A.C. No.

9872

January 28, 2014

NATIVIDAD P. NAVARRO and HILDA S. PRESBITERO, Complainants,

vs.
ATTY. IVAN M. SOLIDUM, JR., Respondent.

DECISION

PER CURIAM:

This case originated from a complaint for disbarment, dated 26 May 2008, filed by
Natividad P. Navarro (Navarro) and Hilda S. Presbitero (Presbitero) against Atty. Ivan
M. Solidum, Jr. (respondent) before the Integrated Bar of the Philippines Commission
on Bar Discipline (IBP-CBD).

From the Report, dated 1July 2009, of the IBP-CBD, we gathered the following facts
of the case:

On 4 April 2006, respondent signed a retainer agreement with Presbitero to follow

up the release of the payment for the latters 2.7-hectare property located in
Bacolod which was the subject of a Voluntary Offer to Sell (VOS) to the Department
of Agrarian Reform (DAR). The agreement also included the payment of the debts of
Presbiteros late husband to the Philippine National Bank (PNB), the sale of the
retained areas of the property, and the collection of the rentals due for the retained
areas from their occupants. It appeared that the DAR was supposed to pay
P700,000 for the property but it was mortgaged by Presbitero and her late husband
to PNB for P1,200,000. Presbitero alleged that PNBs claim had already prescribed,
and she engaged the services of respondent to represent her in the matter.
Respondent proposed the filing of a case for quieting of title against PNB.
Respondent and Presbitero agreed to an attorneys fee of 10% of the proceeds from
the VOS or the sale of the property, with the expenses to be advanced by Presbitero
but deductible from respondents fees. Respondent received P50,000 from
Presbitero, supposedly for the expenses of the case, but nothing came out of it.

In May 2006, Presbiteros daughter, Ma. Theresa P. Yulo (Yulo), also engaged
respondents services to handle the registration of her 18.85-hectare lot located in
Nasud-ong, Caradio-an, Himamaylan, Negros. Yulo convinced her sister, Navarro, to

finance the expenses for the registration of the property. Respondent undertook to
register the property in consideration of 30% of the value of the property once it is
registered. Respondent obtained P200,000 from Navarro for the registration
expenses. Navarro later learned that the registration decree over the property was
already issued in the name of one Teodoro Yulo. Navarro alleged that she would not
have spent for the registration of the property if respondent only apprised her of the
real situation of the property.

On 25 May 2006, respondent obtained a loan of P1,000,000 from Navarro to finance

his sugar trading business. Respondent and Navarro executed a Memorandum of
Agreement (MOA) and agreed that the loan (a) shall be for a period of one year; (b)
shall earn interest at the rate of 10% per month; and (c) shall be secured by a real
estate mortgage over a property located in Barangay Alijis, Bacolod City, covered by
Transfer Certificate of Title No. 304688. They also agreed that respondent shall issue
postdated checks to cover the principal amount of the loan as well as the interest
thereon. Respondent delivered the checks to Navarro, drawn against an account in
Metrobank, Bacolod City Branch, and signed them in the presence of Navarro.

In June 2006, respondent obtained an additional loan of P1,000,000 from Navarro,

covered by a second MOA with the same terms and conditions as the first MOA.
Respondent sent Navarro, through a messenger, postdated checks drawn against an
account in Bank of Commerce, Bacolod City Branch. Respondent likewise discussed
with Navarro about securing a "Tolling Agreement" with Victorias Milling Company,
Inc. but no agreement was signed.

At the same time, respondent obtained a loan of P1,000,000 from Presbitero

covered by a third MOA, except that the real estate mortgage was over a 263square-meter property located in Barangay Taculing, Bacolod City. Respondent sent
Presbitero postdated checks drawn against an account in Metrobank, Bacolod City
Branch.

Presbitero was dissatisfied with the value of the 263-square-meter property

mortgaged under the third MOA, and respondent promised to execute a real estate
mortgage over a 1,000-square-meter parcel of land adjacent to the 4,000-squaremeter property he mortgaged to Navarro.

However, respondent did not execute a deed for the additional security.

Respondent paid the loan interest for the first few months. He was able to pay
complainants a total of P900,000. Thereafter, he failed to pay either the principal

amount or the interest thereon. In September 2006, the checks issued by

respondent to complainants could no longer be negotiated because the accounts
against which they were drawn were already closed. When complainants called
respondents attention, he promised to pay the agreed interest for September and
October 2006 but asked for a reduction of the interest to 7% for the succeeding
months.

In November 2006, respondent withdrew as counsel for Yulo. On the other hand,
Presbitero terminated the services of respondent as counsel. Complainants then
filed petitions for the judicial foreclosure of the mortgages executed by respondent
in their favor. Respondent countered that the 10% monthly interest on the loan was
usurious and illegal. Complainants also filed cases for estafa and violation of Batas
Pambansa Blg. 22 against respondent.

Complainants alleged that respondent induced them to grant him loans by offering
very high interest rates. He also prepared and signed the checks which turned out
to be drawn against his sons accounts. Complainants further alleged that
respondent deceived them regarding the identity and value of the property he
mortgaged because he showed them a different property from that which he owned.
Presbitero further alleged that respondent mortgaged his 263-square-meter
property to her for P1,000,000 but he later sold it for only P150,000.

Respondent, for his defense, alleged that he was engaged in sugar and realty
business and that it was Yulo who convinced Presbitero and Navarro to extend him
loans. Yulo also assured him that Presbitero would help him with the refining of raw
sugar through Victorias Milling Company, Inc. Respondent alleged that Navarro fixed
the interest rate and he agreed because he needed the money. He alleged that their
business transactions were secured by real estate mortgages and covered by
postdated checks. Respondent denied that the property he mortgaged to Presbitero
was less than the value of the loan. He also denied that he sold the property
because the sale was actually rescinded. Respondent claimed that the property he
mortgaged to Navarro was valuable and it was actually worth more than
P8,000,000.

Respondent alleged that he was able to pay complainants when business was good
but he was unable to continue paying when the price of sugar went down and when
the business with Victorias Milling Company, Inc. did not push through because
Presbitero did not help him. Respondent also denied that he was hiding from
complainants.

Respondent further alleged that it was Yulo who owed him P530,000 as interest due
for September to December 2005. He denied making any false representations. He
claimed that complainants were aware that he could no longer open a current
account and they were the ones who proposed that his wife and son issue the
checks. Respondent further alleged that he already started with the titling of Yulos
lot but his services were terminated before it could be completed.

A supplemental complaint was filed charging respondent with accepting cases while
under suspension. In response, respondent alleged that he accepted Presbiteros
case in February 2006 and learned of his suspension only in May 2006.

After conducting a hearing and considering the position papers submitted by the
parties, the IBP-CBD found that respondent violated the Code of Professional
Responsibility.

The IBP-CBD found that respondent borrowed P2,000,000 from Navarro and
P1,000,000 from Presbitero which he failed to pay in accordance with the MOAs he
executed. The IBP-CBD found that based on the documents presented by the
parties, respondent did not act in good faith in obtaining the loans. The IBP-CBD
found that respondent either promised or agreed to pay the very high interest rates
of the loans although he knew them to be exorbitant in accordance with
jurisprudence. Respondent likewise failed to deny that he misled Navarro and her
husband regarding the identity of the property mortgaged to them. Respondent also
mortgaged a property to Presbitero for P1,000,000 but documents showed that its
value was only P300,000. Documents also showed that he sold that property for
only P150,000. Respondent conspired with Yulo to secure loans by promising her a
10% commission and later claimed that they agreed that Yulo would "ride" on the
loan by borrowing P300,000 from the amount he obtained from Navarro and
Presbitero. Respondent could not explain how he lost all the money he borrowed in
three months except for his claim that the price of sugar went down.

The IBP-CBD found that respondent misled Navarro and Presbitero regarding the
issuance of the postdated checks, and there was nothing in the records that would
show that he informed them that it would be his wife or son who would issue the
checks. The IBP-CBD also found that respondent had not been transparent in
liquidating the money he received in connection with Presbiteros VOS with DAR. He
was also negligent in his accounting regarding the registration of Yulos property
which was financed by Navarro.

The IBP-CBD found that respondent was guilty of violating Rule 1.01 of the Code of
Professional Responsibility for committing the following acts:

(1) signing drawn checks against the account of his son as if they were from his own
account;

(2) misrepresenting to Navarro the identity of the lot he mortgaged to her;

(3) misrepresenting to Presbitero the true value of the 263-square-meter lot he

mortgaged to her;

(4) conspiring with Yulo to obtain the loans from complainants;

(5) agreeing or promising to pay 10% interest on his loans although he knew that it
was exorbitant; and

(6) failing to pay his loans because the checks he issued were dishonored as the
accounts were already closed.

The IBP-CBD also found that respondent violated Canon 16 and Rule 16.01 of the
Code of Professional Responsibility when he failed to properly account for the
various funds he received from complainants.

In addition, the IBP-CBD found that respondent violated Rule 16.04 of the Code of
Professional Responsibility which prohibits borrowing money from a client unless the
clients interest is fully protected or the client is given independent advice.

On the matter of practicing law while under suspension, the IBP-CBD found that the
records were not clear whether the notice of suspension respondent received on 29
May 2006 was the report and recommendation of the IBP-CBD or the final decision
of this Court. The IBP-CBD likewise found that there was insufficient evidence to
prove that respondent mishandled his cases.

The IBP-CBD recommended that respondent be meted the penalty of disbarment.

In Resolution No. XIX-2011-267 dated 14 May 2011, the IBP Board of Governors
adopted and approved the recommendation of the IBP-CBD with modification by
reducing the recommended penalty from disbarment to suspension from the
practice of law for two years. The IBP Board of Governors likewise ordered
respondent to return the amount of his unpaid obligation to complainants.

Complainants filed a motion for reconsideration, praying that the penalty of

disbarment be instead imposed upon respondent.

The only issue in this case is whether respondent violated the Code of Professional
Responsibility.

The records show that respondent violated at least four provisions of the Code of
Professional Responsibility.

Rule 1.01 of the Code of Professional Responsibility provides:

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

With respect to his client, Presbitero, it was established that respondent agreed to
pay a high interest rate on the loan he obtained from her. He drafted the MOA. Yet,
when he could no longer pay his loan, he sought to nullify the same MOA he drafted
on the ground that the interest rate was unconscionable. It was also established
that respondent mortgaged a 263-square-meter property to Presbitero for
P1,000,000 but he later sold the property for only P150,000, showing that he
deceived his client as to the real value of the mortgaged property. Respondents
allegation that the sale was eventually rescinded did not distract from the fact that
he did not apprise Presbitero as to the real value of the property.

Respondent failed to refute that the checks he issued to his client Presbitero and to
Navarro belonged to his son, Ivan Garcia Solidum III whose name is similar to his
name. He only claimed that complainants knew that he could no longer open a
current bank account, and that they even suggested that his wife or son issue the
checks for him. However, we are inclined to agree with the IBP-CBDs finding that he
made complainants believe that the account belonged to him. In fact, respondent
signed in the presence of Navarro the first batch of checks he issued to Navarro.
Respondent sent the second batch of checks to Navarro and the third batch of

checks to Presbitero through a messenger, and complainants believed that the

checks belonged to accounts in respondents name.

It is clear that respondent violated Rule 1.01 of the Code of Professional

Responsibility. We have ruled that conduct, as used in the Rule, is not confined to
the performance of a lawyers professional duties.1 A lawyer may be disciplined for
misconduct committed either in his professional or private capacity.2 The test is
whether his conduct shows him to be wanting in moral character, honesty, probity,
and good demeanor, or whether it renders him unworthy to continue as an officer of
the court.3

In this case, the loan agreements with Navarro were done in respondents private
capacity. Although Navarro financed the registration of Yulos lot, respondent and
Navarro had no lawyer-client relationship. However, respondent was Presbiteros
counsel at the time she granted him a loan. It was established that respondent
misled Presbitero on the value of the property he mortgaged as a collateral for his
loan from her. To appease Presbitero, respondent even made a Deed of Undertaking
that he would give her another 1,000-square-meter lot as additional collateral but
he failed to do so.

Clearly, respondent is guilty of engaging in dishonest and deceitful conduct, both in

his professional capacity with respect to his client, Presbitero, and in his private
capacity with respect to complainant Navarro. Both Presbitero and Navarro allowed
respondent to draft the terms of the loan agreements. Respondent drafted the
MOAs knowing that the interest rates were exorbitant. Later, using his knowledge of
the law, he assailed the validity of the same MOAs he prepared. He issued checks
that were drawn from his sons account whose name was similar to his without
informing complainants. Further, there is nothing in the records that will show that
respondent paid or undertook to pay the loans he obtained from complainants.

Canon 16 and Rule 16.01 of the Code of Professional Responsibility provide:

CANON 16. - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF
HIS CLIENT THAT MAY COME INTO HIS POSSESSION.

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

The fiduciary nature of the relationship between the counsel and his client imposes
on the lawyer the duty to account for the money or property collected or received
for or from his client.4 We agree with the IBP-CBD that respondent failed to fulfill
this duty. In this case, the IBP-CBD pointed out that respondent received various
amounts from complainants but he could not account for all of them.

Navarro, who financed the registration of Yulos 18.85-hectare lot, claimed that
respondent received P265,000 from her. Respondent countered that P105,000 was
paid for real estate taxes but he could not present any receipt to prove his claim.
Respondent also claimed that he paid P70,000 to the surveyor but the receipt was
only for P15,000. Respondent claimed that he paid P50,000 for filing fee, publication
fee, and other expenses but again, he could not substantiate his claims with any
receipt. As pointed out by the IBP-CBD, respondent had been less than diligent in
accounting for the funds he received from Navarro for the registration of Yulos
property.

Unfortunately, the records are not clear whether respondent rendered an

accounting to Yulo who had since passed away.

As regards Presbitero, it was established during the clarificatory hearing that

respondent received P50,000 from Presbitero. As the IBP-CBD pointed out, the
records do not show how respondent spent the funds because he was not
transparent in liquidating the money he received from Presbitero.

Clearly, respondent had been negligent in properly accounting for the money he
received from his client, Presbitero.1wphi1 Indeed, his failure to return the excess
money in his possession gives rise to the presumption that he has misappropriated
it for his own use to the prejudice of, and in violation of the trust reposed in him by,
the client.5

Rule 16.04 of the Code of Professional Responsibility provides:

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

Here, respondent does not deny that he borrowed P1,000,000 from his client
Presbitero. At the time he secured the loan, respondent was already the retained
counsel of Presbitero.

While respondents loan from Presbitero was secured by a MOA, postdated checks
and real estate mortgage, it turned out that respondent misrepresented the value of
the property he mortgaged and that the checks he issued were not drawn from his
account but from that of his son. Respondent eventually questioned the terms of the
MOA that he himself prepared on the ground that the interest rate imposed on his
loan was unconscionable. Finally, the checks issued by respondent to Presbitero
were dishonored because the accounts were already closed. The interest of his
client, Presbitero, as lender in this case, was not fully protected. Respondent
violated Rule 16.04 of the Code of Professional Responsibility, which presumes that
the client is disadvantaged by the lawyers ability to use all the legal maneuverings
to renege on his obligation.6 In his dealings with his client Presbitero, respondent
took advantage of his knowledge of the law as well as the trust and confidence
reposed in him by his client.

We modify the recommendation of the IBP Board of Governors imposing on

respondent the penalty of suspension from the practice of law for two years. Given
the facts of the case, we see no reason to deviate from the recommendation of the
IBP-CBD imposing on respondent the penalty of disbarment. Respondent failed to
live up to the high standard of morality, honesty, integrity, and fair dealing required
of him as a member of the legal profession.7 Instead, respondent employed his
knowledge and skill of the law and took advantage of his client to secure undue
gains for himself8 that warrants his removal from the practice of law. Likewise, we
cannot sustain the IBP Board of Governors recommendation ordering respondent to
return his unpaid obligation to complainants, except for advances for the expenses
he received from his client, Presbitero, that were not accounted at all. In disciplinary
proceedings against lawyers, the only issue is whether the officer of the court is still
fit to be allowed to continue as a member of the Bar.9 Our only concern is the
determination of respondents administrative liability.10

Our findings have no material bearing on other judicial action which the parties may
choose to file against each other.11 Nevertheless, when a lawyer receives money
from a client for a particular purpose involving the client-attorney relationship, he is
bound to render an accounting to the client showing that the money was spent for
that particular purpose.12 If the lawyer does not use the money for the intended
purpose, he must immediately return the money to his client.13 Respondent was
given an opportunity to render an accounting, and he failed. He must return the full
amount of the advances given him by Presbitero, amounting to P50,000.

WHEREFORE, the Court finds Atty. Ivan M. Solidum, Jr. GUILTY of violating Rule 1.01,
Canon 16, Rule 16.01, and Rule 16.04 of the Code of Professional Responsibility.
Accordingly, the Court DISBARS him from the practice of law effective immediately
upon his receipt of this Decision.

Atty. Solidum is ORDERED to return the advances he received from Hilda S.

Presbitero, amounting to P50,000, and to submit to the Office of the Bar Confidant
his compliance with this order within thirty days from finality of this Decision.

Let copies of this Decision be furnished the Office of the Bar Confidant, the
Integrated Bar of the Philippines for distribution to all its chapters, and the Office of
the Court Administrator for dissemination to all courts all over the country. Let a
copy of this Decision be attached to the personal records of respondent.

SO ORDERED.
A.C. No. 8761

February 12, 2014

WILBERTO C. TALISIC, Complainant,

vs.
ATTY. PRIMO R. RINEN, Respondent.

RESOLUTION

REYES, J.:

This is an administrative case instituted by complainant Wilberto C. Talisic (Wilberto)

against Atty. Primo R. Rinen1 (Atty. Rinen), charging the latter with falsification of an
Extra Judicial Partition with Sale2 which allowed the transfer to spouses Benjamin
Durante and Eleonor Lavifia (Spouses Durante) of a parcel of land formerly owned
by Wilberto's mother, Aurora Corpuz (Aurora). The property, measuring 3,817
square meters and situated in Barangay Langgas, Infanta, Quezon, was formerly
covered by Original Certificate of Title No. P-4875 under Aurora's name.3 After Atty.
Rinen filed his comment on the complaint, the Court referred the case to the
Integrated Bar of the Philippines (IBP), Commission on Bar Discipline, for
investigation, report and recommendation.4

Wilberto claimed that his mother Aurora died on May 7, 1987, leaving behind as
heirs her spouse, Celedonio Talisic, and their three children, namely: Arlene Talisic
Villarazo, Wilberto and Alvin Corpuz Talisic. It was only after his fathers death on
November 2, 2000 that Wilberto and his siblings knew of the transfer of the subject
parcel via the subject deed. While Wilberto believed that his fathers signature on
the deed was authentic, his and his siblings supposed signatures were merely
forged. Wilberto also pointed out that even his name was erroneously indicated in
the deed as "Wilfredo".5

For his defense, Atty. Rinen denied the charge against him and explained that it was
only on April 7, 1994 that he came to know of the transaction between the Spouses
Durante and the Talisics, when they approached him in his office as the then
Presiding Judge of the Municipal

Trial Court, Real, Quezon, to have the subject deed prepared and notarized. His clerk
of court prepared the deed and upon its completion, ushered the parties to his office
for the administration of oath.6 The deed contained his certification that at the time
of the documents execution, "no notary public was available to expedite the
transaction of the parties." Notarial fees paid by the parties were also covered by a
receipt issued by the Treasurer of the Municipality of Real, Quezon.7

After due proceedings, Investigating Commissioner Felimon C. Abelita III

(Commissioner Abelita) issued the Report and Recommendation8 dated November
20, 2012 for the cancellation of Atty. Rinens notarial commission and his
suspension from notarial practice for a period of one year.9 The report indicated
that per Atty. Rinens admission, the subject deed was prepared in his office and
acknowledged before him. Although there was no evidence of forgery on his part, he
was negligent in not requiring from the parties to the deed their presentation of
documents as proof of identity. Atty. Rinens failure to properly satisfy his duties as a
notary public was also shown by the inconsistencies in the dates that appear on the
deed, to wit: "1994 as to the execution; 1995 when notarized; [and] entered as
Series of 1992 in the notarial book x x x."10

In the meantime, Atty. Rinen filed a motion for reconsideration11 of Commissioner

Abelitas recommendation. The IBP Board of Governors, nonetheless, adopted and
approved on March 20, 2013, via Resolution No. XX-2013-247, the Investigating
Commissioners Report and Recommendation.12

The Court agrees with the findings and recommendations of the IBP.

"[F]aithful observance and utmost respect of the legal solemnity of the oath in an
acknowledgment or jurat is sacrosanct."13 "The notarization of a document carries
considerable legal effect. Notarization of a private document converts such
document into a public one, and renders it admissible in court without further proof
of its authenticity.1wphi1 Thus, notarization is not an empty routine; to the
contrary, it engages public interest in a substantial degree x x x."14

It must then be stressed that, "a notary publics function should not be trivialized
and a notary public must discharge his powers and duties which are impressed with
public interest, with accuracy and fidelity."15 Towards this end, the Court
emphasized in Bautista v. Atty. Bernabe16 that "[a] notary public should not
notarize a document unless the persons who signed the same are the very same
persons who executed and personally appeared before him to attest to the contents
and truth of what are stated therein. The presence of the parties to the deed will
enable the notary public to verify the genuineness of the signature of the affiant."17

In the present case, Atty. Rinen did not deny his failure to personally verify the
identity of all parties who purportedly signed the subject document and whom, as
he claimed, appeared before him on April 7, 1994. Such failure was further shown
by the fact that the pertinent details of the community tax certificates of Wilberto
and his sister, as proof of their identity, remained unspecified in the subject deeds
acknowledgment portion. Clearly, there was a failure on the part of Atty. Rinen to
exercise the due diligence that was required of him as a notary public ex-officio. The
lapses he committed in relation to such function then justified the recommendations
presented by the IBP.

The fact that Atty. Rinen was a trial court judge during the time that he
administered the oath for the subject deed did not relieve him of compliance with
the same standards and obligations imposed upon other commissioned notaries
public. He also could not have simply relied on his clerk of court to perform the
responsibilities attached to his function, especially as it pertained to ensuring that
the parties to the document were then present, performing an act that was of their
own free will and deed. "Notarization is not an empty, meaningless, routinary act. It
is invested with substantive public interest, such that only those who are qualified
or authorized may act as notaries public."18 It converts a private document into a
public one, making it admissible in court without further proof of its authenticity.
Thus, "notaries public must observe with utmost care the basic requirements in the
performance of their duties."19 Otherwise, the confidence of the public in the
integrity of public instruments would be undermined.20

WHEREFORE, as recommended by the Integrated Bar of the Philippines, the Court

REVOKES the notarial commission which Atty. Primo R. Rinen may presently have,

and DISQUALIFIES him from being commissioned as a notary public for one year,
effective immediately. He is WARNED that a repetition of the same or similar act in
the future shall merit a more severe sanction. He is DIRECTED to report to this Court
the date of his receipt of this Resolution to enable it to determine when the
revocation of his notarial commission and his disqualification from being
commissioned as notary public shall take effect.

Let copies of this Resolution be furnished the Office of the Bar Confidant to be
appended to Atty. Primo R. Rinen's personal record. Likewise, copies shall be
furnished to the Integrated Bar of the Philippines and all courts in the country for
their information and guidance.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

A.C. No. 10135

January 15, 2014

EDGARDO AREOLA, Complainant,

vs.
ATTY. MARIA VILMA MENDOZA, Respondent.

RESOLUTION

REYES, J.:

This refers to the administrative complaint1 filed by Edgardo D. Areola (Areola)

a.k.a. Muhammad Khadafy against Atty. Maria Vilma Mendoza (Atty. Mendoza), from
the Public Attorney s Office (PAO) for violation of her attorney s oath of office,
deceit, malpractice or other gross misconduct in office under Section 27, Rule 138 of
the Revised Rules of Court, and for violation of the Code of Professional
Responsibility.

In the letter-complaint dated November 13, 2006 addressed to the Honorable

Commissioners, Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP), Areola stated that he was filing the complaint in behalf of his codetainees Allan Seronda, Aaron Arca, Joselito Mirador, Spouses Danilo Perez and
Elizabeth Perez. He alleged that on October 23, 2006, during Prisoners Week, Atty.
Mendoza, visited the Antipolo City Jail and called all detainees with pending cases
before the Regional Trial Court (RTC), Branch 73, Antipolo City where she was
assigned, to attend her speech/lecture.2 Areola claimed that Atty. Mendoza stated
the following during her speech:

"O kayong may mga kasong drugs na may pangpiyansa o pang- areglo ay maging
praktikal sana kayo kung gusto ninyong makalaya agad. Upang makatiyak kayo na
hindi masasayang ang pera ninyo ay sa akin ninyo ibigay o ng kamag-anak ninyo
ang pera at ako na ang bahalang maglagay kay Judge Martin at Fiscal banqui; at
kayong mga detenidong mga babae na no bail ang kaso sa drugs, iyak-iyakan lang
ninyo si Judge Martin at palalayain na kayo. Malambot ang puso noon."3

Atty. Mendoza allegedly said that as she is handling more than 100 cases, all
detainees should prepare and furnish her with their Sinumpaang Salaysay so that
she may know the facts of their cases and their defenses and also to give her the
necessary payment for their transcript of stenographic notes.4

Areola furthermore stated that when he helped his co-inmates in drafting their
pleadings and filing motions before the RTC Branch 73, Antipolo City, Atty. Mendoza
undermined his capability, to wit:

(1) Atty. Mendoza purportedly scolded detainee Seronda when she learned that the
latter was assisted by Areola in filing a Motion to Dismiss for Violation of Republic
Act No. 8942 (Speedy Trial Act of 1998) in the latters criminal case for rape, which
was pending before the RTC, Branch 73, Antipolo City. She got angrier when Seronda
retorted that he allowed Areola to file the motion for him since there was nobody to
help him.

(2) Areola assisted Spouses Danilo and Elizabeth Perez in filing their Joint Motion for
Consolidation of Trial of Consolidated Offenses and Joint Motion to Plead Guilty to a
Lesser Offense. The spouses were likewise scolded for relying on the Complainant
and alleged that the respondent asked for P2,000.00 to represent them.

(3) Areola helped another co-detainee, Mirador in filing an "Ex-parte Motion to Plead
Guilty to a Lesser Offense". When Atty. Mendoza learned of it, she allegedly scolded
Mirador and discredited Areola.5

In her unverified Answer6 dated January 5, 2007, Atty. Mendoza asseverated that
the filing of the administrative complaint against her is a harassment tactic by
Areola as the latter had also filed several administrative cases against judges in the
courts of Antipolo City including the jail warden of Taytay, Rizal where Areola was
previously detained. These actuations show that Areola has a penchant for filing
various charges against anybody who does not accede to his demand.7 Atty.
Mendoza contended that Areola is not a lawyer but represented himself to his codetainees as one.8 She alleged that the motions/pleadings prepared and/or filed by
Areola were not proper.

After both parties failed to appear in the Mandatory Conference set by the IBP on
August 15, 2008, the Investigating Commissioner considered the non-appearance as
a waiver on their part. Nonetheless, in the interest of justice, both parties were
required to submit their respective position papers.9

On December 29, 2009, the Investigating Commissioner issued his Report and
Recommendation.10 The Investigating Commissioner stated that the Complainant is
knowledgeable in the field of law. While he may be of service to his fellow
detainees, he must, however, be subservient to the skills and knowledge of a full
fledged lawyer. He however found no convincing evidence to prove that Atty.
Mendoza received money from Areolas co-detainees as alleged. The charges
against Atty. Mendoza were also uncorroborated, viz:

There is no convincing evidence that will prove that the respondent received money
from the inmates since the charges are uncorroborated. In fact, the complainant is
not the proper party to file the instant case since he was not directly affected or
injured by the act/s being complained of. No single affidavits of the affected persons
were attached to prove the said charges. Hence, it is simply hearsay in nature.11

Nonetheless, Atty. Mendoza admitted in her Answer that she advised her clients and
their relatives to approach the judge and the fiscal "to beg and cry" so that their
motions would be granted and their cases against them would be dismissed. To the
Investigating Commissioner, this is highly unethical and improper as the act of Atty.
Mendoza degrades the image of and lessens the confidence of the public in the
judiciary.12 The Investigating Commissioner recommended that Atty. Mendoza be
suspended from the practice of law for a period of two (2) months.13

In a Notice of Resolution14 dated November 19, 2011, the Board of Governors

resolved to adopt and approve the Report and Recommendation of the Investigating
Commissioner.

Atty. Mendoza sought to reconsider the Resolution15 dated November 19, 2011 but
the IBP Board of Governors denied her motion in its Resolution16 dated May 10,
2013. The Resolution of the IBP Board of Governors was transmitted to the Court for
final action pursuant to Rule 139-B, Section 12, Paragraph b17 of the Revised Rules
of Court.

The Courts Ruling

After a judicious examination of the records, the Court finds that the instant
Complaint against Atty. Mendoza profoundly lacks evidence to support the
allegations contained therein. All Areola has are empty assertions against Atty.
Mendoza that she demanded money from his co-detainees.

The Court agrees with the IBP that Areola is not the proper party to file the
Complaint against Atty. Mendoza. He is not even a client of Atty. Mendoza. He claims
that he filed the Complaint on behalf of his co-detainees Seronda, Arca, Mirador and
Spouses Perez, but it is apparent that no document was submitted which would
show that they authorized Areola to file a Complaint. They did not sign the
Complaint he prepared. No affidavit was even executed by the said co-detainees to
substantiate the matters Areola raised. Consequently, the Court rejects Areolas
statements, especially as regards Atty. Mendozas alleged demands of money.

The Court agrees with the observations of the Investigating Commissioner that
Areola initiated this complaint when he felt insulted because Atty. Mendoza refused
to acknowledge the pleadings and motions he prepared for his co-detainees who are
PAO clients of Atty. Mendoza.18 It appears that Areola is quite knowledgeable with
Philippine laws. However, no matter how good he thinks he is, he is still not a
lawyer. He is not authorized to give legal advice and file pleadings by himself before
the courts. His familiarity with Philippine laws should be put to good use by
cooperating with the PAO instead of filing baseless complaints against lawyers and
other government authorities. It seems to the Court that Areola thinks of himself as
more intelligent and better than Atty. Mendoza, based on his criticisms against her.
In his Reply19, he made fun of her grammatical errors and tagged her as using
carabao english20. He also called the PAO as "Pa-Amin Office"21 which seriously
undermines the reputation of the PAO. While Areola may have been frustrated with

the way the PAO is managing the significant number of cases it deals with, all the
more should he exert efforts to utilize his knowledge to work with the PAO instead of
maligning it.

Interestingly, Atty. Mendoza admitted that she advised her clients to approach the
judge and plead for compassion so that their motions would be granted. This
admission corresponds to one of Areolas charges against Atty. Mendozathat she
told her clients " Iyak-iyakan lang ninyo si Judge Martin at palalayain na kayo.
Malambot ang puso noon." Atty. Mendoza made it appear that the judge is easily
moved if a party resorts to dramatic antics such as begging and crying in order for
their cases to be dismissed.

As such, the Court agrees with the IBP Board of Governors that Atty. Mendoza made
irresponsible advices to her clients in violation of Rule 1.02 and Rule 15.07 of the
Code of Professional Responsibility. It is the mandate of Rule 1.02 that "a lawyer
shall not counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal system." Rule 15.07 states that "a lawyer shall impress upon
his client compliance with the laws and the principles of fairness."

Atty. Mendozas improper advice only lessens the confidence of the public in our
legal system. Judges must be free to judge, without pressure or influence from
external forces or factors22 according to the merits of a case. Atty. Mendozas
careless remark is uncalled for.

It must be remembered that a lawyers duty is not to his client but to the
administration of justice.1wphi1 To that end, his clients success is wholly
subordinate. His conduct ought to and must always be scrupulously observant of
the law and ethics. Any means, not honorable, fair and honest which is resorted to
by the lawyer, even in the pursuit of his devotion to his clients cause, is
condemnable and unethical.23

In spite of the foregoing, the Court deems the penalty of suspension for two (2)
months as excessive and not commensurate to Atty. Mendozas infraction.
Disbarment and suspension of a lawyer, being the most severe forms of disciplinary
sanction, should be imposed with great caution and only in those cases where the
misconduct of the lawyer as an officer of the court and a member of the bar is
established by clear, convincing and satisfactory proof.24 The Court notes that
when Atty. Mendoza made the remark "Iyak-iyakan lang ninyo si Judge Martin at
palalayain na kayo. Malambot ang puso noon", she was not compelled by bad faith
or malice. While her remark was inappropriate and unbecoming, her comment is not
disparaging and reproachful so as to cause dishonor and disgrace to the Judiciary.

In several administrative cases, the Court has refrained from imposing the actual
penalties in the presence of mitigating factors. Factors such as the respondents
length of service, the respondents acknowledgement of his or her infractions and
feeling of remorse, family circumstances, humanitarian and equitable
considerations, respondents advanced age, among other things, have had varying
significance in the Courts determination of the imposable penalty.25 The Court
takes note of Atty. Mendozas lack of ill-motive in the present case and her being a
PAO lawyer as her main source of livelihood.26 Furthermore, the complaint filed by
Areola is clearly baseless and the only reason why this was ever given consideration
was due to Atty. Mendozas own admission. For these reasons, the Court deems it
just to modify and reduce the penalty recommended by the IBP Board of Governors.

WHEREFORE, premises considered, the Court finds Atty. Maria Vilma Mendoza
GUILTY of giving improper advice to her clients in violation of Rule 1.02 and Rule
15.07 of the Code of Professional Responsibility and is accordingly meted out the
penalty of REPRIMAND, with the STERN WARNING that a repetition of the same or
similar act will be dealt with more severely.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:
A.C. No. 4545

February 5, 2014

CARLITO ANG, Complainant,

vs.
ATTY. JAMES JOSEPH GUPANA, Respondent.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review under Rule 139-B, Section 12(c) of the Rules of
Court assailing Resolution Nos. XVII-2005-1411 and XVIII-2008-6982 of the Board of
Governors of the Integrated Bar of the Philippines (IBP). The IBP Board of Governors
found respondent Atty. James Joseph Gupana administratively liable and imposed on
him the penalty of suspension for one year from the practice of law and the
revocation of his notarial commission and disqualification from reappointment as
notary public for two years.

The case stemmed from an affidavit-complaint3 filed by complainant Carlito Ang

against respondent. Ang alleged that on May 31, 1991, he and the other heirs of the
late Candelaria Magpayo, namely Purificacion Diamante and William Magpayo,
executed an Extra-judicial Declaration of Heirs and Partition4 involving Lot No. 2066B-2-B which had an area of 6,258 square meters and was covered by Transfer
Certificate of Title (TCT) No. (T-22409)-6433. He was given his share of 2,003 square
meters designated as Lot No. 2066-B-2-B-4, together with all the improvements
thereon.5 However, when he tried to secure a TCT in his name, he found out that
said TCT No. (T-22409)-6433 had already been cancelled and in lieu thereof, new
TCTs6 had been issued in the names of William Magpayo, Antonio Diamante, Patricia
Diamante, Lolita D. Canque, Gregorio Diamante, Jr. and Fe D. Montero.

Ang alleged that there is reasonable ground to believe that respondent had a direct
participation in the commission of forgeries and falsifications because he was the
one who prepared and notarized the Affidavit of Loss7 and Deed of Absolute Sale8
that led to the transfer and issuance of the new TCTs. Ang pointed out that the Deed
of Absolute Sale which was allegedly executed by Candelaria Magpayo on April 17,
1989, was antedated and Candelaria Magpayos signature was forged as clearly
shown by the Certification9 issued by the Office of the Clerk of Court of the Regional
Trial Court (RTC) of Cebu. Further, the certified true copy of page 37, Book No. XII,
Series of 1989 of respondents Notarial Report indubitably showed that Doc. No. 181
did not refer to the Deed of Absolute Sale, but to an affidavit.10 As to the Affidavit
of Loss, which was allegedly executed by the late Candelaria Magpayo on April 29,
1994, it could not have been executed by her as she Died11 three years prior to the
execution of the said affidavit of loss.

Ang further alleged that on September 22, 1995, respondent made himself the
attorney-in-fact of William Magpayo, Antonio Diamante, Patricia Diamante, Lolita
Canque, Gregorio Diamante, Jr. and Fe D. Montero, and pursuant to the Special
Power of Attorney in his favor, executed a Deed of Sale12 selling Lot No. 2066-B-2B-4 to Lim Kim So Mercantile Co. on October 10, 1995. Ang complained that the sale
was made even though a civil case involving the said parcel of land was pending
before the RTC of Mandaue City, Cebu.13

In his Comment,14 respondent denied any wrongdoing and argued that Ang is
merely using the present administrative complaint as a tool to force the defendants
in a pending civil case and their counsel, herein respondent, to accede to his
wishes. Respondent averred that Ang had filed Civil Case No. Man-2202 before
Branch 55 of the Mandaue City RTC. He anchored his claim on the Extra-judicial
Declaration of Heirs and Partition and sought to annul the deed of sale and prayed
for reconveyance of the subject parcel of land. During the pre-trial conference in
Civil Case No. Man-2202, Ang admitted that he is not an heir of the late Candelaria
Magpayo but insisted on his claim for a share of the lot because he is allegedly the
son of the late Isaias Ang, the common-law husband of Candelaria Magpayo.
Because of his admission, the notice of lis pendens annotated in the four certificates
of title of the land in question were ordered cancelled and the land effectively
became available for disposition. Ang sought reconsideration of the order, but a
compromise was reached that only one TCT (TCT No. 34266) will be annotated with
a notice of lis pendens. Respondent surmised that these developments in Civil Case
No. Man-2202 meant that Ang would lose his case so Ang resorted to the filing of
the present administrative complaint. Thus, respondent prayed for the dismissal of
the case for being devoid of any factual or legal basis, or in the alternative, holding
resolution of the instant case in abeyance pending resolution of Civil Case No. Man2202 allegedly because the issues in the present administrative case are similar to
the issues or subject matters involved in said civil case.

Investigating Commissioner Lydia A. Navarro of the IBP Commission on Bar

Discipline, to whom the case was referred for investigation, report and
recommendation, submitted her Report and Recommendation15 finding respondent
administratively liable. She recommended that respondent be suspended from the
practice of law for three months. She held that respondent committed an unethical
act when he allowed himself to be an instrument in the disposal of the subject
property through a deed of sale executed between him as attorney-in-fact of his
client and Lim Kim So Mercantile Co. despite his knowledge that said property is the
subject of a pending litigation before the RTC of Mandaue City, Cebu. The
Investigating Commissioner additionally found that respondent "delegated the
notarial functions to the clerical staff of their office before being brought to him for
his signature." This, according to the commissioner, "must have been the reason for
the forged signatures of the parties in the questioned documentas well as the
erroneous entry in his notarial register."16 Nonetheless, the Investigating
Commissioner merely reminded respondent to be more cautious in the performance
of his duties as regards his infraction of his notarial duties. She held, Respondent
should have been more cautious in his duty as notary public which requires that the
party subscribing to the authenticity of the document should personally appear and
sign the same before respondents actual presence. As such notary public
respondent should not delegate to any unqualified person the performance of any
task which by law may only be performed by a member of the bar in accordance
with Rule 9.0117 of the Code of Professional Responsibility.18

On November 12, 2005, the Board of Governors of the IBP issued Resolution No.
XVII-2005-141,19 adopting the findings of the Investigating Commissioner but
modifying the recommended penalty. Instead of suspension for three months, the
Board recommended the penalty of suspension from the practice of law for one year
and revocation of respondents notarial commission and disqualification from
reappointment as notary public for two years.

Respondent filed a motion for reconsideration,20 arguing that it was neither illegal
nor unethical for a lawyer to accept appointment as attorney-in-fact of a client to
sell a property involved in a pending litigation and to act as such. He further
contended that granting that his act was unethical, the modified penalty was
evidently too harsh and extremely excessive considering that the act complained of
was not unlawful and done without malice.

On December 11, 2008, the IBP Board of Governors adopted Resolution No. XVIII2008-69821 denying respondents motion for reconsideration and affirming
Resolution No. XVII-2005-141. Hence, this petition for review.

Respondent reiterates that being commissioned by his own clients to sell a portion
of a parcel of land, part of which is involved in litigation, is not per se illegal or
unethical. According to him, his clients got his help to sell part of the land and
because they were residing in different provinces, they executed a Special Power of
Attorney in his favor.22

We affirm the resolution of the IBP Board of Governors finding respondent

administratively liable.

After reviewing the records of the case, the Court finds that respondent did not act
unethically when he sold the property in dispute as the sellers attorney-in-fact
because there was no more notice of lis pendens annotated on the particular lot
sold. Likewise, the Court finds no sufficient evidence to show that the Deed of
Absolute Sale executed by Candelaria Magpayo on April 17, 1989 was antedated.

However, the Court finds respondent administratively liable for violation of his
notarial duties when he failed to require the personal presence of Candelaria
Magpayo when he notarized the Affidavit of Loss which Candelaria allegedly
executed on April 29, 1994. Section 1 of Public Act No. 2103, otherwise known as
the Notarial Law, explicitly provides:

Sec. 1. x x x

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

From the foregoing, it is clear that the party acknowledging must appear before the
notary public or any other person authorized to take acknowledgments of
instruments or documents.23 In the case at bar, the jurat of the Affidavit of Loss
stated that Candelaria subscribed to the affidavit before respondent on April 29,
1994, at Mandaue City. Candelaria, however, was already dead since March 26,
1991. Hence, it is clear that the jurat was made in violation of the notarial law.
Indeed, respondent averred in his position paper before the IBP that he did not in
fact know Candelaria personally before, during and after the notarization24 thus
admitting that Candelaria was not present when he notarized the documents.

Time and again, we have held that notarization of a document is not an empty act
or routine.25 Thus, in Bernardo v. Atty. Ramos,26 the Court emphasized the
significance of the act of notarization, to wit:

The importance attached to the act of notarization cannot be overemphasized.

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

For this reason notaries public must observe with utmost care the basic
requirements in the performance of their duties. Otherwise, the confidence of the
public in the integrity of this form of conveyance would be undermined. Hence a
notary public should not notarize a document unless the persons who signed the
same are the very same persons who xecuted and personally appeared before him
to attest to the contents and truth of what are stated therein. The purpose of this

requirement is to enable the notary public to verify the genuineness of the signature
of the acknowledging party and to ascertain that the document is the partys free
act and deed.

A notary publics function should not be trivialized and a notary public must
discharge his powers and duties which are impressed with public interest, with
accuracy and fidelity.27 It devolves upon respondent to act with due care and
diligence in stamping fiat on the questioned documents. Respondents failure to
perform his duty as a notary public resulted in undermining the integrity of a notary
public and in degrading the function of notarization. Hence, he should be liable for
his infraction, not only as a notary public but also as a lawyer.

As a lawyer commissioned as notary public, respondent is mandated to subscribe to

the sacred duties appertaining to his office, such duties being dictated by public
policy impressed with public interest. Faithful observance and utmost respect of the
legal solemnity of the oath in an acknowledgment or jurat is sacrosanct.1wphi1
Simply put, such responsibility is incumbent upon respondent and failing therein, he
must now accept the commensurate consequences of his professional
indiscretion.28 As the Court has held in Flores v. Chua,29

Where the notary public is a lawyer, a graver responsibility is placed upon his
shoulder by reason of his solemn oath to obey the laws and to do no falsehood or
consent to the doing of any. The Code of Professional Responsibility also commands
him not to engage in unlawful, dishonest, immoral or deceitful conduct and to
uphold at all times the integrity and dignity of the legal profession. (Emphasis
supplied.)

Respondent likewise violated Rule 9.01, Canon 9, of the Code of Professional

Responsibility which provides that "[a] lawyer shall not delegate to any unqualified
person the performance of any task which by law may only be performed by a
member of the Bar in good standing." Respondent averred in his position paper that
it had been his consistent practice to course through clerical staff documents to be
notarized. Upon referral, said clerical staff investigates whether the documents are
complete as to the fundamental requirements and inquires as to the identity of the
individual signatories thereto. If everything is in order, they ask the parties to sign
the documents and forward them to him and he again inquires about the identities
of the parties before affixing his notarial signature.30 It is also his clerical staff who
records entries in his notarial report. As aforesaid, respondent is mandated to
observe with utmost care the basic requirements in the performance of his duties as
a notary and to ascertain that the persons who signed the documents are the very
same persons who executed and personally appeared before him to attest to the
contents and truth of what are stated therein. In merely relying on his clerical staff

to determine the completeness of documents brought to him for notarization,

limiting his participation in the notarization process to simply inquiring about the
identities of the persons appearing before him, and in notarizing an affidavit
executed by a dead person, respondent is liable for misconduct. Under the facts and
circumstances of the case, the revocation of his notarial commission,
disqualification from being commissioned as a notary public for a period of two
years and suspension from the practice of law for one year are in order.31

WHEREFORE, respondent Atty. James Joseph Gupana is found administratively liable

for misconduct and is SUSPENDED from the practice of law for one year. Further, his
notarial commission, if any, is REVOKED and he is disqualified from reappointment
as Notary Public for a period of two years, with a stem warning that repetition of the
same or similar conduct in the future will be dealt with more severely.

Let copies of this Decision be furnished to the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and all courts all over the country. Let a copy of
this Decision likewise be attached to the personal records of respondent.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

A.C. No. 9116

March 12, 2014

NESTOR B. FIGUERAS and BIENVENIDO VICTORIA, JR., Complainants,

vs.
ATTY. DIOSDADO B. JIMENEZ, Respondent.

RESOLUTION

VILLARAMA, JR., J.:

Before us is a petition for review filed by Atty. Diosdado B. Jimenez assailing the
February 19, 2009 Resolution1 of the Board of Governors of the Integrated Bar of
the Philippines (IBP) suspending him from the practice of law for a period of six
months for breach of Rule 12.03,2 Canon 12,3 Canon 17,4 Rule 18.03,5 and Canon
186 of the Code of Professional Responsibility. He likewise assails the June 26, 2011
Resolution7 of the IBP Board of Governors denying his motion for reconsideration.

The facts are as follows:

Congressional Village Homeowners Association, Inc. is the entity in charge of the

affairs of the homeowners of Congressional Village in Quezon City. On January 7,
1993, the Spouses Federico and Victoria Santander filed a civil suit for damages
against the Association and Ely Mabanag8 before the Regional Trial Court (RTC) of
Quezon City, Branch 104 for building a concrete wall which abutted their property
and denied them of their right of way. The spouses Santander likewise alleged that
said concrete wall was built in violation of Quezon City Ordinance No. 8633, S-71
which prohibits the closing, obstructing, preventing or otherwise refusing to the
public or vehicular traffic the use of or free access to any subdivision or community
street.9 The Law Firm of Gonzalez Sinense Jimenez and Associates was the legal
counsel for the Association, with respondent as the counsel of record and handling
lawyer. After trial and hearing, the RTC rendered a decision10 on October 4, 1996 in
favor of the Spouses Santander. The Association, represented by said law firm,
appealed to the Court of Appeals (CA). On February 5, 1999, the CA issued a
Resolution11 in CA-G.R. CV No. 55577 dismissing the appeal on the ground that the
original period to file the appellants brief had expired 95 days even before the first
motion for extension of time to file said brief was filed. The CA also stated that the
grounds adduced for the said motion as well as the six subsequent motions for
extension of time to file brief were not meritorious. The CA resolution became final.

Eight years later or on April 11, 2007, complainants Nestor Figueras and Bienvenido
Victoria, Jr., as members of the Association, filed a Complaint12 for Disbarment
against respondent before the IBP Committee on Bar Discipline (CBD) for violation of
the Code of Professional Responsibility, particularly Rule 12.03, Canon 12; Canon
17; and Rule 18.03, Canon 18 thereof for his negligence in handling the appeal and
willful violation of his duties as an officer of the court.

In his Verified Answer with Counter Complaint,13 respondent denied administrative

liability. He claimed that although his law firm represented the homeowners
association in CA-G.R. CV No. 55577, the case was actually handled by an associate
lawyer in his law office. As the partner in charge of the case, he exercised general

supervision over the handling counsel and signed the pleadings prepared by said
handling lawyer. Upon discovery of the omissions of the handling lawyer,
appropriate sanctions were imposed on the handling lawyer and he thereafter
personally took responsibility and spent personal funds to negotiate a settlement
with Federico Santander at no cost to the Association. No damage whatsoever was
caused to the Association.

Respondent likewise alleged that after he defeated complainant Figueras in the

election for President of the homeowners association in 1996, Figueras and his
compadre, complainant Victoria, stopped paying their association dues and other
assessments. Complainants and other delinquent members of the association were
sanctioned by the Board of Directors and were sued by the association before the
Housing and Land Use Regulatory Board (HLURB). In retaliation, complainants filed
the present disbarment case against him and several other cases against him and
other officers of the association before the HLURB to question, among others, the
legitimacy of the Association, the election of its officers, and the sanctions imposed
by the Association. Thus, he concluded that the disbarment case was filed to harass
him. Respondent added that complainants have no personality to file the
disbarment complaint as they were not his clients; hence, there was likewise no
jurisdiction over the complaint on the part of the IBP-CBD.

As counterclaim, respondent prayed for the outright dismissal of the disbarment

case for lack of merit, the imposition of sanctions on complainants, and the
payment of damages for the filing of the baseless complaint for disbarment.

On October 3, 2008, the Investigating Commissioner of the IBP-CBD found

respondent liable for violation of the Code of Professional Responsibility, particularly
Rule 12.03 of Canon 12, Canon 17, Rule 18.03, and Canon 18 thereof, and
recommended that respondent be suspended from the practice of law for a period
of three to six months, with warning that a repetition of the same or similar offense
shall be dealt with more severely.14

On February 19, 2009, the Board of Governors of the IBP issued Resolution No. XVIII2009-1415 adopting the recommendation with modifications as follows:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with

modification, the Report and Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this Resolution [as] Annex "A"; and,
finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering Respondents breach of Rule 12.03,
Canon 12, Canon 17, Rule 18.03 and Canon 18 of the Code of Professional

Responsibility, Atty. Diosdado B. Jimenez is hereby SUSPENDED from the practice of

law for six (6) months. The Warning imposed against respondent is hereby deleted.

Respondent sought reconsideration of the resolution but his motion was denied in
IBP Resolution No. XIX-2011-480 dated June 26, 2011.16 The IBP Board of Governors
noted that respondents motion was a mere reiteration of matters already discussed
and there were no substantial grounds to disturb the February 19, 2009 Resolution.

Respondent now comes to this Court essentially raising the issue whether the IBP
correctly found him administratively liable for violation of Rule 12.03, Canon 12,
Canon 17, Rule 18.03, and Canon 18 of the Code of Professional Responsibility.

After careful consideration of the records of the case, the Court finds that the
suspension of respondent from the practice of law is proper.

The Court finds no merit in respondents contention that complainants have no

personality to file a disbarment case against him as they were not his clients and
that the present suit was merely instituted to harass him.

The procedural requirement observed in ordinary civil proceedings that only the real
party-in-interest must initiate the suit does not apply in disbarment cases. In fact,
the person who called the attention of the court to a lawyers misconduct "is in no
sense a party, and generally has no interest in the outcome."17

In Heck v. Judge Santos,18 the Court held that "[a]ny interested person or the court
motu proprio may initiate disciplinary proceedings." The right to institute
disbarment proceedings is not confined to clients nor is it necessary that the person
complaining suffered injury from the alleged wrongdoing. Disbarment proceedings
are matters of public interest and the only basis for the judgment is the proof or
failure of proof of the charges.

The Court agrees with the IBP that respondent had been remiss in the performance
of his duties as counsel for Congressional Village Homeowners Association, Inc.
Records show that respondent filed the first motion for extension of time to file
appellants brief 95 days after the expiration of the reglementary period to file said
brief, thus causing the dismissal of the appeal of the homeowners association. To
justify his inexcusable negligence, respondent alleges that he was merely the
supervising lawyer and that the fault lies with the handling lawyer. His contention,

however, is belied by the records for we note that respondent had filed with the CA
an Urgent Motion for Extension, which he himself signed on behalf of the law firm,
stating that a previous motion had been filed but "due to the health condition of the
undersigned counselhe was not able to finish said Appellants Brief within the
fifteen (15) day period earlier requested by him."19 Thus, it is clear that respondent
was personally in charge of the case.

A lawyer engaged to represent a client in a case bears the responsibility of

protecting the latters interest with utmost diligence. In failing to file the appellants
brief on behalf of his client, respondent had fallen far short of his duties as counsel
as set forth in Rule 12.04,20 Canon 12 of the Code of Professional Responsibility
which exhorts every member of the Bar not to unduly delay a case and to exert
every effort and consider it his duty to assist in the speedy and efficient
administration of justice. Rule 18.03, Canon 18 of the same Code also states that:

Canon 18A lawyer shall serve his client with competence and diligence.

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

In In Re: Atty. Santiago F. Marcos21 the Court considered a lawyers failure to file
brief for his client as amounting to inexcusable negligence. The Court held:

An attorney is bound to protect his clients interest to the best of his ability and with
utmost diligence.1wphi1 (Del Rosario vs. Court of Appeals, 114 SCRA 159) A failure
to file brief for his client certainly constitutes inexcusable negligence on his part.
(People vs. Villar, 46 SCRA 107) The respondent has indeed committed a serious
lapse in the duty owed by him to his client as well as to the Court not to delay
litigation and to aid in the speedy administration of justice. (Canons 21 and 22,
Canons of Professional Ethics; People vs. Daban, 43 SCRA 185; People vs. Estocada,
43 SCRA 515).

It has been stressed that the determination of whether an attorney should be

disbarred or merely suspended for a period involves the exercise of sound judicial
discretion.22 The penalties for a lawyers failure to file a brief or other pleading
range from reprimand,23 warning with fine,24 suspension25 and, in grave cases,
disbarment.26 In the present case, we find too harsh the recommendation of the IBP
Board of Governors that respondent be suspended from the practice of law for a
period of six months. Under the circumstances, we deem the penalty of suspension

for one month from the practice of law to be more commensurate with the extent of
respondents violation.

WHEREFORE, the petition is DENIED. Atty. Diosdado B. Jimenez is found

administratively liable for violation of Rule 12.04, Canon 12 and Rule 18.03, Canon
18 of the Code of Professional Responsibility. He is suspended from the practice of
law for one (1) month effective from finality of this Resolution, with warning that a
repetition of the same or similar violation shall be dealt with more severely.

Let a copy of this Resolution be furnished, upon its finality, to the Integrated Bar of
the Philippines and all the courts in the Philippines, and spread on the personal
record of respondent lawyer in the Office of the Bar Confidant, Supreme Court of the
Philippines.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

A.M. No. RTJ-09-2200

April 2, 2014

(formerly OCA I.P.I. No. 08-2834-RTJ)

ANTONIO M. LORENZANA, Complainant,

vs.
JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2, Batangas City,
Respondent.

DECISION

BRION, J.:

We resolve in this Decision the administrative complaints1 filed by Antonio M.

Lorenzana (complainant) against Judge Ma. Cecilia I. Austria (respondent), Regional
Trial Court (RTC), Branch 2, Batangas City.

The records show that the administrative complaints arose from the case "In the
Matter of the Petition to have Steel Corporation of the Philippines Placed under
Corporate Rehabilitation with Prayer for the Approval of the Proposed Rehabilitation
Plan," docketed as SP. Proc. No. 06-7993, where the respondent was the presiding
judge. The complainant was the Executive Vice President and Chief Operating
Officer of Steel Corporation of the Philippines (SCP), a company then under
rehabilitation proceedings.

i. Complaint

In his verified complaint dated January 21, 2008, the complainant alleged that in the
course of SP. Proc. No. 06-7993, the respondent committed Gross Ignorance of the
Law, Grave Abuse of Authority, Gross Misconduct, Grave Incompetence, Irregularity
in the Performance of Duty, Grave Bias and Partiality, Lack of Circumspection,
Conduct Unbecoming of a Judge, Failure to Observe the Reglementary Period and
Violation of the Code of Professional Responsibility, as shown by the following
instances:

1. The respondent appointed Atty. Santiago T. Gabionza, Jr. as rehabilitation receiver

over SCPs objections and despite serious conflict of interest in being the duly
appointed rehabilitation receiver for SCP and, at the same time, the external legal
counsel of most of SCPs creditors; he is also a partner of the law firm that he
engaged as legal adviser.

2. The respondent conducted informal meetings (which she termed as "consultative

meetings" in her Order2 dated May 11, 2007) in places outside her official
jurisdiction (i.e., a first class golf club, a hotel and sports club facilities in Metro
Manila) and where she arbitrarily dictated the terms, parameters and features of the
rehabilitation plan she wanted to approve for SCP. She also announced in the
meetings that she would prepare the rehabilitation plan for SCP.

3. The modified rehabilitation plan submitted by Atty. Gabionza is a replica of what

the respondent dictated to him. Thus, the respondent exceeded the limits of her
authority and effectively usurped and pre-empted the rehabilitation receivers
exercise of functions.

4. The respondent ordered that the proceedings of the informal meetings be offrecord so that there would be no record that she had favored Equitable-PCI Bank
(EPCIB).

5. The respondent had secret meetings and communications with EPCIB to discuss
the case without the knowledge and presence of SCP and its creditors.

6. The respondent appointed Gerardo Anonas (Anonas) as Atty. Gabionzas financial

adviser and, at the same time, as her financial adviser to guide her in the
formulation and development of the rehabilitation plan, for a fee of P3.5M at SCPs
expense. Anonas is also the cousin-in-law of the managing partner of Atty.
Gabionzas law firm.

7. The respondent encouraged EPCIB to raise complaints or accusations against

SCP, leading to EPCIBs filing of a motion to create a management committee.

8. When requested to conduct an evidentiary meeting and to issue a subpoena (so

that SCP could confront EPCIBs witnesses to prove the allegation that there was a
need for the creation of a management committee), the respondent denied SCPs
requests and delayed the issuance of the order until the last minute.

9. At the hearing of September 14, 2007, the respondent intimidated SCPs counsel,
Atty. Ferdinand Topacio; blocked his every attempt to speak; refused to recognize
his appearances in court; and made condescending and snide remarks.

10. The respondent failed to observe the reglementary period prescribed by the
Interim Rules of Procedure on Corporate Rehabilitation (Rules). She approved the
rehabilitation plan beyond the 180 days given to her in the Rules, without asking for
permission to extend the period from the Supreme Court (SC).

11. The respondent erroneously interpreted and applied Section 23, Rule 4 of the
Rules (the courts power to approve the rehabilitation plan) to include the power to
amend, modify and alter it.

12. The respondent took a personal interest and commitment to decide the matter
in EPCIBs favor and made comments and rulings in the proceedings that raised
concerns regarding her impartiality.

13. The respondent adamantly refused to inhibit herself and showed special interest
and personal involvement in the case.

ii. Supplemental Complaint

The complainant likewise filed a supplemental complaint3 dated April 14, 2008
where he alleged that the respondent committed an act of impropriety when she
displayed her photographs in a social networking website called "Friendster" and
posted her personal details as an RTC Judge, allegedly for the purpose of finding a
compatible partner. She also posed with her upper body barely covered by a shawl,
allegedly suggesting that nothing was worn underneath except probably a
brassiere.

The Office of the Court Administrator (OCA) in its 1st Indorsement4 dated March 18,
2008, referred the complaints to the respondent for comment.

a. Comment to January 21, 2008 Complaint

The respondent vehemently denied the allegations against her. While she admitted
that she crafted a workable, feasible rehabilitation plan best suited for SCP, she
maintained that she did so only to render fairness and equity to all the parties to the
rehabilitation proceedings. She also submitted that if indeed she erred in modifying
the rehabilitation plan, hers was a mere error of judgment that does not call for an
administrative disciplinary action. Accordingly, she claimed that the administrative
complaints were premature because judicial remedies were still available.5

The respondent also argued that the rules do not prohibit informal meetings and
conferences. On the contrary, she argued that informal meetings are even
encouraged in view of the summary and non-adversarial nature of rehabilitation
proceedings. Since Section 21, Rule 4 of the Rules6 gives the rehabilitation receiver
the power to meet with the creditors, then there is all the more reason for the
rehabilitation judge, who has the authority to approve the plan, to call and hold
meetings with the parties. She also pointed out that it was SCP which suggested
that informal meetings be called and that she only agreed to hold these meetings
on the condition that all the parties would attend.

As to her alleged failure to observe the reglementary period, she contended that
she approved the rehabilitation plan within the period prescribed by law. She argued
that the matter of granting extension of time under Section 11, Rule 4 of the Rules7
pertains not to the SC, but to the rehabilitation court.

The respondent likewise refuted the allegations of bias and partiality. First, she
claimed that her denial of the complainants motion for inhibition was not due to
any bias or prejudice on her part but due to lack of basis. Second, she argued that
her decision was not orchestrated to favor EPCIB, as evidenced by the fact that
EPCIP itself (as some other creditors did) promptly appealed her decision to the
Court of Appeals (CA). Third, she did not remove Atty. Gabionza as SCPs
rehabilitation receiver because she disagreed that the grounds the complainant
raised warranted his removal.

She also found no merit to the allegation of conflict of interest. Lastly, she
maintained that the rest of the complainants allegations were not substantiated
and corroborated by evidence.

The respondent further alleged that she did not gravely abuse her authority in not
issuing a subpoena as Section 1, Rule 3 of the Interim Rules on Corporate
Rehabilitation of the Rules specifically states that the court may decide matters on
the basis of affidavits and other documentary evidence.

On the allegation of conflict of interest, she maintained that the allegations were not
proven and substantiated by evidence. Finally, the respondent also believed that
there was nothing improper in expressing her ideas during the informal meetings.

b. Comment to April 14, 2008 Supplemental Complaint

In her comment8 on the supplemental complaint, the respondent submitted that

the photos she posted in the social networking website "Friendster" could hardly be
considered vulgar or lewd. She added that an "off-shouldered" attire is an
acceptable social outfit under contemporary standards and is not forbidden. She
further stated that there is no prohibition against attractive ladies being judges; she
is proud of her photo for having been aesthetically made. Lastly, she submitted that
the ruling of the Court in the case of Impao v. Judge Makilala9 should not be applied
to her case since the facts are different.

On July 4, 2008, the complainant filed a reply,10 insisting that the respondents acts
of posting "seductive" pictures and maintaining a "Friendster" account constituted
acts of impropriety, in violation of Rules 2.01,11 2.0212 and 2.03,13 Canon 2 of the
Code of Judicial Conduct.

In a Resolution14 dated September 9, 2009, the Court re-docketed the complaints

as regular administrative matters, and referred them to the CA for investigation,
report and recommendation.

The CAs Report and Recommendation

On November 13, 2009, Justice Marlene Gonzales-Sison, the Investigating Justice,

conducted a hearing, followed by the submission of memoranda by both parties. In
her January 4, 2010 Report and Recommendation,15 Justice Gonzales-Sison ruled
that the complaints were partly meritorious. She found that the issues raised were
judicial in nature since these involved the respondents appreciation of evidence.

She also added that while the CA resolved to set aside the respondents decision in
the rehabilitation proceedings, it was not by reason of her ignorance of the law or
abuse of authority, but because the rehabilitation plan could no longer be
implemented in view of SCPs financial predicament.

On the allegation of grave bias and partiality in handling the rehabilitation

proceedings, Justice Gonzales-Sison ruled that the complainant failed to present any
clear and convincing proof that the respondent intentionally and deliberately acted
against SCPs interests; the complaint merely relied on his opinions and surmises.

On the matter of the respondents inhibition, she noted that in cases not covered by
the rule on mandatory inhibition, the decision to inhibit lies within the discretion of
the sitting judge and is primarily a matter of conscience.

With respect to the respondents informal meetings, Justice Gonzales-Sison found

nothing irregular despite the out-of-court meetings as these were agreed upon by all
the parties, including SCPs creditors. She also found satisfactory the respondents
explanation in approving the rehabilitation plan beyond the 180-day period
prescribed by the Rules.

The foregoing notwithstanding, Justice Gonzales-Sison noted the respondents

unnecessary bickering with SCPs legal counsel and ruled that her exchanges and
utterances were reflective of arrogance and superiority. In the words of the Justice
Gonzales-Sison:

Rather than rule on the manifestations of counsels, she instead brushed off the
matter with what would appear to be a conceited show of a prerogative of her
office, a conduct that falls below the standard of decorum expected of a judge. Her
statements appear to be done recklessly and were uncalled for. xxx. Section 6[,]
Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary states that:
judges shall maintain order and decorum in all proceedings before the court and be
patient, dignified and courteous in relation to litigants, witnesses, lawyers and
others whom the judge deals in an official capacity. Judicial decorum requires judges
to be temperate in their language at all times. Failure on this regard amounts to a
conduct unbecoming of a judge, for which Judge Austria should be held liable.16

On the respondents Friendster account, she believes that her act of maintaining a
personal social networking account (displaying photos of herself and disclosing
personal details as a magistrate in the account) even during these changing times
when social networking websites seem to be the trend constitutes an act of
impropriety which cannot be legally justified by the publics acceptance of this type
of conduct. She explained that propriety and the appearance of propriety are
essential to the performance of all the activities of a judge and that judges shall
conduct themselves in a manner consistent with the dignity of the judicial office.

Finally, Justice Gonzales-Sison noted the CAs May 16, 2006 Decision17 in CA-G.R.
SP No. 100941 finding that the respondent committed grave abuse of discretion in
ordering the creation of a management committee without first conducting an
evidentiary hearing in accordance with the procedures prescribed under the Rules.
She ruled that such professional incompetence was tantamount to gross ignorance
of the law and procedure, and recommended a fine of P20,000.00. She also
recommended that the respondent be admonished for failing to observe strict
propriety and judicial decorum required by her office.

The Action and Recommendation of the OCA

In its Memorandum18 dated September 4, 2013, the OCA recommended the

following:

RECOMMENDATION: It is respectfully recommended for the consideration of the

Honorable Court that:

1) the Report dated January 4, 2010 of Investigating Justice Marlene Gonzales-Sison

be NOTED;

2) respondent Judge Ma. Cecilia I. Austria, Branch 2, Regional Trial Court, Batangas
City, Batangas, be found GUILTY of conduct unbecoming a judge and for violation of
Section 6, Canon 4 of the New Code of Judicial Conduct;

3) respondent Judge Austria be FINED in the amount of Twenty Thousand Pesos

(Php20,000.00); and

4) respondent Judge Austria be ADMONISHED to refrain from further acts of

impropriety with a stern warning that a repetition of the same or any similar act will
be dealt with more severely.19

In arriving at its recommendation the OCA found that the respondent was not guilty
of gross ignorance of the law as the complainant failed to prove that her orders
were motivated by bad faith, fraud, dishonesty or corruption.

The OCA also found that the charges of bias and partiality in handling the
rehabilitation proceedings were not supported by evidence. It accepted the
respondents explanation in the charge of failure to observe the reglementary
period.

Lastly, the OCA maintained that the allegations of grave abuse of authority and
gross incompetence are judicial in nature, hence, they should not be the subject of
disciplinary action. On the other hand, on allegations of conduct unbecoming of a
judge, violation of the Code of Professional Responsibility (Code), lack of
circumspection and impropriety, the OCA shared Justice Gonzales-Sisons
observations that the respondents act of posting seductive photos in her Friendster
account contravened the standard of propriety set forth by the Code.

The Courts Ruling

We agree with the recommendation of both Justice Gonzales-Sison and the OCA for
the imposition of a fine on the respondent but modify the amount as indicated
below. We sustain Justice Gonzales-Sisons finding of gross ignorance of the law in
so far as the respondent ordered the creation of a management committee without
conducting an evidentiary hearing. The absence of a hearing was a matter of basic
due process that no magistrate should be forgetful or careless about.

On the Charges of Grave Abuse of Authority;

Irregularity in the Performance of Duty; Grave
Bias and Partiality; and Lack of Circumspection

It is well settled that in administrative cases, the complainant bears the onus of
proving the averments of his complaint by substantial evidence.20 In the present
case, the allegations of grave abuse of authority, irregularity in the performance of
duty, grave bias and partiality, and lack of circumspection are devoid of merit
because the complainant failed to establish the respondents bad faith, malice or ill
will. The complainant merely pointed to circumstances based on mere conjectures
and suppositions. These, by themselves, however, are not sufficient to prove the
accusations. "[M]ere allegation is not evidence and is not equivalent to proof."21

"[U]nless the acts were committed with fraud, dishonesty, corruption, malice or illwill, bad faith, or deliberate intent to do an injustice, [the] respondent judge may
not be held administratively liable for gross misconduct, ignorance of the law or
incompetence of official acts in the exercise of judicial functions and duties,
particularly in the adjudication of cases."22

Even granting that the respondent indeed erred in the exercise of her judicial
functions, these are, at best, legal errors correctible not by a disciplinary action, but
by judicial remedies that are readily available to the complainant. "An
administrative complaint is not the appropriate remedy for every irregular or
erroneous order or decision issued by a judge where a judicial remedy is available,
such as a motion for reconsideration or an appeal."23 Errors committed by him/her
in the exercise of adjudicative functions cannot be corrected through administrative
proceedings but should be assailed instead through judicial remedies.24

On the Charges of Grave Bias and Partiality

We likewise find the allegations of bias and partiality on the part of the respondent
baseless. The truth about the respondents alleged partiality cannot be determined
by simply relying on the complainants verified complaint. Bias and prejudice cannot
be presumed, in light especially of a judges sacred obligation under his oath of
office to administer justice without respect to the person, and to give equal right to
the poor and rich.25 There should be clear and convincing evidence to prove the
charge; mere suspicion of partiality is not enough.26

In the present case, aside from being speculative and judicial in character, the
circumstances cited by the complainant were grounded on mere opinion and
surmises. The complainant, too, failed to adduce proof indicating the respondents
predisposition to decide the case in favor of one party. This kind of evidence would
have helped its cause. The bare allegations of the complainant cannot overturn the
presumption that the respondent acted regularly and impartially. We thus conclude
that due to the complainants failure to establish with clear, solid, and convincing
proof, the allegations of bias and partiality must fail.

On the Charges of Grave Incompetence

and Gross Ignorance of the Law

We agree with the findings of the OCA that not every error or mistake of a judge in
the performance of his official duties renders him liable.27 "[A]s a matter of policy,
in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial
capacity are not subject to disciplinary action even though such acts are
erroneous."28

In the present case, what was involved was the respondents application of Section
23, Rule 4 of the Rules, which provides:

Sec. 23. Approval of the Rehabilitation Plan. - The court may approve a
rehabilitation plan even over the opposition of creditors holding a majority of the
total liabilities of the debtor if, in its judgment, the rehabilitation of the debtor is
feasible and the opposition of the creditors is manifestly unreasonable.29

The respondent approved the rehabilitation plan submitted by Atty. Gabionza,

subject to the modifications she found necessary to make the plan viable. The
complainant alleged that in modifying the plan, she exceeded her authority and
effectively usurped the functions of a rehabilitation receiver. We find, however, that
in failing to show that the respondent was motivated by bad faith or ill motives in

rendering the assailed decision, the charge of gross ignorance of the law against her
should be dismissed. "To [rule] otherwise would be to render judicial office
untenable, for no one called upon to try the facts or interpret the law in the process
of administering justice can be infallible in his judgment."30

To constitute gross ignorance of the law, it is not enough that the decision, order or
actuation of the judge in the performance of his official duties is contrary to existing
law and jurisprudence. It must also be proven that he was moved by bad faith,
fraud, dishonesty or corruption31 or had committed an error so egregious that it
amounted to bad faith.

In the present case, nothing in the records suggests that the respondent was
motivated by bad faith, fraud, corruption, dishonesty or egregious error in rendering
her decision approving the modified rehabilitation plan. Besides his bare
accusations, the complainant failed to substantiate his allegations with competent
proof. Bad faith cannot be presumed32 and this Court cannot conclude that bad
faith intervened when none was actually proven.

With respect to the action of the respondent in ordering the creation of a

management committee without first conducting an evidentiary hearing for the
purpose, however, we find the error to be so egregious as to amount to bad faith,
leading to the conclusion of gross ignorance of the law, as charged.

Due process and fair play are basic requirements that no less than the Constitution
demands. In rehabilitation proceedings, the parties must first be given an
opportunity to prove (or disprove) the existence of an imminent danger of
dissipation, loss, wastage or destruction of the debtor-companys assets and
properties that are or may be prejudicial to the interest of minority stockholders,
parties-litigants or the general public.33 The rehabilitation court should hear both
sides, allow them to present proof and conscientiously deliberate, based on their
submissions, on whether the appointment of a management receiver is justified.
This is a very basic requirement in every adversarial proceeding that no judge or
magistrate can disregard.

In SCPs rehabilitation proceedings, SCP was not given at all the opportunity to
present its evidence, nor to confront the EPCIB witnesses. Significantly, the CA, in its
May 16, 2006 decision, found that the respondents act of denying SCP the
opportunity to disprove the grounds for the appointment of a management
committee was tantamount to grave abuse of discretion. As aptly observed by
Justice Gonzales-Sison:

[T]he acts of the respondent judge (Judge Austria) in creating a MANCOM without
observing the procedures prescribed under the IRPGICC clearly constitute grave
abuse of discretion amounting to excess of jurisdiction.34

Indeed, while a judge may not be held liable for gross ignorance of the law for every
erroneous order that he renders, this does not mean that a judge need not observe
due care in the performance of his/her official functions.35 When a basic principle of
law is involved and when an error is so gross and patent, error can produce an
inference of bad faith, making the judge liable for gross ignorance of the law.36 On
this basis, we conclude that the respondents act of promptly ordering the creation
of a management committee, without the benefit of a hearing and despite the
demand for one, was tantamount to punishable professional incompetence and
gross ignorance of the law.

On the Ground of Failure to Observe

the Reglementary Period

On the respondents failure to observe the reglementary period prescribed by the

Rules, we find the respondents explanation to be satisfactory.

Section 11, Rule 4 of the previous Rules provides:

Sec. 11. Period of the Stay Order. xxx

The petition shall be dismissed if no rehabilitation plan is approved by the court

upon the lapse of one hundred eighty (180) days from the date of the initial hearing.
The court may grant an extension beyond this period only if it appears by
convincing and compelling evidence that the debtor may successfully be
rehabilitated. In no instance, however, shall the period for approving or
disapproving a rehabilitation plan exceed eighteen (18) months from the date of
filing of the petition.37

Under this provision, the matter of who would grant the extension beyond the 180day period carried a good measure of ambiguity as it did not indicate with
particularity whether the rehabilitation court could act by itself or whether Supreme
Court approval was still required. Only recently was this uncertainty clarified when

A.M. No. 00-8-10-SC, the 2008 Rules of Procedure on Corporate Rehabilitation, took
effect.

Section 12, Rule 4 of the Rules provides:

Section 12. Period to Decide Petition. - The court shall decide the petition within one
(1) year from the date of filing of the petition, unless the court, for good cause
shown, is able to secure an extension of the period from the Supreme Court.38

Since the new Rules only took effect on January 16, 2009 (long after the
respondents approval of the rehabilitation plan on December 3, 2007), we find no
basis to hold the respondent liable for the extension she granted and for the
consequent delay.

On the Ground of Conduct

Unbecoming of a Judge

On the allegation of conduct unbecoming of a judge, Section 6, Canon 6 of the New

Code of Judicial Conduct states that:

SECTION 6. Judges shall maintain order and decorum in all proceedings before the
court and be patient, dignified and courteous in relation to litigants, witnesses,
lawyers and others with whom the judge deals in an official capacity. Judges shall
require similar conduct of legal representatives, court staff and others subject to
their influence, direction or control.39

A judge should always conduct himself in a manner that would preserve the dignity,
independence and respect for himself/herself, the Court and the Judiciary as a
whole. He must exhibit the hallmark judicial temperament of utmost sobriety and
self-restraint.40 He should choose his words and exercise more caution and control
in expressing himself. In other words, a judge should possess the virtue of
gravitas.41

As held in De la Cruz (Concerned Citizen of Legazpi City) v. Judge Carretas,42 a

judge should be considerate, courteous and civil to all persons who come to his
court; he should always keep his passion guarded. He can never allow it to run loose
and overcome his reason. Furthermore, a magistrate should not descend to the

level of a sharp-tongued, ill-mannered petty tyrant by uttering harsh words, snide

remarks and sarcastic comments.

Similarly in Attys. Guanzon and Montesino v. Judge Rufon,43 the Court declared that
"although respondent judge may attribute his intemperate language to human
frailty, his noble position in the bench nevertheless demands from him courteous
speech in and out of court.

Judges are required to always be temperate, patient and courteous, both in conduct
and in language."

Accordingly, the respondents unnecessary bickering with SCPs legal counsel, her
expressions of exasperation over trivial procedural and negligible lapses, her snide
remarks, as well as her condescending attitude, are conduct that the Court cannot
allow. They are displays of arrogance and air of superiority that the Code abhors.

Records and transcripts of the proceedings bear out that the respondent failed to
observe judicial temperament and to conduct herself irreproachably. She also failed
to maintain the decorum required by the Code and to use temperate language
befitting a magistrate. "As a judge, [she] should ensure that [her] conduct is always
above reproach and perceived to be so by a reasonable observer. [She] must never
show conceit or even an appearance thereof, or any kind of impropriety."44

Section 1, Canon 2 of the New Code of Judicial Conduct states that:

SECTION 1. Judges shall ensure that not only is their conduct above reproach, but
that it is perceived to be so in the view of a reasonable observer.

In these lights, the respondent exhibited conduct unbecoming of a judge and thus
violated Section 6, Canon 6 and Section 1, Canon 2 of the New Code of Judicial
Conduct.

On the Ground of Impropriety

We are not unaware of the increasing prevalence of social networking sites in the
Internet a new medium through which more and more Filipinos communicate with

each other.45 While judges are not prohibited from becoming members of and from
taking part in social networking activities, we remind them that they do not thereby
shed off their status as judges. They carry with them in cyberspace the same ethical
responsibilities and duties that every judge is expected to follow in his/her everyday
activities. It is in this light that we judge the respondent in the charge of impropriety
when she posted her pictures in a manner viewable by the public.

Lest this rule be misunderstood, the New Code of Judicial Conduct does not prohibit
a judge from joining or maintaining an account in a social networking site such as
Friendster. Section 6, Canon 4 of the New Code of Judicial Conduct recognizes that
judges, like any other citizen, are entitled to freedom of expression. This right
"includes the freedom to hold opinions without interference and impart information
and ideas through any media regardless of frontiers."46 Joining a social networking
site is an exercise of ones freedom of expression. The respondent judges act of
joining Friendster is, therefore, per se not violative of the New Code of Judicial
Conduct.

Section 6, Canon 4 of the New Code of Judicial Conduct, however, also imposes a
correlative restriction on judges: in the exercise of their freedom of expression, they
should always conduct themselves in a manner that preserves the dignity of the
judicial office and the impartiality and independence of the Judiciary.

This rule reflects the general principle of propriety expected of judges in all of their
activities, whether it be in the course of their judicial office or in their personal lives.
In particular, Sections 1 and 2 of Canon 4 of the New Code of Judicial Conduct
prohibit impropriety and even the appearance of impropriety in all of their activities:

SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all
of their activities.

SECTION 2. As a subject of constant public scrutiny, judges must accept personal

restrictions that might be viewed as burdensome by the ordinary citizen and should
do so freely and willingly. In particular, judges shall conduct themselves in a way
that is consistent with the dignity of the judicial office.

Based on this provision, we hold that the respondent disregarded the propriety and
appearance of propriety required of her when she posted Friendster photos of
herself wearing an "off-shouldered" suggestive dress and made this available for
public viewing.

To restate the rule: in communicating and socializing through social networks,

judges must bear in mind that what they communicate regardless of whether it is
a personal matter or part of his or her judicial duties creates and contributes to
the peoples opinion not just of the judge but of the entire Judiciary of which he or
she is a part. This is especially true when the posts the judge makes are viewable
not only by his or her family and close friends, but by acquaintances and the
general public.

Thus, it may be acceptable for the respondent to show a picture of herself in the
attire she wore to her family and close friends, but when she made this picture
available for public consumption, she placed herself in a situation where she, and
the status she holds as a judge, may be the object of the publics criticism and
ridicule. The nature of cyber communications, particularly its speedy and wide-scale
character, renders this rule necessary.

We are not also unaware that the respondents act of posting her photos would
seem harmless and inoffensive had this act been done by an ordinary member of
the public. As the visible personification of law and justice, however, judges are held
to higher standards of conduct and thus must accordingly comport themselves.47

This exacting standard applies both to acts involving the judicial office and personal
matters.1wphi1 The very nature of their functions requires behavior under
exacting standards of morality, decency and propriety; both in the performance of
their duties and their daily personal lives, they should be beyond reproach.48
Judges necessarily accept this standard of conduct when they take their oath of
office as magistrates.

Imposable Penalty

Under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10SC, gross ignorance of the law or procedure is classified as a serious charge. Under
Section 11(A) of the same Rule, a serious charge merits any of the following
sanctions:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court
may determine, and disqualification from reinstatement or appointment to any
public office, including government-owned or controlled corporations; provided,

however, that the forfeiture of benefits shall in no case include accrued leave
credits;

2. Suspension from office without salary and other benefits for more than three (3),
but not exceeding six (6), months; or

3. A fine of more than P20,000.00, but not exceeding P40,000.00.

On the other hand, conduct unbecoming of a judge is classified as a light offense

under Section 10, Rule 140 of the Rules of Court. It is penalized under Section 11(C)
thereof by any of the following: (1) A fine of not less than P1,000.00 but not
exceeding P10,000.00; (2) Censure; (3) Reprimand; and ( 4) Admonition with
warning.

Judge Austria's record shows that she had never been administratively charged or
found liable for any wrongdoing in the past. Since this is her first offense, the Court
finds it fair and proper to temper the penalty for her offenses.

WHEREFORE, the Court finds Judge Ma. Cecilia I. Austria guilty of GROSS
IGNORANCE OF THE LAW for which she is FINED Twenty-One Thousand Pesos
(P21,000,00). Judge Austria is likewise hereby ADMONISHED to refrain from further
acts of IMPROPRIETY and to refrain from CONDUCT UNBECOMING OF A JUDGE, with
the STERN WARNING that a repetition of the same or similar acts shall be dealt with
more severely.

SO ORDERED.

A.C. No. 9881

June 4, 2014

(Formerly CBD 10-2607)

ATTY. ALAN F. PAGUIA, Petitioner,

vs.
ATTY. MANUEL T. MOLINA, Respondent.

RESOLUTION

SERENO, CJ:

For resolution by this Court is the dismissal by the Integrated Bar of the Philippines
(IBP) Board of Governors of the administrative Complaint for DISHONESTY against
respondent, Atty. Manuel Molina. Atty. Molina allegedly advised his clients to enforce
a contract on the complainant's client who had never been a party to the
agreement.

The facts are as follows:

The case involves a conflict between neighbors in a four-unit compound named

"Times Square" at Times Street, Quezon City. The neighbors are the following: 1) Mr.
And Mrs. Gregorio M. Abreu, clients of Atty. Paguia; 2) Mr. And Mrs. Wilson Lim,
clients of respondent Molina; 3) Dr. and Mrs. Eduardo Yap; and Dr. Belinda San Juan.

The clients of Atty. Molina entered into a contract with the other unit owners save
for Mr. Abreu. The agreement, covered by a document titled "Times Square
Preamble," establishes a set of internal rules for the neighbors on matters such as
the use of the common right of way to the exit gate, assignment of parking areas,
and security. Mr. Abreu, the client of complainant, Atty. Paguia, was not a party to
the contract since the former did not agree with the terms concerning the parking
arrangements.

On 4 February 2010, Atty. Paguia filed a Complaint for Dishonesty1 with the IBP
Commission on Bar Discipline against Atty. Molina2 for allegedly giving legal advice
to the latters clients to the effect that the Times Square Preamble was binding on
Mr. Abreu, who was never a party to the contract.

In his Answer,3 Atty. Molina downplayed the case as a petty quarrel among
neighbors. He maintained that the Times Square Preamble4 was entered into for
purposes of maintaining order in the residential compound. All homeowners, except
Mr. Abreu, signed the document.5

Respondent further stated in his Answer that Mr. and Mrs. Gregorio Abreu filed two
cases against his clients, Mr. And Mrs. William Lim, on the belief that Mr. Abreu was

not bound by the Times Square Preamble. The first case, was filed with the Housing
and Land Use Regulatory Board (HLURB), which was an action to declare the Times
Square Preamble invalid. The second suit was an action for declaratory relief. Both
cases, according to respondent, were dismissed.6

Respondent further claimed that another case had been filed in court, this time by
his client, the Lims. They were prompted to file a suit since Mr. Abreu had allegedly
taken matters into his own hands by placing two vehicles directly in front of the
gate of the Lims, thus blocking the latters egress to Times Street. The Lims filed
with the Regional Trial Court, Branch 96, Quezon City, a Complaint for Injunction and
Damages, coupled with a prayer for the immediate issuance of a Temporary
Restraining Order and/or Preliminary Injunction, which was docketed as Civil Case
No. Q-08-63579. According to respondent, the RTC granted the relief prayed for in
an Order dated 12 December 2008.7

Atty. Molina concluded that the above facts sufficiently served as his answer to the
Complaint.

On 3 August 2010, Investigating Commissioner Victor C. Fernandez rendered a

Report and Recommendation. He recommended dismissal for lack of merit, based
on the following grounds: 1) the complaint consisted only of bare allegations; and 2)
even assuming that respondent Molina gave an erroneous legal advice, he could not
be held accountable in the absence of proof of malice or bad faith.8

On 14 May 2011, the IBP Board of Governors passed Resolution No. XIX-2011-210,
adopting and approving the Report and Recommendation of the Investigating
Commissioner.9

Atty. Paguia filed a Motion for Reconsideration dated 2 August 2011, but was denied
by the IBP Board of Governors on 29 December 2012.10 Notices of the denial were
received by the parties on 21 March 2013.11

No petition for review has been filed with this Court.

It is worth noting that a case is deemed terminated if the complainant does not file
a petition with the Supreme Court within fifteen (15) days from notice of the Boards
resolution. This rule is derived from Section 12(c) of Rule 139-B, which states:

(c) If the respondent is exonerated by the Board or the disciplinary sanction

imposed by it is less than suspension or disbarment (such as admonition,
reprimand, or fine) it shall issue a decision exonerating respondent or imposing such
sanction. The case shall be deemed terminated unless upon petition of the
complainant or other interested party filed with the Supreme Court within fifteen
(15) days from notice of the Boards resolution, the Supreme Court orders
otherwise. (Underscoring supplied)

In this case, Atty. Paguia received notice of the Boards resolution on 21 March 2013,
as evidenced by a registry return receipt. To this date, this Court has yet to receive
a petition for review from Atty. Paguia. Thus, for his failure to file a petition for
review with the Court within 15 days, this case is deemed terminated pursuant to
the above mentioned Section 12(c).

Nevertheless, we have gone over the records but we have no reason to deviate
from the findings of the IBP Board of Governors.

When it comes to administrative cases against lawyers, two things are to be

considered: quantum of proof, which requires clearly preponderant evidence; and
burden of proof, which is on the complainant.12

In the present case, we find that the Complaint is without factual basis. Complainant
Atty. Paguia charges Atty. Molina with providing legal advice to the latters clients to
the effect that the Times Square Preamble is binding on complainants client, Mr.
Abreu, who was not a signatory to the agreement. The allegation of giving legal
advice, however, was not substantiated in this case, either in the complaint or in the
corresponding hearings. Nowhere do the records state that Atty. Paguia saw
respondent giving the legal advice to the clients of the latter. Bare allegations are
not proof.13

Even if we assume that Atty. Molina did provide his clients legal advice, he still
cannot be held administratively liable without any showing that his act was
attended with bad faith or malice. The rule on mistakes committed by lawyers in the
exercise of their profession is as follows:

An attorney-at-law is not expected to know all the law. For an honest mistake or
error, an attorney is not liable. Chief Justice Abbott said that, no attorney is bound to
know all the law; God forbid that it should be imagined that an attorney or a
counsel, or even a judge, is bound to know all the law. x x x.14

The default rule is presumption of good faith. On the other hand, bad faith is never
presumed.1wphi1 It is a conclusion to be drawn from facts. Its determination is
thus a question of fact and is evidentiary.15 There is no evidence, though, to show
that the legal advice, assuming it was indeed given, was coupled with bad faith,
malice, or ill-will. The presumption of good faith, therefore, stands in this case.

The foregoing considered, complainant failed to prove his case by clear

preponderance of evidence.

WHEREFORE, the Resolution of the IBP Board of Governors adopting and approving
the Decision of the Investigating Commissioner is hereby AFFIRMED.

SO ORDERED.