stenographer8i4a !or . ibanan, was engaged in lending out to court e!ployees!oney in his possession as clerk o& court, personally deriving pro"t &ro! theinterest earned.

The )> &ound Qho liable &or violating )> >ircular Co. (90E0 dated pril21, 1990 when he kept the &unds in a sa&ety vault &or !ore than a year. ll clerks o& lower courts are supposed to deposit all collections &ro! bail bonds, rental depositsand other "duciary collections with the and 3ank upon receipt thereo&. Thus, itreco!!ended that ;1= the audit report be docketed as a regular ad!inistrativeco!plaint againstQho and ;2= a "ne in the a!ount o& B1, be i!posed on hi!.

-e agree with the )>s reco!!endations. Bublic o@ce is a public trust. E+ Those charged with the dispensation o&

ustice, &ro! the ustices and udges to the lowliest clerks, should becircu!scribed with the heavy burden o& responsibility.E$ Cot only !ust theirconduct at all ti!es be characteri4ed by propriety and decoru! but, above allelse, it !ust be beyond suspicion.E6

clerk o& court, aside &ro! being the custodian o& the courts &unds,

revenues, property and pre!ises, is also entrusted with the pri!aryresponsibility o& correctly and e?ectively i!ple!enting regulations regarding"duciary &unds.E% :a&ekeeping o& &unds and collections is essential to an orderly

ad!inistration o& ustice and no protestation o& good &aith can override the!andatory nature o& the circulars designed to pro!ote &ull accountability &orgovern!ent &unds.E( >lerks o& court have always been re!inded o& their duty toi!!ediately deposit the various &unds received by the! to the authori4edgovern!ent depositories &or they are not supposed to keep &unds in theircustody.E9

122

http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/A.M.%20No.%20P-06-2177.htm#_ftn1




















Qho &ailed to !ake a ti!ely turnover o& cash deposited with hi!. This wasine/cusable because he could have purchased postal !oney orders &ro! thelocal post o@ce payable to the chie& accountant, ccounting *ivision, F#))>. The !oney could have earned interest had he not kept the! in the vault&or over a year.E1 s &ound by the )>, although Qho had restituted all his cashaccountabilities, he was nevertheless liable &or &ailing to i!!ediately deposit the

collections &or the udiciary &unds.

The &ailure to re!it the &unds in due ti!e constitutes gross dishonesty andgross !isconduct. It di!inishes the &aith o& the people in the Dudiciary.E11 *ishonesty, being in the nature o& a grave o?ense, carries the e/tre!epenalty o& dis!issal &ro! the service even i& co!!itted &or the "rstti!e. owever, Qho showed re!orse by i!!ediately restituting the cashshortages and co!plying with the directives o& the audit tea!. nd consideringthat this is his "rst o?ense, we "nd that the penalty o& B1, "ne is su@cient.

-e note that Qho has already trans&erred to the *epart!ent o&

Dustice. owever, it neither renders this !atter !oot nor &rees hi! &ro! liability.

#oreover, his !isconduct reNects on his "tness as a !e!ber o& the bar.

is !al&easance prima facie contravenes >anon 1,E12 8ule 1.1E10 o& the >ode o& Bro&essional 8esponsibility. ence, he should e/plain why no &urther disciplinarysanction should be i!posed on hi!.

&ERE(ORE, tty. 8auel . Qho is hereby &ound GIL+: o& gross

!isconduct &or his &ailure to !ake ti!ely re!ittance o& udiciary &unds in hiscustody. e is ordered to pay a (INE o& B1, within ten ;1= days &ro! receipt o& this resolution.

tty. Qho is &urther ordered to S&O CASE within the sa!e period why he

should not be disciplined &or such !isconduct as a lawyer and as an o@cer o& the>ourt.

SO OR$ERE$.

RE+A- C. CR+Associate Dustice -< >)C>H85 RE:NA+O S. *NOssociate Dustice>hairperson

120











C<IC :C*)AHTI<88<P

ssociate Dustice

*)F) :. P>HC

ssociate Dustice

CANCIO C. GARCIAssociate Dustice

G.R. No. L-1877 A0t 31, 1964

'ESS MA. CI, plainti?appellee,

vs.

AN+ONIO MA. CI, de&endantappellant,

ROMLO CI, Intervenorappellant.

%ose C. +io#no for plaintiD6appellee.

%aime R. &uevas and *ector L. *oleEa for defendant6appellant.

Romulo $ui in his own behalf as intervenor6appellants.

MAFALIN+AL, J.:

This is a proving in uo warranto originally "led in the >ourt o& First Instance o&

>ebu. The o@ce in contention is that o& d!inistrator o& the *ospicio de 7an %ose de

Barili. Dudg!ent was rendered on 2% pril 1961 in &avor o& the plainti?, Desus #a.

>ui, and appealed to us by the de&endant, ntonio #a. >ui, and by the intervenor,

8o!ulo >ui.

The ospicio is a charitable institution established by the spouses *on Bedro >ui

and *oWa 3enigna >ui, now deceased, &or the care and support, &ree o& charge, o&

indigent invalids, and incapacitated and helpless persons. It acuired corporate

e/istence by legislation ;ct Co. 0209 o& the Bhilippine egislature passed 2%Cove!ber 192$= and endowed with e/tensive properties by the said spouses

through a series o& donations, principally the deed o& donation e/ecuted on 2

Danuary 1926.

:ection 2 o& ct Co. 0209 gave the initial !anage!ent to the &ounders ointly and,

in case o& their incapacity or death, to such persons as they !ay no!inate or

12+



designate, in the order prescribed to the!. :ection 2 o& the deed o& donation

provides as &ollows5

Rue en caso de nuestro &alleci!iento o incapacidad para ad!inistrar, nos

sustituyan nuestro legiti!e sobrino #ariano >ui, si al tie!po de nuestra

!uerte o incapacidad se hallare residiendo en la caudad de >ebu, y nuestrosobrino politico *ionisio Dakosale!. :i nuestro dicho sobrino #ariano >ui no

estuviese residiendo entonces en la caudad de >ebu, designa!os en su lugar

a nuestro otro sobrino legiti!e #auricio >ui. !bos sobrinos ad!inistraran

conunta!ente el ):BI>I) *< :C D):< *< 38II. la !uerte o

incapacidad de estos dos ad!inistradores, la ad!inistracion del ):BI>I) *<

:C D):< *< 38II pasara a una sola persona ue sera el varon, !ayor de

edad, ue descienda legiti!ainente de cualuiera de nuestros sobrinos

legiti!os #ariano >ui, #auricio >ui, Aicente >ui y Aictor >ui, y ue posea

titulo de abogado, o !edico, o ingeniero civil, o &ar!aceutico, o a &alta de

estos titulos, el ue pague al <stado !ayor i!puesto o contribution. <n

igualdad de circu!stancias, sera pre&erida el varon de !as edad

descendiente de uien tenia ulti!a!ente la ad!inistracion. >uando

absoluta!ente &altare persona de estas cuali"caciones, la ad!inistracion del

):BI>I) *< :C D):< *< 38II pasara al senor )bispo de >ebu o uien

sea el !ayor dignatario de la Iglesia >atolica, apostolica, 8o!ana, ue

tuviere asiento en la cabecera de esta Brovincia de >ebu, y en su de&ecto, al

obierno Brovincial de >ebu.

*on Bedro >ui died in 1926, and his widow continued to ad!inister

the *ospicio until her death in 1929. Thereupon the ad!inistration passed to

#auricio >ui and *ionisio Dakosale!. The "rst died on ( #ay 1901 and the secondon 1 Duly 1901. )n 2 Duly 1901 *r. Teodoro >ui, only son o& #auricio >ui, beca!e the

ad!inistrator. Therea&ter, beginning in 1902, a series o& controversies and court

litigations ensued concerning the position o& ad!inistrator, to which, in so &ar as

they are pertinent to the present case, re&erence will be !ade later in this decision.

Blainti? Desus #a. >ui and de&endant ntonio #a. >ui are brothers, being the sons o&

#ariano >ui, one o& the nephews o& the spouses *on Bedro >ui and *oWa 3enigna

>ui. )n 2% February 196 the then incu!bent ad!inistrator, *r. Teodoro >ui,

resigned in &avor o& ntonio #a. >ui pursuant to a convenio entered into between

the! and e!bodied in a notarial docu!ent. The ne/t day, 2( February, ntonio #a.>ui took his oath o& o@ce. Desus #a. >ui, however, had no prior notice o& either the

convenio or o& his brother's assu!ption o& the position.

*r. Teodoro >ui died on 2% ugust 196G on $ :epte!ber 196 the plainti? wrote a

letter to the de&endant de!anding that the o@ce be turned over to hi!G and on 10

:epte!ber 196, the de!and not having been co!plied with the plainti? "led the

co!plaint in this case. 8o!ulo >ui later on intervened, clai!ing a right to the sa!e

12$



o@ce, being a grandson o& Aicente >ui, another one o& the nephews !entioned by

the &ounders o& the*ospicio in their deed o& donation.

s between Desus and ntonio the !ain issue turns upon their respective

uali"cations to the position o& ad!inistrator. Desus is the older o& the two and

there&ore under eual circu!stances would be pre&erred pursuant to section 2 o& the deed o& donation. owever, be&ore the test o& age !ay be, applied the deed

gives pre&erence to the one, a!ong the legiti!ate descendants o& the nephews

therein na!ed, ue posea titulo de abogado, o !edico, o ingeniero civil, o

&ar!aceutico, o a &alta de estos titulos el ue pague al estado !ayor i!puesto o

contribucion.

The speci"c point in dispute is the !ealing o& the ter! titulo de abogado. Desus

#a. >ui holds the degree o& 3achelor o& aws &ro! the Hniversity o& :anto To!as

;>lass 1926= but is not a !e!ber o& the 3ar, not having passed the e/a!inations to

uali&y hi! as one. ntonio #a. >ui, on the other hand, is a !e!ber o& the 3ar and

although disbarred by this >ourt on 29 #arch 19$% ;ad!inistrative case Co. 1+1=,

was reinstated by resolution pro!ulgated on 1 February 196, about two weeks

be&ore he assu!ed the position o& ad!inistrator o& the*ospicio de Barili.

The >ourt a uo, in deciding this point in &avor o& the plainti?, said that the phrase

titulo de abogado, taken alone, !eans that o& a &ullNedged lawyer, but that has

used in the deed o& donation and considering the &unction or purpose o& the

ad!inistrator, it should not be given a strict interpretation but a liberal one, and

there&ore !eans a law degree or diplo!a o& 3achelor o& aws. This ruling is assailed

as erroneous both by the de&endant and by the intervenor.

-e are o& the opinion, that whether taken alone or in conte/t the ter! titulo de

abogado !eans not !ere possession o& the acade!ic degree o& 3achelor o& aws

but !e!bership in the 3ar a&ter due ad!ission thereto, uali&ying one &or the

practice o& law. In :panish the word titulo is de"ned as testi!onies o instru!ento

dado para eercer un e!pleo, dignidad o pro&esion ;*iccionario de la engua

<spaWola, 8eal cade!ia <spanola, 19+% ed., p. 122+= and the word abogado, as

&ollows5 Berito en el derecho positivo ue se dedica a de&ender en uicio, por escrito

o de palabra, los derechos o intereses de los litigantes, y ta!bien a dar dict!en

sobre las cuestiones o puntos legales ue se le consultan ;d., p.$= 3achelor's

degree alone, con&erred by a law school upon co!pletion o& certain acade!ic

reuire!ents, does not entitle its holder to e/ercise the legal pro&ession. The

<nglish euivalent o& abogado is lawyer or attorneyatlaw. This ter! has a "/ed

and general signi"cation, and has re&erence to that class o& persons who are by

license o@cers o& the courts, e!powered to appear, prosecute and de&end, and

upon who! peculiar duties, responsibilities and liabilities are devolved by law as a

conseuence.

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In this urisdiction ad!ission to the 3ar and to the practice o& law is under the

authority o& the :upre!e >ourt. ccording to 8ule 10( such ad!ission reuires

passing the 3ar e/a!inations, taking the lawyer's oath and receiving a certi"cate

&ro! the >lerk o& >ourt, this certi"cate being his license to practice the pro&ession.

The acade!ic degree o& 3achelor o& aws in itsel& has little to do with ad!ission to

the 3ar, e/cept as evidence o& co!pliance with the reuire!ents that an applicantto the e/a!inations has success&ully co!pleted all the prescribed courses, in a law

school or university, o@cially approved by the :ecretary o& <ducation. For this

purpose, however, possession o& the degree itsel& is not indispensable5 co!pletion

o& the prescribed courses !ay be shown in so!e other way. Indeed there are

instances, particularly under the &or!er >ode o& >ivil Brocedure, where persons who

had not gone through any &or!al legal education in college were allowed to take the

3ar e/a!inations and to uali&y as lawyers. ;:ection 1+ o& that code reuired

possession o& the necessary uali"cations o& learning ability.= Met certainly it would

be incorrect to say that such persons do not possess the titulo de abogado

because they lack the acade!ic degree o& 3achelor o& aws &ro! so!e law school

or university.

The &ounders o& the *ospicio de 7an %ose de Barili !ust have established the

&oregoing test advisely, and provided in the deed o& donation that i& not a lawyer,

the ad!inistrator should be a doctor or a civil engineer or a phar!acist, in that

orderG or &ailing all these, should be the one who pays the highest ta/es a!ong

those otherwise uali"ed. lawyer, "rst o& all, because under ct Co. 0209 the

!anagers or trustees o& the *ospicioshall !ake regulations &or the govern!ent o&

said institution ;:ec. 0, b=G shall prescribe the conditions subect to which invalids

and incapacitated and destitute persons !ay be ad!itted to the institute ;:ec. 0,

d=G shall see to it that the rules and conditions pro!ulgated &or ad!ission are not inconNict with the provisions o& the ctG and shall ad!inister properties o&

considerable value U &or all o& which work, it is to be presu!ed, a working

knowledge o& the law and a license to practice the pro&ession would be a distinct

asset.

Hnder this particular criterion we hold that the plainti? is not entitled, as against the

de&endant, to the o@ce o& ad!inistrator. 3ut it is argued that although the latter is a

!e!ber o& the 3ar he is nevertheless disuali"ed by virtue o& paragraph 0 o& the

deed o& donation, which provides that the ad!inistrator !ay be re!oved on the

ground, a!ong others, o& ineptitude in the discharge o& his o@ce or lack o& evidentsound !oral character. 8e&erence is !ade to the &act that the de&endant was

disbarred by this >ourt on 29 #arch 19$% &or i!!orality and unpro&essional

conduct. It is also a &act, however, that he was reinstated on 1 February 196,

be&ore he assu!ed the o@ce o& ad!inistrator. is reinstate!ent is a recognition o&

his !oral rehabilitation, upon proo& no less than that reuired &or his ad!ission to

the 3ar in the "rst place.

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-here&ore, the parties respect&ully pray that the &oregoing stipulation o& &acts be

ad!itted and approved by this onorable >ourt, without preudice to the parties

adducing other evidence to prove their case not covered by this stipulation o&

&acts. =FwphG=.EHt

-hether or not the applicant shall be reinstated rests to a great e/tent in thesound discretion o& the court. The court action will depend, generally

speaking, on whether or not it decides that the public interest in the orderly

and i!partial ad!inistration o& ustice will be conserved by the applicant's

participation therein in the capacity o& an attorney and counselor at law. The

applicant !ust, like a candidate &or ad!ission to the bar, satis&y the court

that he is a person o& good !oral character U a "t and proper person to

practice law. The court will take into consideration the applicant's character

and standing prior to the disbar!ent, the nature and character o& the charge

&or which he was disbarred, his conduct subseuent to the disbar!ent, and

the ti!e that has elapsed between the disbar!ent and the application &or

reinstate!ent. ;$ !. Dur., :ec. 01, p. ++0=

<vidence o& re&or!ation is reuired be&ore applicant is entitled to

reinstate!ent, notwithstanding the attorney has received a pardon &ollowing

his conviction, and the reuire!ents &or reinstate!ent have been held to be

the sa!e as &or original ad!ission to the bar, e/cept that the court !ay

reuire a greater degree o& proo& than in an original ad!ission. ;% >.D.:.,

ttorney J >lient, :ec. +1, p. (1$.=

The decisive uestions on an application &or reinstate!ent are whether

applicant is o& good !oral character in the sense in which that phrase isused when applied to attorneysatlaw and is a "t and proper person to be

entrusted with the privileges o& the o@ce o& an attorney, and whether his

!ental uali"cations are such as to enable hi! to discharge e@ciently his

duty to the public, and the !oral attributes are to be regarded as a separate

and distinct &ro! his !ental uali"cations. ;% >.D.:., ttorney J >lient, :ec.

+1, p. (16=.

s &ar as !oral character is concerned, the standard reuired o& one seeking

reinstate!ent to the o@ce o& attorney cannot be less e/acting than that i!plied in

paragraph 0 o& the deed o& donation as a reuisite &or the o@ce which is disputed in

this case. -hen the de&endant was restored to the roll o& lawyers the restrictions

and disabilities resulting &ro! his previous disbar!ent were wiped out.

This action !ust &ail on one other ground5 it is already barred by lapse o& ti!e

a!ounting the prescription or laches. Hnder :ection 16 o& 8ule 66 ;&or!erly sec. 16,

8ule 6(, taken &ro! section 216 o& ct 19=, this kind o& action !ust be "led within

one ;1= year a&ter the right o& plainti? to hold the o@ce arose.

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Blainti? Desus #a. >ui believed hi!sel& entitled to the o@ce in uestion as long ago

as 1902. )n Danuary 26 o& that year he "led a co!plaint in uo warranto against *r.

Teodoro >ui, who assu!ed the ad!inistration o& the*ospicio on 2 Duly 1901.

#ariano >ui, the plainti?'s &ather and ntonio #a. >ui ca!e in as intervenors. The

case was dis!issed by the >ourt o& First Instance upon a de!urrer by the de&endant

there to the co!plaint and co!plaint in intervention. Hpon appeal to the :upre!e>ourt &ro! the order o& dis!issal, the case was re!anded &or &urther proceedings

;>ui v. >ui, 6 Bhil. 0%, +(=. The plainti?, however, did not prosecute the case as

indicated in the decision o& this >ourt, but acceded to an arrange!ent whereby

Teodoro >ui continued as ad!inistrator, #ariano >ui was na!ed legal adviser and

plainti? Desus #a. >ui accepted a position as assistant ad!inistrator.

:ubseuently the plainti? tried to get the position by a series o& e/traudicial

!aneuvers. First he in&or!ed the :ocial -el&are >o!!issioner, by letter dated 1

February 19$, that as o& the previous 1 Danuary he had !ade clear his intention

o& occupying the o@ce o& ad!inistrator o& the *ospicio. e &ollowed that up with

another letter dated + February, announcing that he had taken over the

ad!inistration as o& 1 Danuary 19$. ctually, however, he took his oath o& o@ce

be&ore a notary public only on + #arch 19$, a&ter receiving a reply o&

acknowledg!ent, dated 2 #arch, &ro! the :ocial -el&are >o!!issioner, who

thought that he had already assu!ed the position as stated in his co!!unication o&

+ February 19$. The rather !uddled situation was re&erred by the >o!!issioner to

the :ecretary o& Dustice, who, in an opinion dated 0 pril 19$ ;op. Co. +$, :. 19$=,

correcting another opinion previously given, in e?ect ruled that the plainti?, not

beings lawyer, was not entitled to the ad!inistration o& the*ospicio.

#eanwhile, the uestion again beca!e the subect o& a court controversy. )n +#arch 19$, the *ospicioco!!enced an action against the Bhilippine Cational 3ank

in the >ourt o& First Instance o& >ebu ;>iv. Co. 81216= because the 3ank had &ro4en

the *ospicio!s deposits therein. The 3ank then "led a thirdparty co!plaint against

herein plainti?appellee, Desus #a. >ui, who had, as stated above, taken oath as

ad!inistrator. )n 19 )ctober 19$, having been deprived o& recognition by the

opinion o& the :ecretary o& Dustice he !oved to dis!iss the thirdparty co!plaint on

the ground that he was relinuishing te!porarily his clai! to the ad!inistration o&

the *ospicio. The !otion was denied in an order dated 2 )ctober 19$0. )n 6

February 19$+ he was able to take another oath o& o@ce as ad!inistrator be&ore

Bresident #agsaysay, and soon a&terward "led a second !otion to dis!iss in >ivilcase Co. 81216. Bresident #agsaysay, be it said, upon learning that a case was

pending in >ourt, stated in a telegra! to his </ecutive :ecretary that as &ar as ;he=

was concerned the court !ay disregard the oath thus taken. The !otion to dis!iss

was granted nevertheless and the other parties in the case "led their notice o&

appeal &ro! the order o& dis!issal. The plainti? then "led an ex6parte !otion to be

e/cluded as party in the appeal and the trial >ourt again granted the !otion. This

was on 2+ Cove!ber 19$+. ppellants thereupon instituted

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a mandamus proceeding in the :upre!e >ourt ;.8. Co. ($+=, which was decided

on 2( #ay 19$6, to the e?ect that Desus #a. >ui should be included in the appeal.

That appeal, however, a&ter it reached this >ourt was dis!iss upon !otion o& the

parties, who agreed that the o@ce o& ad!inistrator and trustee o& the *ospicio ...

should be ventilated in uo warranto proceedings to be initiated against the

incu!bent by who!soever is not occupying the o@ce but believes he has a right toit ;.8. Co. 910=. The resolution o& dis!issal was issued 01 Duly 19$6. t that

ti!e the incu!bent ad!inistrator was *r. Teodoro >ui, but no action inuo

warranto was "led against hi! by plainti? Desus #a. >ui as indicated in the

a&oresaid !otion &or dis!issal.

)n 1 February 196, de&endant ntonio #a. >ui was reinstated by this >ourt as

!e!ber o& the 3ar, and on the &ollowing 2% February *r. Teodoro >ui resigned as

ad!inistrator in his &avor, pursuant to the convenio between the! e/ecuted on

the sa!e date. The ne/t day ntonio #a. >ui took his oath o& o@ce.

The &ailure o& the plainti? to prosecute his clai! udicially a&ter this >ourt decided

the "rst case o& $ui v. $ui in 190+ ;6 Bhil. 0%69=, re!anding it to the trial court &or

&urther proceedingsG his acceptance instead o& the position o& assistant

ad!inistrator, allowing *r. Teodoro >ui to continue as ad!inistrator and his &ailure

to "le an action inuo warranto against said *r. >ui a&ter 01 Duly 19$6, when the

appeal in >ivil >ase Co. 81216 o& the >ebu >ourt was dis!issed upon !otion o& the

parties precisely so that the conNicting clai!s o& the parties could be ventilated in

such an action U all these circu!stances !ilitate against the plainti?'s present

clai! in view o& the rule that an action in uo warranto !ust be "led within one

year a&ter the right o& the plainti? to hold the o@ce arose. The e/cuse that the

plainti? did not "le an action against *r. Teodoro >ui a&ter 01 Duly 19$6 because o& the latter's illness did not interrupt the running o& the statutory period. nd the &act

that this action was "led within one year o& the de&endant's assu!ption o& o@ce in

:epte!ber 196 does not !ake the plainti?'s position any better, &or the basis o&

the action is his own right to the o@ce and it is &ro! the ti!e such right arose that

the oneyear li!itation !ust be counted, not &ro! the date the incu!bent began to

discharge the duties o& said o@ce. Bautista v. 1a8ardo, 0( Bhil. 62+G Lim vs. 5ulo, 62

Bhil. 161.

Cow &or the clai! o& intervenor and appellant 8o!ulo >ui. This party is also a

lawyer, grandson o& Aicente >ui, one o& the nephews o& the &ounders o& the *ospicio !entioned by the! in the deed o& donation. e is &urther, in the line o&

succession, than de&endant ntonio #a. >ui, who is a son o& #ariano >ui, another

one o& the said nephews. The deed o& donation provides5 a la !uerte o incapacidad

de estos ad!inistradores ;those appointed in the deed itsel&= pasara a una sola

persona ue sera el varon, !ayor de edad, ue descienda legiti!a!ente de

cualuiera de nuestros sobrinos legiti!os #ariano >ui, #auricio >ui, Aicente >ui,

Aictor >ui, y ue posea titulo de abogado ... <n igualdad de circu!stancias, sera

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pre&erido el varon de !as edad descendiente de uien tenia ulti!a!ente la

ad!inistration. 3esides being a nearer descendant than 8o!ulo >ui, ntonio #a.

>ui is older than he and there&ore is pre&erred when the circu!stances are

otherwise eual. The intervenor contends that the intention o& the &ounders was to

con&er the ad!inistration by line and successively to the descendants o& the

nephews na!ed in the deed, in the order they are na!ed. Thus, he argues, sincethe last ad!inistrator was *r. Teodoro >ui, who belonged to the #auricio >ui line,

the ne/t ad!inistrator !ust co!e &ro! the line o& Aicente >ui, to who! the

intervenor belongs. This interpretation, however, is not usti"ed by the ter!s o& the

deed o& donation.

IC AI<- )F T< F)8<)IC >)C:I*<8TI)C:, the udg!ent appealed &ro! is

reversed and set aside, and the co!plaint as well as the co!plaint in intervention

are dis!issed, with costs eually against plainti?appellee and intervenorappellant.

Beng2on, $.%., Bautista )ngelo, $oncepcion, Reyes, %.B.L., 'aredes and Regala, %%.,

concur.

LEGAL ETHICS-CASES.docx

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